- Certain Defined Terms
. As used in this Agreement (including the Preliminary Statements), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and the plural forms of the terms defined):
"Advance" means a Term Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit Advance, as the context may require.
"Administrative Agent" has the meaning specified in the recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the Administrative Agent maintained by the Administrative Agent with Bank of America at its office at 101 North Tryon Street, 15th Floor, NC1-001-15-04, Charlotte, North Carolina 28255, ABA No. 053-000-196, Account No. 13662122506, Reference: ALPHARMA, Attention: Corporate Credit Services, or such other account maintained by the Administrative Agent and designated by the Administrative Agent as such in a written notice to the Borrowers and each of the Lender Parties.
"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 or is a director or officer of such Person. For purposes of this definition, the term "control" (including the terms "controlling," "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Lead Arranger, the Syndication Agent, the Co-Documentation Agents and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 7.01(b).
"Agreement Value" means, with respect to each Hedge Agreement on any date of determination, an amount equal to:
(a) in the case of any Hedge Agreement documented pursuant to the ISDA Master Agreement, the amount, if any, that would be payable by any of the Loan Parties or any of their Subsidiaries to its counterparty to such Hedge Agreement, as if (A) such Hedge Agreement was being terminated early on such date of determination, (B) such Loan Party or such Subsidiary, as the case may be, was the sole Affected Party (as defined in the applicable Master Agreement) and (C) the Administrative Agent was the sole party determining such payment amount (with the Administrative Agent making such determination pursuant to the provisions of the form of Master Agreement); or
(b) in the case of a Hedge Agreement traded on an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to the Loan Party or the Subsidiary of a Loan Party party to such Hedge Agreement (determined by the Administrative Agent based on the settlement price of such Hedge Agreement on such date); or
(c) in all other cases, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to the Loan Party or the Subsidiary of a Loan Party party to such Hedge Agreement (determined by the Administrative Agent based on the amount, if any, by which (i) the present value of the future cash flows to be paid by such Loan Party or such Subsidiary of a Loan Party, as the case may be, exceeds (ii) the present value of the future cash flows to be received by such Loan Party or such Subsidiary of a Loan Party pursuant to such Hedge Agreement).
"ALI" has the meaning specified in the recital of parties to this Agreement.
"Applicable Lending Office" means (a) with respect to the Issuing Bank and the Swing Line Bank, the Issuing Bank's or the Swing Line Bank's Base Rate Lending Office for all purposes of this Agreement and (b) and with respect to each other Lender Party, such Lender Party's Base Rate Lending Office in the case of a Base Rate Advance and such Lender Party's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means (a) with respect to Eurodollar Rate Advances which are drawn under the Term B Facility, a rate equal to 3.25% per annum and (b) with respect to Eurodollar Rate Advances which are drawn under the Term A Facility or under the Revolving Credit Facility, at any time prior to the six month anniversary of the Closing Date, a rate per annum equal to the percentage set forth below opposite Performance Level I or Performance Level II, as applicable (it being understood that the applicable percentage during such period will in no case be less than that set forth below opposite Performance Level II) and at any time and from time to time thereafter a rate per annum equal to the percentage set forth below opposite the applicable Performance Level at such time and (c) with respect to Base Rate Advances which are drawn under any Facility, a rate per annum equal to the Applicable Margin for Eurodollar Rate Advances (as determined in accordance with this definit ion) less 1.00%.
Performance Level | Eurodollar Rate Advances |
I | 3.00% |
II | 2.75% |
III | 2.50% |
IV | 2.25% |
V | 1.75% |
VI | 1.25% |
For purposes of clause (b) of the immediately preceding sentence, the Applicable Margin for each Eurodollar Rate Advance shall be determined by reference to the Performance Level in effect on the first day of each Interest Period for such Advance.
"Applicable Percentage Fee" means, with respect to the Commitment Fee, at any time prior to the six month anniversary of the Closing Date, a rate per annum equal to the percentage set forth below opposite Performance Level II and at any time and from time to time thereafter a rate per annum equal to the percentage set forth below opposite the applicable Performance Level at such time.
Performance Level | Commitment Fee |
I | 0.50% |
II | 0.50% |
III | 0.50% |
IV | 0.375% |
V | 0.375% |
VI | 0.30% |
"Approved Fund" means, with respect to any Lender, any fund that invests in syndicated bank loans and is advised or managed by such Lender, by the same investment advisor as such Lender or by an Affiliate of such Lender or investment advisor.
"Asset Disposition" has the meaning specified in Section 2.06(b)(ii).
"Asset Transfer" means the acquisition by PartnerCo of either (a) the Acquired Business from BidCo or a Subsidiary of BidCo or (b) the shares of stock of BidCo or a Subsidiary of BidCo (in either case, whose assets and liabilities at that time will consist solely of the Acquired Business).
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender Party and an Eligible Assignee, and accepted by the Administrative Agent and, if applicable, the Borrowers, in accordance with Section 8.07 and in substantially the form of Exhibit C hereto.
"Australian Security Agreement" has the meaning specified in Section 3.01(a)(xxi).
"Available Amount" of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing).
"Bank of America" has the meaning specified in the recital of parties to this Agreement.
"BAS" has the meaning specified in the recital of parties to this Agreement.
"Barbados Stock Pledge" has the meaning specified in Section 3.01(a)(xxiii).
"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." Such 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 the Base Rate resulting from a change in the prime rate established by Bank of America shall become effective on the Business Day on which such change in the prime rate is announced by Bank of America.
"Base Rate Advance" means an Advance that bears interest as provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to each of the Lender Parties, the office of such Lender Party specified as its "Base Rate Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender Party, as the case may be, or such other office of such Lender Party as such Lender Party may from time to time specify to the Borrowers and the Administrative Agent for such purpose.
"Bermuda Security Agreement" has the meaning specified in Section 3.01(a)(xxii).
"Borrower" and "Borrowers" have the meaning specified in the recital of parties to this Agreement.
"Borrowing" means a Term Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.
"Bridge Advance" means any advance under the Bridge Facility by any lender party to the Bridge Facility.
"Bridge Facility" means (i) a subordinated bridge loan facility in form and substance reasonably acceptable to the Administrative Agent and Initial Issuing Bank and entered into by the Company and certain financial institutions and institutional lenders named therein, (ii) a backstop letter of credit issued by a financial institution reasonably acceptable to the Administrative Agent and Initial Issuing Bank for the account of the Company in favor of the Initial Issuing Bank, (iii) cash collateral or other credit support in an amount and form acceptable to the Administrative Agent and the Initial Issuing Bank, (iv) a purchase by way of assignment of all or a portion of the Initial Issuing Bank's rights and obligations under the Tender Offer L/C or (v) a written commitment by BAS or its Affiliates to provide subordinated capital to the Company with a cash interest rate not in excess of 12% per annum, with a term of not less than 8 years, and with financial and other operating covenants less restrictive by a factor of 10% than those contained in this Agreement, and with no additional or more restrictive defaults, required prepayment, required redemption or other similar terms more restrictive on, or less favorable to, Holdings than those contained in this Agreement; in each case pursuant to which the proceeds of such financial arrangement will be used solely to reimburse the Initial Issuing Bank for any drawing made by the beneficiary under the Tender Offer L/C.
"Business Day" means a day of the year on which banks are not required or authorized by law to close in New York, New York and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in U.S. dollar deposits in the London interbank market.
"Capital Assets" means, with respect to any Person, all equipment, fixed assets and real property or improvements of such Person, or replacements or substitutions therefor or additions thereto, that, in accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such Person or such equipment, fixed assets or real property that has a useful life of more than one year.
"Capital Expenditures" means, with respect to any Person for any period, (a) all expenditures made directly or indirectly by such Person during such period for Capital Assets (whether paid in cash or other consideration or accrued as a liability and including, without limitation, all expenditures for maintenance and repairs which are required, in accordance with GAAP, to be capitalized on the books of such Person, in each case, for such period) and (b) solely to the extent not otherwise included in clause (a) of this definition, (i) the aggregate principal amount of all Debt (including, without limitation, Obligations in respect of Capitalized Leases) assumed or incurred during such period in connection with any such expenditures for Capital Assets and (ii) the aggregate amount of any expenditures made in respect of purchases of intangible assets (including, without limitation, the purchase of product registration files) during such period (it being understood that capit al expenditures made in respect of the PST Project are "Capital Expenditures").
"Capitalized Lease" means any lease with respect to which the lessee is required to recognize concurrently the acquisition of property or an asset and the incurrence of a liability in respect of such acquisition in accordance with GAAP.
"Cash Distributions" means, with respect to any Person for any period, all dividends and other distributions on any of the outstanding Equity Interests in such Person plus any payments made or other distributions on any of the Existing Notes, the Exchange Notes or the Debt Securities, all purchases, redemptions, retirements, defeasances or other acquisitions of any of the outstanding Equity Interests in such Person and all returns of capital to the stockholders, partners or members (or the equivalent persons) of such Person, in each case to the extent paid in cash by or on behalf of such Person during such period.
"Cash Equivalents" means any of the following types of Investments, to the extent owned by any Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents):
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof;provided that the full faith and credit of the United States of America is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers' acceptances of, any commercial bank that (i) (A) is a Lender Party or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 90 days from the date of acquisition thereof;
(c) commercial paper in an aggregate amount of no more than $5,000,000 per issuer outstanding at any time issued by any Person organized under the laws of any state of the United States of America and rated at least "Prime-1" (or the then equivalent grade) by Moody's or at least "A-1" (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof;
(d) repurchase obligations with a term of not more than seven (7) days for the underlying securities of the type described in clauses (a) and (b) above entered into with any financial institution meeting the qualifications specified in clause (c) above; and
(e) Investments, classified in accordance with GAAP as Current Assets of any Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Moody's or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
"Change of Control"means the occurrence of any of the following:
(a) at any time after ALI and the EWS Parties cease to beneficially own (within the meaning of Rule 13d-3 promulgated under the Exchange Act) shares of common stock of Holdings with a combined voting power sufficient to elect a majority of the board of directors of Holdings, the acquisition by any person, entity or "group" within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (excluding, for this purpose, Holdings or any of its Subsidiaries, or any employee benefit plan of Holdings or any of its Subsidiaries which acquires beneficial ownership of Voting Interests of Holdings) of beneficial ownership of shares of common stock of Holdings representing 20% or more of the combined voting power of all voting interests of Holdings; or
(b) persons who, as of the Closing Date, constitute the Board of Directors of Holdings (the "Incumbent Board")cease for any reason to constitute at least a majority of the Board of Directors of Holdings,provided that any person becoming a director of Holdings subsequent to the Closing Date whose election, or nomination for election by Holdings' stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; or
(c) any person, entity or group (within the meaning of the Exchange Act as aforesaid) shall have acquired by contract or otherwise, or shall have entered into a contract or binding arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the power to direct or cause the direction of the management or policies of Holdings; or
(d) Holdings shall cease to own 100% of the Equity Interests in the Company; or
(e) any EWS Party (as defined below), or any other Person controlled by any EWS Party, shall create, incur, assume or suffer to exist any Lien on the Equity Interests in Holdings owned by it (other than Liens on the Equity Interests in Holdings that any EWS Party or other Person would otherwise be able to sell, transfer or otherwise dispose of without such sale, transfer or other disposition constituting a Change of Control);
provided, however,that for the purpose of clauses (a) through (d) above, the terms "person," "entity" and "group" shall not be deemed to include (x) ALI,(y)the stockholders of ALI in the case of a distribution of shares of capital stock of Holdings beneficially owned by ALI to the stockholders of ALI, unless a Change of Control of ALI has occurred or occurs concurrently with such a distribution, or in a series of related transactions of which such distribution is a part (determined without regard to the exclusion for stockholders of ALI provided for in this clause (y) of this proviso), provided that the exclusion for stockholders of ALI provided for in this clause (y) shall not apply to any subsequent acquisition of shares of common stock of Holdings by any such person (other than any of the persons described in clause (z) below) or (z) E.W. Sissener, his spouse, any heir or descendant of Mr. Sissener or the spouse of any such heir or des cendant or the estate of Mr. Sissener (each, an "EWS Party"),or any trust or other similar arrangement for the benefit of any EWS Party or any corporation or other person or entity controlled by one or more EWS Parties, or any group controlled by one or more EWS Parties. For purposes of the above sentence, (i) a "liquidation" or "dissolution" shall not be deemed to include any transfer of Holdings property solely to any of the persons described in clauses (x), (y) and (z) of the proviso in such sentence and (ii) a "Change of Control of ALI" shall be determined in accordance with this definition of "Change of Control" (without regard to clauses (x) and (y) in the proviso of the preceding sentence), with each reference to Holdings in such definition being deemed to refer to ALI.
"Clean-Down Period" means a period of 30 consecutive days commencing 15 days prior to the closing of any purchase or other acquisition of the property and assets comprising a division or business unit, or all or a substantial part of the business of, or all of the Equity Interests in, or all or substantially all of the property and assets of, any Person, for, in any case, total cash and non-cash consideration of at least $25,000,000 (it being understood that all indemnities, earnouts and other similar contingent purchase price payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and assets and reserves for liabilities with respect thereto and all assumptions of Debt in connection with such purchases or other acquisitions count towards such $25,000,000 amount).
"Closing Date" means the first date on which all of the conditions precedent to the Initial Extension of Credit set forth in Article III are satisfied, which date shall occur on or prior to November 1, 2001.
"Collateral" means all of the "Collateral" referred to in the Collateral Documents and all of the other property and assets that are or are intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
"Collateral Account" has the meaning specified in the recitals of the Security Agreement (which shall be an interest bearing account).
"Collateral Documents" means, collectively, the Security Agreement, the Intellectual Property Security Agreement, the Mortgages, the Australian Security Agreement, the Bermuda Security Agreement, the Barbados Stock Pledge, the Collateral Pledge Agreement, each of the mortgages, collateral assignments, Security Agreement Supplements, IP Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent and the Lender Parties pursuant to Section 5.01(j), and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
"Collateral Pledge Agreement" means a collateral pledge and security agreement in form and substance reasonably satisfactory to the Administrative Agent and the Initial Issuing Bank, and entered into by the Company, the Initial Issuing Bank and the holders of the Debt Securities (or their representative), pursuant to which the proceeds of the issuance and sale of the Debt Securities are held (i) for the benefit of the holders of the Debt Securities, on a first priority basis, subject to release to such holders upon the occurrence of any redemption under the Debt Securities resulting from the failure of the Asset Transfer to occur by a specified date and (ii) as cash collateral for the Initial Issuing Bank, on a second priority basis, subject to release to the Initial Issuing Bank upon a drawing under the Tender Offer L/C.
"Commitment" means a Term Commitment, a Revolving Credit Commitment, a Letter of Credit Commitment, as the context may require.
"Commitment Fee" has the meaning specified in Section 2.08(a).
"Compliance Certificate" means a compliance certificate substantially in the form of Exhibit K.
"Confidential Information" means information that is furnished to the Administrative Agent or any Lender Party by or on behalf of Holdings or any of its Subsidiaries on a confidential basis, but does not include any such information that (a) is or becomes generally available to the public other than as a result of a breach by the Administrative Agent or such Lender Party of its obligations hereunder or (b) is or becomes available to the Administrative Agent or any such Lender Party from a source other than Holdings or any of its Subsidiaries that is not, to the best knowledge of the Administrative Agent or such Lender Party, acting in violation of a confidentiality agreement with Holdings or any of its Subsidiaries.
"Consolidated" refers to the consolidation of accounts in accordance with GAAP.
"Consolidated EBITDA" means, with respect to any Person for any period, (a) the Consolidated Net Income of such Person and its Subsidiaries for such period;plus (b) provision for taxes based on income or profits of such Person and its Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income;plus(c) Consolidated Interest Expense of such Person and its Subsidiaries for such period, whether or not paid or accrued and whether or not capitalized (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capitalized Leases, imputed interest with respect to sale leaseback transactions, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net o f the effect of all payments made or received pursuant to Hedge Agreements) to the extent that any such expense was deducted in computing such Consolidated Net Income;plus(d) depreciation, amortization (including amortization or impairment of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income;plus (e) all non-cash extraordinary or nonrecurring charges decreasing such Consolidated Net Income for such period;plus(f)all cash extraordinary or nonrecurring charges up to a maximum aggregate amount of $12,000,000 incurred during the twelve-month period after the Closing Date decreasing such Consolidated Net Income for such period;plus (g) all non-cash expenses and charges of Holdings or any of its Subsidiaries related to the Acquisition and the entering into by the Loan Parties of the Loan Documents;plus (h) all cash expenses and charges up to a maximum aggregate amount of $12,000,000 of Holdings or any of its Subsidiaries related to the Acquisition and the entering into by the Loan Parties of the Loan Documents;plus(i) all non-cash non capitalized transaction costs and charges incurred in connection with consummated acquisitions (other than the Acquisition) or divestitures occurring after the Closing Date to the extent such costs and charges are incurred within 6 months prior to or after the consummation of any such transaction;plus(j) all cash non capitalized transaction costs and charges up to a maximum aggregate amount of $2,000,000 incurred in any Fiscal Year in con nection with consummated acquisitions (other than the Acquisition) or divestitures occurring after the Closing Date to the extent such costs and charges are incurred within 6 months prior to or after the consummation of any such transaction;minus(k) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue consistent with past practice, in each case, on a consolidated basis and determined in accordance with GAAP (to the extent applicable) for such period; it being understood that "Consolidated EBITDA" shall, for purposes of calculating compliance with the financial ratios in Sections 5.04(a) and (b), be (1) increased for any Measurement Period in which the purchase or other acquisition of all of the Equity Interests in, or all or substantially all of the property and assets of, any Person, has occurred, by the Consolidated EBITDA of the Person or assets being acquired using the historical financial statements (including audited financial state ments, to the extent available) for such Person and (2) decreased for any Measurement Period in which the sale, transfer or other disposition of all of the Equity Interests in, or all or substantially all of the property and assets of, any Person, has occurred, by, in each case, the Consolidated EBITDA of the Person or assets being acquired or sold, as applicable, using the historical financial statements (including audited financial statements, to the extent available) for such Person, and all such adjustments to the Consolidated EBITDA of Holdings and its Subsidiaries as specified in the foregoing clauses (1) and (2) shall be accompanied by a certification of a Responsible Officer of Holdings stating that such adjustments have been prepared in accordance with generally accepted accounting principles (where applicable).
"Consolidated Interest Expense" means, with respect to any Person for any period, the gross interest expense accrued on all Debt of such Person and its Subsidiaries during such period, determined on a Consolidated basis and in accordance with GAAP for such period, including, without limitation, (a) in the case of Holdings and its Subsidiaries, (i) interest expense accrued in respect of Debt resulting from the Advances and (ii) all fees paid or payable pursuant to Section 2.08(a) and (b) the interest component of all Obligations in respect of Capitalized Leases, (c) commissions, discounts and other fees and charges paid or payable in connection with letters of credit (including, without limitation, the Letters of Credit), (d) all amortization of original issue discount in respect of all Debt of such Person and its Subsidiaries and (e) the net payment, if any, paid or payable in connection with Hedge Agreementsless the net credit, if any, receiv ed in connection with Hedge Agreements.
"Consolidated Net Income" means, for any period, the net income (or net loss) of any Person and its Subsidiaries for such period, determined on a Consolidated basis and in accordance with GAAP but excluding for each such period (without duplication):
(a) the net income (or loss) of any other Person accrued prior to the date on which it became a Subsidiary of such Person or was merged into or consolidated with such Person or any of its Subsidiaries or all or substantially all of the property and assets of such other Person were acquired by such Person or any of its Subsidiaries;
(b) the net income (or loss) of any other Person in which a Person other than such Person or any of its Subsidiaries owns or otherwise holds an Equity Interest, except to the extent such income (or loss) shall have been received in the form of Cash Distributions actually paid to such Person or any of its Subsidiaries by such other Person during such period; and
(c) the net income of any Subsidiary of such Person to the extent that the declaration or payment of any dividends or other distributions or intercompany loans or advances of such income by such Subsidiary is not permitted to be made or paid (whether by contract or otherwise) during such period.
"Constitutive Documents" means, with respect to any Person, the certificate of incorporation or registration (including, if applicable, certificate of change of name), articles of incorporation or association, memorandum of association, charter, bylaws, certificate of limited partnership, partnership agreement, trust agreement, joint venture agreement, certificate of formation, articles of organization, limited liability company operating or members agreement, joint venture agreement or one or more similar agreements, instruments or documents constituting the organization or formation of such Person.
"Contingent Obligation" means, with respect to any Person, any Obligation or arrangement of such Person to guarantee or intended to guarantee any Debt, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor, (b) the Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement (excluding any such arrangements entered into in the ordinary course of business consistent with prior practice) or (c) any Obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any prop erty constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain Revolving Credit or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.
"Conversion", "Convert" and "Converted" each refer to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.09 or 2.10.
"Conversion Date" means either (1) October 1, 2004, if more than $10,000,000 principal amount of the October Convertible Notes (or any notes which replace, refinance or refund the October Convertible Notes, but retain an identical maturity date as the October Convertible Notes) are still outstanding as of such date or (ii) December 1, 2005, if more than $10,000,000 principal amount of the December Convertible Notes (or any notes which replace, refinance or refund the December Convertible Notes, but retain an identical maturity date as the December Convertible Notes) are still outstanding as of such date.
"Current Assets" means, with respect to any Person, all assets of such Person that, in accordance with GAAP, would be classified as current assets on the balance sheet of a company conducting a business the same as or similar to that of such Person, after deducting appropriate and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP.
"Debt" means, with respect to any Person (without duplication for purposes of calculating financial ratios), (a) all indebtedness of such Person for borrowed money, (b) all Obligations of such Person for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of such Person's business and (i) not past due for more than 60 days after the date on which each such trade payable or account payable was created or (ii) if past due for more than 60 days after the date on which each such trade payable or account payable was created, which are being contested in good faith by appropriate procedures and as to which adequate reserves are being maintained in accordance with generally accepted accounting principles), (c) all Obligations of such Person evidenced by notes, bonds, debentures or other similar instruments upon which interest payments are customarily made, (d) all Obligations of such Person created or ar ising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property, and other than standard and ordinary title retention provisions in supply contracts in respect of goods acquired in the ordinary course of business), (e) all Obligations of such Person as lessee under Capitalized Leases, (f) all Obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar facilities, (g) all Obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of Redeemable Preferred Interests, at the greater of its voluntary or involuntary liquidation preferenceplus accrued and u npaid dividends, (h) all Obligations of such Person in respect of Hedge Agreements, take-or-pay agreements or other similar arrangements, valued, in the case of Hedge Agreements, at the Agreement Value thereof, (i) all Off-Balance Sheet Obligations of such Person, if such Obligations would give rise to a claim against such Person in a proceeding referred to in Section 6.01(f); (j) all Contingent Obligations, and (k) all indebtedness and other payment Obligations referred to in clauses (a) through (j) above of another Person secured by (or for which the holder of such indebtedness or other payment Obligations has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment Obligations,provided (i) that if the instrument evidencing the creation of such Lien limits the aggregate s ecured liabilities to a stated maximum amount, the Debt of such Person for the purpose of this subclause (k) shall be equal to such stated maximum amount and (ii) the amount of any contingent liability under any indemnity obligation existing under any document or agreement evidencing such Debt shall, to the extent such contingent liability is unrelated to the underlying financial obligations of such Person in respect of such Debt, be excluded from the definition of "Debt" until such time as when such contingent liability matures or is or should be reported as 'debt' for the purposes of generally accepted accounting principles.
"Debt Securities" means the issuance, in one or more tranches, pursuant to and in accordance with the terms of the commitment letter specified in clause (v) of the definition of "Bridge Facility", of no more than an aggregate principal amount of $300,000,000 of senior subordinated notes by the Company outstanding at any time in a registered public offering or, in a private placement, including a private placement for resale, pursuant to Rule 144A under the Exchange Act (and the issuance of senior subordinated notes in a registered exchange offer in exchange for such initially issued senior subordinated notes).
"December Convertible Notes" means the 3% convertible senior subordinated notes of Holdings due 2006.
"Default" means any Event of Default or any event that would constitute an Event of Default upon the giving of notice or the lapse of time or both.
"Default Interest" has the meaning specified in Section 2.07(b).
"Defaulted Advance" means, with respect to any Lender Party at any time, the portion of any Advance required to be made by such Lender Party to (i) any Borrower pursuant to Section 2.01 or 2.02 at or prior to such time that has not been made by such Lender Party or by the Administrative Agent for the account of such Lender Party pursuant to Section 2.02(e) as of such time or (ii) any Issuing Bank pursuant to Section 2.03(c) at or prior to such time as specified therein. In the event that a portion of a Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the remaining portion 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 Lender Party at any time, any amount required to be paid by such Lender Party to the Administrative Agent or any other Lender Party hereunder or under any other Loan Document 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 Lender Party to (a) the Swing Line Bank pursuant to Section 2.02(b) to purchase a portion of a Swing Line Advance made by the Swing Line Bank, (b) any Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit Advance made by such Issuing Bank, (c) the Administrative Agent pursuant to Section 2.02(e) to reimburse the Administrative Agent for the amount of any Advance made by the Administrative Agent for the account of such Lender Party, (d) any other Lender Party pursuant to Section 2.13 to purchase any participation in Advances owing to such other Lender Par ty and (e) the Administrative Agent or any Issuing Bank pursuant to Section 7.05 to reimburse the Administrative Agent or such Issuing Bank for such Lender Party's ratable share of any amount required to be paid by the Lender Parties to the Administrative Agent or such Issuing Bank as provided therein. In the event that a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the remaining portion of such Defaulted Amount shall be considered a Defaulted Amount originally required to be paid hereunder or under any other Loan Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any action or be the subject of any action or proceeding of a type described in Section 6.01(f) (as if the references to Loan Parties and its Subsidiaries in such Section were references to such Lender Party).
"Designated Capital Markets Transaction" means the incurrence or issuance by (a) Holdings of any Debt in the nature of a replacement, refunding or refinancing of the Existing Notes on substantially identical terms or (b) any Loan Party or any of its Subsidiaries of any Debt with Specified Parameters;provided that such Designated Capital Markets Transaction must be approved by the Administrative Agent (or Required Lenders, as applicable) in accordance with Section 7.01(d).
"Disclosed Litigation" has the meaning specified in Section 3.01(d).
"Eligible Assignee" means with respect to any Facility (a) a Lender; (b) an Affiliate or an Approved Fund of a Lender; or (c) any other Person approved by the Administrative Agent and, so long as no Event of Default has occurred and is continuing at the time the related assignment is effected pursuant to Section 8.07, Holdings (in either case such approval not to be unreasonably withheld or delayed);provided, however, that neither any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under this definition.
"Environmental Action" means any suit, demand, demand letter, claim, notice of noncompliance or violation, notice of liability or potential liability, investigation, consent order or consent agreement relating in any way to any violation of or liability under any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged Hazardous Material related injury or threat to health, safety or the environment, including, without limitation, (a) by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any Governmental Authority or any other Person 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, writ, judgment, injunction, decree or legally binding judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law.
"Equity Interests" means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, 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 controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.
"ERISA Event" means (A) (a) (i) 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 or (ii) the requirements of paragraph (1) of Section 4043(b) of ERISA (without regard to paragraph (2) of such Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA could reasonably be expected to occur with respect to such Plan within the following 30 days; (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 any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the partial or complete withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year pursuant to Section 4063 of ERISA for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (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 constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan and (B) which event results in a liability to a Loan Party in excess of $5,000,000.
"Escrow Agreement" means that certain escrow agreement dated July 12, 2001 made by and among Mayne Nickless Limited, Holdings and The Chase Manhattan Bank, as amended.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to each of the Lenders, the office of such Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, as the case may be (or, if no such office is specified, its Base Rate Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrowers and the Administrative Agent for such purpose.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing:
(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Telerate screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; or
(b) if the rate referenced in the preceding subsection (a) does not appear on such page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; or
(c) if the rates referenced in the preceding subsections (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest (rounded upward to the next 1/100th of 1%) at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan 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 offshore Dollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing means the reserve percentage applicable at any time under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" for any Fiscal Year means, in each case determined on a consolidated basis in accordance with GAAP and as reported in Holdings' Annual Report on Form 10-K, as filed with the Securities and Exchange Commission, (a) net cash provided by operating activities; (b)minus the amount of Capital Expenditures made in cash permitted under this Agreement made or deemed made during such period; (c)minus amounts expended for the purchase or other acquisition of property and assets during such period (to the extent otherwise permitted to be expended under this Agreement); (d)minus the amount of Cash Distributions permitted under this Agreement paid in cash during such period; (e) minusthe amount of"payment for debt issuance costs" as reported in Holdings' Annual Report on Form 10-K, as filed with the Securities and Exchange Commission, during such period; (f)minus (without duplication) Required Principal Payments; (g)minus any voluntary prepayments of any of the Term Advances during such period; and (h)minus any proceeds from "key-man" life insurance or business interruption insurance which are used to prepay any of the Term Advances, to the extent added in calculating pre-tax income; in each case without duplication.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
"Exchange Notes" means any notes issued to certain lenders under the Bridge Facility in exchange for certain notes evidencing the Bridge Advances that have been converted into rollover loans in accordance with the Bridge Facility.
"Existing Debt" means Debt of each Loan Party and its Subsidiaries outstanding immediately before the occurrence of the Closing Date.
"Existing Letters of Credit" means the following letters of credit, in each case outstanding as of the Closing Date: (i) letter of credit #3703630, issued by Bank of America on June 28, 2001 in favor of Wells Fargo Minnesota in the amount of $3,050,342.46 for the account of Holdings and (ii) letter of credit #90001290, issued by Fleet National Bank on June 28, 2001 in favor of Almar Limited Partnership in the amount of $174,273.74 for the account of Holdings.
"Existing Notes" means any or all (as the context requires) of the October Convertible Notes or the December Convertible Notes.
"Extraordinary Receipt" means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including, without limitation non-ordinary course tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments received in respect of Asset Dispositions;provided, however, that an Extraordinary Receipt shall not include (a) cash receipts received from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments (A) in respect of loss or damage to equipment, fixed assets or real property are applied (or in respect of which expenditures were previously incurred) to replace or repair the equipment, fixed assets or rea l property in respect of which such proceeds were received in accordance with the terms of the Loan Documents, so long as (i) such application is made within six months after the occurrence of such damage or loss or (ii) in respect of any replacement or repair for which an expenditure of less than $5,000,000 is made, a binding contract in respect of application of such proceeds is entered into within such six month period and the application thereof is made reasonably soon thereafter or (B) are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto or (b) purchase price adjustments received in respect of asset purchases which are applied within 180 days of receipt to purchase assets in replacement of those for which such purchase price adjustment was received.
"Facility" means the Term A Facility, the Term B Facility, the Revolving Credit Facility, the Swing Line Facility or the Letter of Credit Facility, as the context may require.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upward to the nearest 1/100 of 1%) 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 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 charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
"Fiscal Quarter" means, with respect to Holdings or any of its Subsidiaries, the period commencing January 1 in any Fiscal Year and ending on the next succeeding March 31, the period commencing April 1 in any Fiscal Year and ending on the next succeeding June 30, the period commencing July 1 in any Fiscal Year and ending on the next succeeding September 30 or the period commencing October 1 in any Fiscal Year and ending on the next succeeding December 31, as the context may require, or, if any such Subsidiary was not in existence on the first day of any such period, the period commencing on the date on which such Subsidiary is incorporated, organized, formed or otherwise created and ending on the last day of such period.
"Fiscal Year" means, with respect to Holdings or any of its Subsidiaries, the period commencing on January 1 in any calendar year and ending on the next succeeding December 31 or, if any such Subsidiary was not in existence on January 1 in any calendar year, the period commencing on the date on which such Subsidiary is incorporated, organized, formed or otherwise created and ending on the next succeeding December 31.
"Fixed Charge Coverage Ratio" means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA of Holdings and its Subsidiaries,plus (ii) rentals payable during such period under leases of real or personal, or mixed, property by Holdings and its Subsidiaries to (b) the sum of (i) Consolidated Interest Expense of Holdings and its Subsidiaries, (ii) the aggregate principal amount (or the equivalent in respect of Off-Balance Sheet Obligations) of all Required Principal Payments of Holdings and its Subsidiaries, (iii) the aggregate amount of all Cash Distributions made by or on behalf of Holdings, (iv) rentals payable during such period under leases of real or personal, or mixed, property, and (v) all taxes paid in cash, in each case, for the most recently completed Measurement Period.
"Fully Paid" means, with respect to the Payment Obligations as of any date, that, on or before such date, (a) the principal of (or, as applicable, stated or face amount of) and interest accrued to such date on all outstanding loans, reimbursement obligations in respect of letters of credit and other credit extensions shall have been paid in full in cash, (b) all commitments to lend, issue any letter of credit or other credit extension shall have been terminated in full, (c) all outstanding letters of credit shall have been (i) terminated or (ii) cash collateralized by an amount sufficient in the reasonable judgment of the Administrative Agent to secure any claims thereunder or (iii) supported by one or more letters of credit or other instruments on terms and conditions, and with one or more financial institutions, reasonably satisfactory to the Administrative Agent and (d) all fees, expenses and other amounts then due and payable which constitute Payment Obligations shall ha ve been paid in full in cash;provided,however, that on such date none of the Agents or any Lender Party shall have made any other claims in respect of Payment Obligations against any Loan Party under any provision of any of the Loan Documents that has not been cash collateralized by an amount sufficient in the reasonable judgment of the Administrative Agent and any such Lender Party to secure such claim.
"Funded Debt" of any Person means Debt in respect of the Advances, in the case of a Borrower, and all other Debt of such Person that by its terms matures more than one year after the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year after such date, and including all Off-Balance Sheet Obligations of such Person.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board or similar body, whether federal, state, provincial, territorial, local or foreign.
"Governmental Authorization" means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.
"Guarantee Supplement" has the meaning specified in Section 8(b) of the Guaranties.
"Guaranteed Obligations" has the meaning specified in Section 1 of the Guaranties, as the context may require.
"Guarantor" means any person who is party to a Guaranty.
"Guaranty" means either the Parent Guaranty or the Subsidiary Guaranty (as the context requires).
"Hazardous Materials" means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means, collectively, interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.
"Hedge Bank" means any Person that is a Lender Party or an Affiliate of a Lender Party, in its capacity as a party to a Secured Hedge Agreement.
"Holdings" has the meaning specified in the recital of parties to this Agreement.
"Immaterial Subsidiary" means, as of any date of determination, any direct or indirect Subsidiary of Holdings that on a consolidated basis with its Subsidiaries (i) has assets with an aggregate fair market value of less than $25,000 and (ii) had revenues of less than $25,000 during the latest 12 month period.
"Included Foreign Jurisdictions" means Denmark, Norway, the United Kingdom, Germany, France, Sweden, Australia, the Netherlands, Belgium and Luxembourg.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Information Memorandum" means the information memorandum dated August, 2001 used by the Lead Arranger in connection with the syndication of the Commitments.
"Initial Extension of Credit" means, collectively, the initial Borrowings under one or more of the Facilities, and/or the initial issuances of one or more Letters of Credit, made on the Closing Date.
"Initial Issuing Bank" has the meaning specified in the recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning specified in Section 3.01(a)(v).
"Interest Coverage Ratio" means, for any period, the ratio of (a) Consolidated EBITDA of Holdings and its Subsidiaries at any date of determination to (b) Consolidated Interest Expense of Holdings and its Subsidiaries, in each case for the most recently completed Measurement Period.
"Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last day of the period selected by a Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by that Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months (or such other longer period as each affected Lender may reasonably approve), as such Borrower may, upon notice received by the Administrative Agent not later than 11:00 A.M. (New York time) on the third Business Day prior to the first day of such Interest Period, select;provided, however, that:
(a) a Borrower may not select any Interest Period with respect to any Eurodollar Rate Advance under a Facility that ends after any principal repayment installment date for such Facility unless, after giving effect to such selection, the aggregate principal amount of Base Rate Advances and of Eurodollar Rate Advances having Interest Periods that end on or prior to such principal repayment installment date for such Facility shall be at least equal to the aggregate principal amount of Advances under such Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Borrowing shall be of the same duration;
(c) 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, however, 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 immediately preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of 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.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
"Investment" means, with respect to any Person, any loan or advance to such Person, any purchase or other acquisition of Equity Interests in or Debt of, or the property and assets comprising a division or business unit or all or a substantial part of the business of, such Person, any capital contribution to such Person or any other investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (j) or (k) of the definition of "Debt" set forth in this Section 1.01 in respect of such Person.
"IP Security Agreement Supplement" has the meaning specified in Section 14(g) of the Security Agreement.
"ISDA Master Agreement" means the Master Agreement (Multicurrency-Cross Border) published by the International Swap and Derivatives Association, Inc., as in effect from time to time.
"Issuing Bank" means the Initial Issuing Bank, any issuing bank in respect of the Existing Letters of Credit and each other Person to which the Letter of Credit Commitment hereunder has been assigned pursuant to Section 8.07, in each case for so long as the Initial Issuing Bank or such other Person, as the case may be, shall be a party to this Agreement in such capacity.
"L/C Cash Collateral Account" has the meaning specified in the Preliminary Statements to the Security Agreement (which account shall be an interest-bearing account).
"L/C Related Documents" has the meaning specified in Section 2.03(c)(ii)(A).
"LeadArranger" has the meaning specified in the recital of parties to this Agreement.
"Lender Party" means any Lender, the Issuing Bank or the Swing Line Bank.
"Lenders" means, collectively, the Initial Lenders and each Person that becomes a Lender pursuant to Section 8.07 for so long as such Initial Lender or Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by the Issuing Bank or any Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section 2.03(a).
"Letter of Credit Commitment" means either or both (as the context requires) the Tender Offer L/C Commitment or an Operational Letter of Credit Commitment.
"Letter of Credit Facility" means, at any time, an amount equal to the lesser of (a) the amount of the Issuing Bank's Letter of Credit Commitment at such time and (b) the aggregate of the Tender Offer L/C Commitment and the Operational Letter of Credit Commitment, in each case, as such amount may be reduced at or prior to such time pursuant to this Agreement.
"Letters of Credit" has the meaning specified in Section 2.01(d)(i) and shall include the Tender Offer L/C.
"Lien" means, with respect to any Person, (a) any mortgage, lien (statutory or other), pledge, hypothecation, security interest, charge or other preferential arrangement or encumbrance of any kind (including, without limitation, any agreement to give any of the foregoing), (b) any sale of accounts receivable or chattel paper, or any assignment, deposit arrangement or lease intended as, or having the effect of, security, (c) any easement, right of way or other encumbrance on title to real property or (d) any other interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or any Capitalized Lease or upon or with respect to any property or asset of such Person (including, in the case of Equity Interests, voting trust agreements and other similar arrangements).
"Loan Documents" means, collectively, (a) for purposes of this Agreement and the Notes and any amendment, supplement or other modification hereof or thereof and for all other purposes other than for purposes of the Guaranties and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral Documents and (v) each Letter of Credit Agreement and (b) for purposes of the Guaranties and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) each Guaranty, (iv) the Collateral Documents, (v) each Letter of Credit Agreement and (vi) each Secured Hedge Agreement, in each case as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof and section 8.01.
"Loan Parties" means, collectively, each Borrower, Holdings and each of the Subsidiaries of Holdings party to the Subsidiary Guaranty or any of the Collateral Documents (other than any such Subsidiary which is not a U.S. Subsidiary and is party to any Collateral Document only for the purpose of acknowledging the terms thereof).
"Management Agreement" means the management agreement dated July 12, 2001 made by and among Mayne Nickless Limited and Holdings, as amended.
"Margin Stock" has the meaning specified in Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Material Adverse Change" means any material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of Holdings and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the business, assets, condition (financial or otherwise) liabilities (actual and contingent), operations, properties or prospects of Holdings and its Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform its respective Obligations under any Loan Document or Related Document to which it is a party or (c) the rights and remedies of the Administrative Agent or any Lender Party under any Loan Document or any Related Document.
"Measurement Period" means, at any date of determination, the most recently completed four consecutive Fiscal Quarters of Holdings ending on or prior to such date; it being understood that if less than four consecutive Fiscal Quarters of Holdings have been completed since the Closing Date, "Measurement Period" shall mean, at any date of determination, the most recently completed four consecutive Fiscal Quarters of Holdings ending on or prior to such date, with financial calculations made for such period givingpro forma effect to the Asset Transfer as though it had occurred at the beginning of such four Fiscal Quarter period, and using for such period audited financial statements for the Acquired Business to the extent available, and otherwise using unaudited financial statements prepared in each case in accordance with GAAP.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage Policies" has the meaning specified in Section 3.01(a)(iv)(B).
"Mortgages" has the meaning specified in Section 3.01(a)(iv).
"Multiemployer Plan" means a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) to which any Loan Party or any ERISA Affiliate 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 any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could reasonably be expected to have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any Asset Disposition, or the incurrence or issuance of any Debt, or the sale or issuance of any Equity Interests (including, without limitation, any capital contribution) in any Person, or any Extraordinary Receipt received by or paid to or for the account of any Person, as the case may be, the aggregate amount of cash received from time to time (whether as initial consideration or through payment or disposition of deferred consideration) by or on behalf of such Person for its own account in connection with any such transaction, after deducting therefrom only (without duplication):
(a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees, finder's fees and other similar fees, costs and commissions;
(b) the amount of taxes payable in connection with or as a result of such transaction;
(c) in the case of any sale, lease, transfer or other disposition of any property or asset, the outstanding principal amount of, the premium or penalty, if any, on, and any accrued and unpaid interest on, any Debt (other than the Debt outstanding under the Loan Documents) that is secured by a Lien on the property and assets subject to such sale, lease, transfer or other disposition and is required to be repaid under the terms thereof as a result of such sale, lease, transfer or other disposition; and
(d) in the case of any sale, lease, transfer or other disposition of any property or asset, the amount required to be reserved, in accordance with generally accepted accounting principles as in effect on the date on which the Net Cash Proceeds from such sale, lease, transfer or other disposition are determined, and so reserved, against liabilities under indemnification obligations, liabilities related to environmental matters or other similar contingent liabilities associated with the property and assets subject to such sale, lease, transfer or other disposition that are required to be so provided for under the terms of the documentation for such sale, lease, transfer or other disposition;
in each case to the extent, but only to the extent, that the amounts so deducted are properly attributable to such transaction or to the property or asset that is the subject thereof and are actually paid at the time of receipt of such cash to a Person that is not an Affiliate of such Person or any Loan Party or of any Affiliate of any Loan Party or, in the case of clauses (b) and (d) of this definition, so long as such Person is not otherwise indemnified therefor, are reserved for in accordance with generally accepted accounting principles at the time of receipt of such cash based upon such Person's reasonable estimate of such taxes or contingent liabilities, as the case may be;provided, however, that if, at the time such taxes or such contingent liabilities are actually paid or otherwise satisfied, the amount of the reserve therefor exceeds the amount paid or otherwise satisfied, then an amount equal to the amount of such excess reserve shall constitute "Net Cash Proceeds" for the purposes of Section 2.06(b)(ii)(D), andprovided further that the proceeds of any Asset Disposition made for an amount less than $100,000 shall not constitute Net Cash Proceeds.
"Note" means a Term Note or a Revolving Credit Note, as the context may require.
"Notes Indenture" means the indenture pursuant to which the Debt Securities are issued and governed.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion" has the meaning specified in Section 2.09(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(d)(ii).
"Notice of Swing Line Borrowing" has the meaning specified in Section 2.02(b).
"Notice of Termination" has the meaning specified in Section 2.01(d)(ii).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment, performance or other obligation of such Person of any kind, including, without limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f). Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay Payment Obligations and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender Party, in its sole discretion, may elect to pay or advance on behalf of such Loan Party.
"October Convertible Notes" means the 5.75% convertible subordinated notes of Holdings due 2005.
"OECD" means the Organization for Economic Cooperation and Development.
"Off-Balance Sheet Obligations" means, with respect to any Person, all Obligations of such Person under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing classified as debt for borrowed money for tax purposes but not for accounting purposes in accordance with GAAP.
"Offers" means the offers made by BidCo to acquire all of the capital stock (and options related thereto) of Target, as specified in the Put and Call Option Agreement.
"Open Year" means, with respect to any Person, any year for which United States federal (or other non-U.S. federal jurisdiction, as applicable) income tax returns have been filed by or on behalf of such Person and for which the expiration of the applicable statute of limitations for assessment or collection has not occurred (whether by reason of extension or otherwise).
"Operational Letter of Credit Commitment" means, (i) with respect to the Initial Issuing Bank at any time, the amount set forth opposite the Initial Issuing Bank's name on Schedule I hereto under the caption "Operational Letter of Credit Commitment" or, if the Initial Issuing Bank has entered into one or more Assignments and Acceptances, the amount set forth for the Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 8.07(d) as the Issuing Bank's "Operational Letter of Credit Commitment" and (ii) $25,000,000 in the aggregate; in each case as such amount may be reduced at or prior to such time pursuant to this Agreement.
"Oral Pharmaceuticals Business" means the business of research, development, manufacturing, sales and marketing of generic and proprietary oral pharmaceuticals in the United States and China, as specified in the Put and Call Option Agreement.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent Guaranty" has the meaning specified in Section 3.01(a)(iii).
"Parent Loan" means a loan in a maximum amount of $400,000,000 from Holdings to BidCo Parent, in accordance with the terms specified in the Put and Call Option Agreement for the purposes of funding in part the Acquisition.
"PartnerCo" has the meaning specified in the recital of parties to this Agreement.
"Payment Obligations" shall mean all principal, interest, fees, reimbursement obligations, letter of credit commissions, charges, expenses, attorneys' fees and expenses, indemnities and any other amounts payable by the Loan Parties under and in accordance with the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto.
"Performance Level" means Performance Level I, Performance Level II, Performance Level III, Performance Level IV, Performance Level V or Performance Level VI, as the context may require. For purposes of determining the Performance Level at any date of determination:
(a) not more than one decrease in the Performance Level (thereby resulting in a decrease in the Applicable Margin) shall occur in any three-month period; and
(b) no change in the Performance Level shall be effective until 3 Business Days after the date on which the Administrative Agent receives the Required Financial Information reflecting such change;provided, however,that, if Holdings has not submitted to the Administrative Agent all of the Required Financial Information within 3 Business Days after the date on which such information is otherwise required under Section 5.03(b) or 5.03(c) and Section 5.03(d), as the case may be, the Performance Level shall be deemed to be at Performance Level I for so long as such information has not been submitted.
"Performance Level I" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of greater than 4.75:1.0 for the most recently completed Measurement Period prior to such date.
"Performance Level II" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of greater than 4.00:1.0 but equal to or less than 4.75:1.0 for the most recently completed Measurement Period prior to such date.
"Performance Level III" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of greater than 3.25:1.0 but equal to or less than 4.00:1.0 for the most recently completed Measurement Period prior to such date.
"Performance Level IV" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of greater than 2.50:1.0 but equal to or less than 3.25:1.0 for the most recently completed Measurement Period prior to such date.
"Performance Level V" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of greater than 2.00:1.0 but equal to or less than 2.50:1.0 for the most recently completed Measurement Period prior to such date.
"Performance Level VI" means, at any date of determination, that Holdings and its Subsidiaries shall have maintained a Total Leverage Ratio of equal to or less than 2.00:1.0 for the most recently completed Measurement Period prior to such date.
"Permitted Liens" means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business securing obligations (other than Debt for borrowed money) (i) that are not overdue for a period of more than 60 days or (ii) the amount, applicability or validity of which are being contested in good faith and by appropriate proceedings diligently conducted and with respect to which the relevant Loan Party or any of its Subsidiaries, as the case may be, has established reserves in accordance with generally accepted accounting principles as in effect at such time; (c) pledges or deposits to secure obligat ions under workers' compensation laws or similar legislation (other than in respect of employee benefit plans subject to ERISA) or to secure public or statutory obligations; (d) Liens securing the performance of, or payment in respect of, bids, tenders, government contracts (other than for the repayment of borrowed money), surety and appeal bonds and other obligations of a similar nature incurred in the ordinary course of business; (e) any interest or title of a lessor or sublessor and any restriction or encumbrance to which the interest or title of such lessor or sublessor may be subject that is incurred in the ordinary course of business and, either individually or when aggregated with all other Permitted Liens in effect on any date of determination, could not be reasonably expected to have a Material Adverse Effect; (f) Liens in favor of customs and revenue authorities arising as a matter of law or pursuant to a bond to secure payment of customs duties in connection with the importation of goods; (g) Lien s arising out of judgments or awards that do not constitute an Event of Default under Section 6.01(g) or 6.01(h) and in respect of which Holdings or any of its Subsidiaries subject thereto shall be prosecuting an appeal or proceedings for review in good faith and, pending such appeal or proceedings, shall have secured within 30 days after the entry thereof a subsisting stay of execution and shall be maintaining reserves, in accordance with generally accepted accounting principles as in effect at such time, with respect to any such judgment or award; (h) easements, rights of way, zoning restrictions and other encumbrances on title to real property that were not incurred in connection with and do not secure Debt and do not, either individually or in the aggregate, render title to the property encumbered thereby unmarketable or materially and adversely affect the use of such real property for its intended purposes; (i) any retention of title reserved by any supplier of goods pursuant to such supplier's st andard terms and conditions in connection with any goods supplied by such seller in the ordinary course of business of the relevant Person; and (j) any right of set-off granted in favor of any financial institution in respect of deposit accounts opened and maintained in the ordinary course of such Person's business.
"Person" means an individual, partnership, corporation (including a business trust), limited liability company, unlimited 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.
"Pledged Debt" has the meaning specified in Section 1(d)(iv) of the Security Agreement.
"Pledged Shares" has the meaning specified in Section 1(d)(iii) of the Security Agreement.
"Preferred Interests" means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference or priority over any other Equity Interests issued by such Person upon any distribution of such Person's property and assets, whether by dividend or upon liquidation.
"primary obligations" has the meaning specified in the definition of "Contingent Obligation" set forth in this Section 1.01.
"primary obligor" has the meaning specified in the definition of "Contingent Obligation" set forth in this Section 1.01.
"Pro Rata Share" of any amount means, with respect to any of the Lenders at any time, the product (calculated to 9 decimal places) of (a) a fraction the numerator of which is the amount of such Lender's Commitment(s) under the applicable Facility or Facilities (including the amount of any Swing Line Borrowing and Letter of Credit Advance purchased by such Lender pursuant to Sections 2.02(b)(ii) and 2.03(c), respectively) at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01 at or prior to such time, such Lender's Commitment(s) under the applicable Facility or Facilities as in effect immediately prior to such termination) and the denominator of which is the aggregate amount of such Facility or Facilities at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01 at or prior to such time, the applicable Facility or Facilities as in effect immediately prior to such termination)multipl ied by (b) such amount.
"PST Project" means the agreement between the Company and, among others, Natinco B.V., a Netherlands company, relating to the license and sale of certain technology in respect of porcine somatotropin.
"Put and Call Option Agreement" means the put and call option agreement dated July 12, 2001 made by and among BidCo Parent, BidCo, PartnerCo and Holdings (including all exhibits and schedules thereto, as amended.
"Redeemable" means, with respect to any Equity Interest, Debt or other right or Obligation, any such Equity Interest, Debt or other right or Obligation that (a) the issuer has undertaken to redeem at a fixed or determinable date or dates, whether by operation of a sinking fund or otherwise, or upon the occurrence of a condition not solely within the control of the issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(v).
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Put and Call Option Agreement, the Management Agreement, the Parent Loan Agreement, the Escrow Agreement and all other agreements, instruments and documents relating to the Transaction.
"Reorganization" has the meaning specified in the Preliminary Statements to this Agreement.
"Required Financial Information" means, at any date of determination, the Consolidated financial statements of Holdings and its Subsidiaries most recently delivered to the Administrative Agent and the Lender Parties on or prior to such date pursuant to, and satisfying all of the requirements of, Section 5.03(b) or 5.03(c), as the case may be, and accompanied by the certificates and other information required to be delivered therewith pursuant to Section 5.03.
"Required Lenders" means, at any time, Lenders owed or holding at least a majority in interest of the sum of (a) the aggregate principal amount of the Advances outstanding at such time and (b) the aggregate Available Amount of all Letters of Credit outstanding at such time, or, if no such principal amount and no Letters of Credit are outstanding at such time, Lenders holding at least a majority in interest of the aggregate of the Term Commitments and the Revolving Credit Commitments at such time;provided, however, that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time, (B) such Lender's Pro Rata Share of the aggregate Available Amount of all Letters of Credit issued and outstanding at such time and (C) the Unused Revolving Cred it Commitment of such Lender at such time. For purposes of this definition, the aggregate principal amount of Swing Line Advances owing to the Swing Line Bank and of Letter of Credit Advances owing to the Issuing Bank and the Available Amount of each Letter of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments.
"Required Principal Payments" means, with respect to any Person for any period, the sum of all regularly scheduled principal payments or redemptions and all mandatory prepayments, repurchases, redemptions or similar acquisitions for value of outstanding Funded Debt made during such period.
"Requirements of Law" means, with respect to any Person, all laws, constitutions, statutes, treaties, ordinances, rules and regulations, all orders, writs, decrees, injunctions, judgments, determinations or awards of an arbitrator, a court or any other Governmental Authority, and all Governmental Authorizations, binding upon or applicable to such Person or to any of its properties, assets or businesses.
"Requisite Class Lenders" means, at any time, for the class of Lenders having a (i) Term A Commitment, Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Term A Advances outstanding at such time, (ii) Term B Commitment, Lenders owed or holding at least a majority in interest of the aggregate principal amount of the Term B Advances outstanding at such time and (iii) Revolving Credit Commitment, Lenders owed or holding at least a majority in interest of the sum of (a) the aggregate principal amount of the Revolving Credit Advances outstanding at such time and (b) the aggregate Available Amount of all Letters of Credit outstanding at such time, or, if no such principal amount and no Letters of Credit are outstanding at such time, Lenders holding at least a majority in interest of the aggregate of the Revolving Credit Commitments at such time;provided, however, that if any Lender shall be a Defaulting Lender a t such time, there shall be excluded from the determination of Requisite Class Lenders at such time (A) the aggregate principal amount of the Advances owing to such Lender (in its capacity as a Lender) and outstanding at such time, (B) such Lender's Pro Rata Share of the aggregate Available Amount of all Letters of Credit issued by such Lender and outstanding at such time and (C) the Unused Revolving Credit Commitment of such Lender at such time. For purposes of this definition, the aggregate principal amount of Swing Line Advances owing to the Swing Line Bank and of Letter of Credit Advances owing to the Issuing Bank and the Available Amount of each Letter of Credit shall be considered to be owed to the Lenders ratably in accordance with their respective Revolving Credit Commitments.
"Responsible Officer" means, with respect to Holdings or any of its Subsidiaries, the chief executive officer, the president, the chief financial officer, the principal accounting officer or the treasurer (or the equivalent of any of the foregoing) or any other officer, partner or member (or person performing similar functions) of Holdings or any such Subsidiary responsible for overseeing the administration of, or reviewing compliance with, all or any portion of this Agreement or any of the other Loan Documents.
"Revolving Credit Advance" has the meaning specified in Section 2.01(b).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type made by the Lenders.
"Revolving Credit Commitment" means, with respect to any Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Revolving Credit Commitment" or, if such Lender has entered into one or more Assignments and Acceptances, the amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(d) as such Lender's "Revolving Credit Commitment", as such amount may be reduced pursuant to this Agreement.
"Revolving Credit Facility" means, at any time, the aggregate amount of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note issued by a Borrower payable to the order of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the aggregate indebtedness of that Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
"Secured Hedge Agreement" means any interest rate Hedge Agreement required under Article V that is entered into by and between any Loan Party and any Hedge Bank.
"Secured Obligations" has the meaning specified in Section 2 of the Security Agreement.
"Secured Parties" means, collectively, the Agents, the Lender Parties and the Hedge Banks.
"Security Agreement" has the meaning specified in Section 3.01(a)(ii).
"Security Agreement Supplement" has the meaning specified in Section 22(b) of the Security Agreement.
"Senior Debt" means, as of the date of determination, each Borrowing (other than the Tender Offer L/C) which is outstanding as of such date plus all other amounts or liabilities which may be outstanding under any of the Loan Documents as of such date (including, without limitation, all Obligations of any Loan Party under any of the Secured Hedge Agreements valued at the Agreement Value thereof).
"Senior Leverage Ratio" means, at any date of determination, the ratio of (a) all Senior Debt outstanding on such date to (b) Consolidated EBITDA of Holdings and its Subsidiaries for the most recently completed Measurement Period prior to such date.
"Single Employer Plan" means a single employer plan (as defined in Section 4001(a)(15) of ERISA) that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in t he 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.
"Specified Parameters" means any Debt (a) which is unsecured, and the payment of principal of which is fully subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all Payment Obligations under the Loan Documents, (b) which is at or below a market rate of interest for comparable instruments at such time and (c) which has no additional or more restrictive covenants, defaults, required prepayment, required redemption or other similar terms more restrictive on, or less favorable to, Holdings and its Subsidiaries than those contained in the Existing Notes.
"Standby Letter of Credit" means any Letter of Credit issued under the Letter of Credit Facility, other than a Trade Letter of Credit.
"Subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, unlimited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding shares of capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture, limited liability company or unlimited liability company or (c) the beneficial interest in such trust or estate, is 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,provided that (i) the Persons constituting the Acquired Business shall not be deemed Subsidiaries for the purposes of this definition notwithstanding the rights and powers Holdings exercises over such Persons by virtue of the Management Agreement, it being understood that such Persons shall be deemed Subsidiaries once the Asset Transfer has been completed to the extent such Persons qualify as a "Subsidiary" under any of sub-clause (a), (b) or (c) of this definition at such time and (ii) WYNCO shall not constitute a "Subsidiary" for the purposes of this definition until such time (if any) as it qualifies as a "Subsidiary" pursuant to clause (a) of this definition.
"Subsidiary Borrowers" has the meaning specified in the recital of parties to this Agreement.
"Subsidiary Borrowing Agreement" means a subsidiary borrowing agreement in substantially the form of Exhibit L hereto.
"Subsidiary Guaranty" has the meaning specified in Section 3.01(a)(iii).
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries outstanding immediately before and after the Closing Date.
"Swing Line Advance" means an advance made by (a) the Swing Line Bank pursuant to Section 2.01(c) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" has the meaning specified in the recital of parties to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.01(c).
"Target" has the meaning specified in the recitals.
"Taxes" has the meaning specified in Section 2.12(a).
"Tender Offer L/C Commitment" means, (i) with respect to the Initial Issuing Bank at any time, the amount set forth opposite the Initial Issuing Bank's name on Schedule I hereto under the caption "Tender Offer L/C Commitment" or, if the Initial Issuing Bank has entered into one or more Assignments and Acceptances, the amount set forth for the Initial Issuing Bank in the Register maintained by the Administrative Agent pursuant to Section 8.07(d) as the Initial Issuing Bank's "Tender Offer L/C Commitment" and (ii) $260,000,000 in the aggregate; in each case as such amount may be reduced pursuant to this Agreement.
"Tender Offer L/C" means a letter of credit substantially in the form of Exhibit J hereto.
"Term A Advance" means an advance made by any Lender under the Term A Facility.
"Term A Borrowing" means a borrowing consisting of simultaneous Term A Advances of the same Type made by the Lenders.
"Term A Commitment" means, with respect to any Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Term A Commitment" or, if such Lender has entered into one or more Assignments and Acceptances, the amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(d) as such Lender's "Term A Commitment", as such amount may be reduced or amended pursuant to this Agreement.
"Term A Facility" means, at any time, the aggregate Term A Advances of all Lenders at such time.
"Term Advance" means either or both (as the context requires) a Term A Advance or a Term B Advance.
"Term B Advance" means an advance made by any Lender under the Term B Facility.
"Term B Borrowing" means a borrowing consisting of simultaneous Term B Advances of the same Type made by the Lenders.
"Term B Commitment" means, with respect to any Lender at any time, the amount set forth opposite such Lender's name on Schedule I hereto under the caption "Term B Commitment" or, if such Lender has entered into one or more Assignments and Acceptances, the amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 8.07(d) as such Lender's "Term B Commitment", as such amount may be reduced or amended pursuant to this Agreement.
"Term B Facility" means, at any time, the aggregate Term B Advances of all Lenders at such time.
"Term Borrowing" means either or both (as the context requires) a Term A Borrowing or a Term B Borrowing.
"Term Commitment" means either a Term A Commitment or a Term B Commitment.
"Term Facilities" means, at any time, the aggregate Term A Commitments and Term B Commitments of all Lenders at such time.
"Term Note" means a promissory note issued by a Borrower payable to the order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the indebtedness of that Borrower to such Lender resulting from any Term Advance made by such Lender.
"Termination Date" means (a) in respect of Term A Advances, Letters of Credit, Revolving Credit Advances, Letter of Credit Advances and Swing Line Advances, the earliest of (i) the sixth anniversary of the Closing Date, (ii) the date of termination in whole of the Commitments pursuant to Section 2.05 or 6.01 and (iii) the Conversion Date; and (b) in respect of Term B Advances the earliest of (i) the seventh anniversary of the Closing Date, (ii) the date of termination in whole of the Commitments pursuant to Section 2.05 or 6.01 and (iii) the Conversion Date.
"Total Leverage Ratio" means, at any date of determination, the ratio of (a) (i) all Funded Debt of Holdings and its Subsidiaries outstanding on such dateplus (ii) to the extent not otherwise included in subclause (a)(i) of this definition, all Debt of Holdings and its Subsidiaries outstanding on such date that would (or would be required to) appear on the Consolidated balance sheet of Holdings and its Subsidiaries to (b) Consolidated EBITDA of Holdings and its Subsidiaries for the most recently completed Measurement Period prior to such date.
"Trade Letter of Credit" means any Letter of Credit that is issued under the Letter of Credit Facility for the benefit of a supplier of inventory to any Borrower or any of its Subsidiaries to effect payment for such inventory (it being understood that the Issuing Bank shall be entitled to rely upon any certification, notice, instrument, writing, or other communication (including, without limitation, any thereof by telephone or telecopy) by or on behalf of Holdings or any of its Subsidiaries which identifies the beneficiary of any Trade Letter of Credit as a supplier of inventory to any Borrower or any of its Subsidiaries).
"Transaction" means, collectively, (a) the Acquisition, (b) the issuance of the Tender Offer L/C, (c) the Parent Loan, (d) the Asset Transfer, (e) the ALI Subordinated Note Exchange, (f) all transactions related to the Acquisition and the Asset Transfer, (g) the entering into by the Loan Parties and their applicable Subsidiaries of the Loan Documents and the Related Documents to which they are or are intended to be a party, (h) the refinancing of certain outstanding Debt of Holdings and its Subsidiaries and the termination of all commitments thereunder and (i) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
"Type" refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to any Lender at any time, (a) such Lender's Revolving Credit Commitment at such timeminus (b) the sum of (i) the aggregate principal amount of all Revolving Credit Advances, Swing Line Advances and Letter of Credit Advances made by such Lender (in its capacity as a Lender) and outstanding at such time and (ii) such Lender's Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances made by the Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line Advances made by the Swing Line Bank pursuant to Section 2.01(c) and outstanding at such time.
"U.S. Subsidiary" means any direct or indirect Subsidiary of Holdings incorporated or formed under the laws of a state of the United States or any territory thereof.
"Voting Interests" means shares of capital stock issued by a corporation, or equivalent Equity 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.
"Weighted Average Life to Maturity" means, on any date and with respect to the Term A Facility, the Term B Facility or any Incremental Loans (as defined in Section 2.17) to supplement either such Facility, an amount equal to (i) the sum of the products of (x) the amount of each scheduled repayment of the Term A Facility, the Term B Facility or Incremental Facility (as defined in Section 2.17), as the case may be, to be made after such date, multiplied by (y) the number of days from such date to the date of such scheduled repayment divided by (ii) the aggregate outstanding principal amount of such Term A Facility, Term B Facility or Incremental Facility, as the case may be.
"Welfare Plan" means a welfare plan (as defined in Section 3(1) of ERISA) that is maintained for employees of any Loan Party or in respect of which any Loan Party could reasonably be expected to have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of Title IV of ERISA.
"WYNCO" means WYNCO LLC, a Delaware limited liability company.
- Computation of Time Periods; Other Definitional Provisions
. 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". References in the Loan Documents to any agreement or contract "as amended" shall mean and be a reference to such agreement or contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.
- 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 Consolidated financial statements of Holdings and its Subsidiaries referred to in Section 4.01(g) ("GAAP");provided that GAAP shall include and take account of all effects resulting from the change in FASB142 enacted prior to the Closing Date (whether or not the formal effective date with respect to some applications falls thereafter).
- Currency Equivalents Generally
. Any amount specified in this Agreement (other than in Articles II, VII and VIII) or any of the other Loan Documents to be in U.S. dollars shall also include the equivalent of such amount in any currency other than U.S. dollars, such equivalent amount to be determined at the rate of exchange quoted by Bank of America in Charlotte, North Carolina at the close of business on the Business Day immediately preceding any date of determination thereof, to prime banks in New York, New York for the spot purchase in the New York foreign exchange market of such amount in U.S. dollars with such other currency.
- The Advances and the Letters of Credit; Subsidiary Borrowers
. (a)Term A Facility and Term B Facility: The Term Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance (consisting of a Term Advance pursuant to the Term A Facility in an amount equal to its Pro Rata Share of the Term A Commitment and a Term Advance pursuant to the Term B Facility in an amount equal to its Pro Rata Share of the Term B Commitment) in U.S. dollars to the Company on the Closing Date. The Term A Borrowing shall consist of Term A Advances made simultaneously by the Lenders in accordance with their respective Pro Rata Shares of the Term A Facility. The Term B Borrowing shall consist of Term B Advances made simultaneously by the Lenders in accordance with their respective Pro Rata Shares of the Term B Facility. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.
(b)The Revolving Credit Advances. Subject to Section 2.01(e), each Lender severally agrees, on the terms and conditions hereinafter set forth, to make advances (each, a "Revolving Credit Advance") in U.S. dollars to any Borrower from time to time on any Business Day on or after the Closing Date until the Termination Date, in each case in an amount not to exceed the Unused Revolving Credit Commitment of such Lender at such time. Each Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which shall be used solely to repay or prepay in full outstanding Swing Line Advances or the outstanding Letter of Credit Advances) or, if less, the amount of the aggregate Unused Revolving Credit Commitments at such time. Each Revolving Credit Borrowing shall consist of Revolving Credit Advances made simultaneously by the Lenders in accordance with their respective P ro Rata Shares of the Revolving Credit Facility. Within the limits of each Lender's Unused Revolving Credit Commitment in effect from time to time, any Borrower may borrow under this Section 2.01(b), prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(b).
(c)The Swing Line Advances. Subject to Section 2.01(e), any Borrower may request the Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and conditions hereinafter set forth, Swing Line Advances to the relevant Borrower from time to time on any Business Day on or after the Closing Date until the Termination Date (i) in an aggregate amount not to exceed $50,000,000 at any time outstanding (the "Swing Line Facility") and (ii) in an amount for each such Swing Line Borrowing not to exceed the aggregate Unused Revolving Credit Commitments of the Lenders at such time. No Swing Line Advance shall be used for the purpose of funding the payment of principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral multiple of $250,000 in excess thereof and shall be made as a Base Rate Advance. Within the limits of the first sentence of this Section 2.01(c), so long as the Swing Line Bank , in its sole discretion, elects to make Swing Line Advances, each Borrower may borrow under this Section 2.01(c), repay pursuant to Section 2.04(c) or prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d)Letters of Credit. (i) Subject to Section 2.01(e), the Issuing Bank agrees, in reliance upon the Agreements of the Lenders set forth in Section 2.03 and on the terms and conditions hereinafter set forth, to issue letters of credit (the "Letters of Credit") in U.S. dollars for the account of the relevant Borrower from time to time (a) in respect of the Tender Offer L/C, only on the Closing Date and no other day before or after the Closing Date and (b) in respect of other Letters of Credit, on any Business Day on or after the Closing Date until 5 days before the scheduled Termination Date (i) in an Available Amount for each such Letter of Credit issued by such Issuing Bank not to exceed at any time (A) in respect of the Tender Offer L/C, the unused Issuing Bank's Tender Offer L/C Commitment at such time; (B) in respect of Standby Letters of Credit and Trade Letters of Credit, the unused Issuing Bank's Operational Letter of Credit Commitm ent at such time and (ii) in an aggregate Available Amount for all Letters of Credit not to exceed the lesser of (A) the Letter of Credit Facility at such time and (B) the aggregate Unused Revolving Credit Commitments of the Lenders at such time. No Trade Letter of Credit shall have an expiration date later than the earlier of (1) 180 days after the issuance thereof and (2) 5 days prior to the scheduled Termination Date. No Standby Letter of Credit shall have an expiration date (including all rights of any Borrower or the beneficiary of such Standby Letter of Credit to require renewal) later than the earlier of (x) 5 days prior to the scheduled Termination Date and (y) one year after the date of issuance thereof, but any such Standby Letter of Credit may by its terms be renewable annually on the terms set forth in clause (ii) of this Section 2.01(d). Within the limits of the Letter of Credit Facility, and subject to the limits referred to above, any Borrower may request the issuance of Letters of Cre dit (other than the Tender Offer L/C) under this Section 2.01(d)(i), repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c) and request the issuance of additional Letters of Credit (other than the Tender Offer L/C) under this Section 2.01(d)(i). Once the Tender Offer L/C is drawn and repaid it shall not be available for re-drawing.
(ii) Each Standby Letter of Credit may by its terms be renewable annually upon notice (a "Notice of Renewal") given to the Issuing Bank and the Administrative Agent on or prior to any date for notice of renewal set forth in such Letter of Credit but in any event at least three Business Days prior to the date of the proposed renewal of such Standby Letter of Credit and upon fulfillment of the applicable conditions set forth in Article III unless such Issuing Bank has notified the beneficiary (with a copy to the Administrative Agent) on or prior to the date for notice of termination set forth in such Letter of Credit but in any event at least 30 Business Days prior to the date of automatic renewal of its election not to renew such Standby Letter of Credit (a "Notice of Termination");provided that the terms of each Standby Letter of Credit that is automatically renewable annually (A) shall require the Issuing Bank to give the beneficiary of such Sta ndby Letter of Credit notice of any Notice of Termination, (B) shall permit such beneficiary, upon receipt of such notice, to draw under such Standby Letter of Credit prior to the date such Standby Letter of Credit otherwise would have been automatically renewed and (C) shall not permit the expiration date (after giving effect to any renewal) of such Standby Letter of Credit in any event to be extended to a date later than 5 days prior to the scheduled Termination Date. If either a Notice of Renewal is not given by the relevant Borrower or a Notice of Termination is given by the Issuing Bank pursuant to the immediately preceding sentence, such Standby Letter of Credit shall expire on the date on which it otherwise would have been automatically renewed;provided,however, that in the absence of receipt of a Notice of Renewal and, in the absence of any timely notice given by the relevant Borrower to the Administrative Agent requesting there be no automatic renewal, the Issuing Bank may in its di scretion, unless instructed to the contrary by the Administrative Agent, deem that a Notice of Renewal had been timely delivered and, in such case, a Notice of Renewal shall be deemed to have been so delivered for all purposes under this Agreement.
(iii) The Issuing Bank shall not issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Requirements of Law applicable to the Issuing Bank or any request or directive (whether or not having the force of law, but if not having the force of law, being a request or directive with which the Issuing Bank is accustomed to complying) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and wh ich the Issuing Bank in good faith deems material to it; or
(B) the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank.
(iv)Applicability of ISP98 and UCP.Unless otherwise expressly agreed by the Issuing Bank and the relevant Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of 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) shall apply to each Standby 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 (the "ICC") at the time of issuance (including the ICC decision published by the Commission on Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro)), shall apply to each commercial Letter of Credit.
(v)Existing Letters of Credit. It is understood and agreed that the Existing Letters of Credit shall be deemed to be Letters of Credit for all purposes under this Agreement and the other Loan Documents and any issuing bank in respect of the Existing Letters of Credit shall be deemed to be an Issuing Bank for all purposes under this Agreement and the other Loan Documents.
(e)Restrictions on Drawings Under the Revolving Credit Facility. No more than an aggregate principal amount of $50,000,000 may be drawn under the Revolving Credit Facility by the Subsidiary Borrowers.
(f)New Subsidiary Borrowers. At any time at which no Default has occurred and is continuing, the Company may designate one or more of its direct or indirect wholly-owned U.S. Subsidiaries as a "Subsidiary Borrower" by delivery to the Administrative Agent of a Subsidiary Borrowing Agreement executed by the Company and such Subsidiary, and upon such delivery such Subsidiary shall be a Subsidiary Borrower for all purposes of this Agreement.
(g)Clean-Down. Notwithstanding the provisions of Sections 2.01(b), 2.01(c) and 2.01(d), no Borrowings may be made under Section 2.01(b) or 2.01(c), and no Letters of Credit may be issued under Section 2.01(d), during any Clean-Down Period, unless the sum of the aggregate principal amount of Revolving Credit Advances, Letter of Credit Advances and Swing Line Advancesplus the aggregate Available Amount of Letters of Credit outstanding after giving effect to such Borrowing or the issuance of such Letter of Credit shall not exceed $200,000,000.
- Making the Advances
. (a) Except as otherwise provided in Section 2.02(b) or 2.03 or in respect of any Borrowing requested to be made on the date of the Initial Extension of Credit, in which case notice will be given not later than 12:00 noon (New York time) on the Business Day prior to the date of the Initial Extension of Credit, each Borrowing (other than a Swing Line Borrowing) shall be made on notice, given not later than 11:00 A.M. (New York time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing comprised of Eurodollar Rate Advances, or on the first Business Day prior to the date of the proposed Borrowing in the case of a Borrowing comprised of Base Rate Advances, by the relevant Borrower to the Administrative Agent, which shall give prompt notice thereof to each Lender by telecopier. Each notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately in writing, or by telecopier, in substanti ally the form of Exhibit B-1 hereto, shall be duly executed by a Responsible Officer of the relevant Borrower, and shall specify therein: (i) the requested date of such Borrowing (which shall be a Business Day); (ii) the Facility under which such Borrowing is requested to be made; (iii) the Type of Advances requested to comprise such Borrowing; (iv) the requested aggregate amount of such Borrowing; and (v) in the case of a Borrowing comprised of Eurodollar Rate Advances, the requested duration of the initial Interest Period for each such Advance. Each Lender shall, before 11:00 A.M. (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account, in same day funds, such Lender's Pro Rata Share of such Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the relevant Borrower by crediting such account as is specified to the Administrative Agent by that Borrower;provided, however, that, in the case of any Revolving Credit Borrowing, the Administrative Agent shall first make a portion of such funds equal to the aggregate principal amount of any Swing Line Advances and Letter of Credit Advances made by the Swing Line Bank or the Issuing Bank, as the case may be, and by any Lender and outstanding on the date of such Revolving Credit Borrowing,plus accrued and unpaid interest thereon to and as of such date, available to such Swing Line Bank or the Issuing Bank, as applicable, and such other Lenders for repayment of such Swing Line Advances and Letter of Credit Advances.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not later than 11:00 A.M. (New York time) on the date of the proposed Swing Line Borrowing, by the Company to the Swing Line Bank and the Administrative Agent. Each notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing") shall be by telephone, confirmed immediately in writing, or by telecopier, shall be duly executed by a Responsible Officer of the Company, and shall specify therein: (A) the requested date of such Borrowing (which shall be a Business Day); (B) the requested amount of such Borrowing; and (C) the requested maturity of such Borrowing (which maturity shall be no later than the seventh day after the requested date of such Borrowing). The Swing Line Bank will make the amount thereof available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account, in same day funds. After the Administrative Agent's r eceipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Company by crediting such account as is specified to the Administrative Agent by the Company.
(ii) Upon demand by the Swing Line Bank with a copy of such demand to the Administrative Agent (which shall give prompt notice thereof to each Lender), each Lender having a Revolving Credit Commitment shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign to each such Lender, such Lender's Pro Rata Share of such outstanding Swing Line Borrowing as of the date of such demand, by making available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account for the account of the Swing Line Bank, in same day funds, an amount equal to such Pro Rata Share. Promptly after receipt of such funds, the Administrative Agent shall transfer such funds to the Swing Line Bank at its Applicable Lending Office. Each Lender having a Revolving Credit Commitment hereby agrees to purchase its Pro Rata Share of an outstanding Swing Line Borrowing on (A) the Business Day on which demand therefor is made by the Swing L ine Bank so long as notice of such demand is given not later than 12:00 Noon (New York time) on such Business Day or (B) the first Business Day next succeeding such demand if notice of such demand is given after such time. Each Borrower hereby agrees to each such sale and assignment. Upon any such assignment by the Swing Line Bank to any Lender having a Revolving Credit Commitment of a portion of a Swing Line Borrowing, the Swing Line Bank represents and warrants to such Lender that the Swing Line Bank is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility with respect to such Swing Line Borrowing, the Loan Documents or any Loan Party. If and to the extent that any Lender having a Revolving Credit Commitment shall not have so made its Pro Rata Share of any applicable Swing Line Borrowing available to the Administrative Agent in accordance with the foregoing provisions of this Section 2.02(b)(ii), such L ender hereby agrees to pay to the Administrative Agent forthwith on demand the amount of its Pro Rata Share, together with interest thereon, for each day from the date of demand by the Swing Line Bank therefor until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative Agent the amount of its Pro Rata Share for the account of the Swing Line Bank on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by such Lender on such Business Day for all purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on such Business Day.
(iii) The Obligation of each Lender having a Revolving Credit Commitment to purchase its Pro Rata Share of each outstanding Swing Line Borrowing upon demand by the Swing Line Bank therefor pursuant to clause (ii) of this Section 2.02(b) shall be absolute, unconditional and irrevocable, and shall be made strictly in accordance with the terms of clause (ii) of this Section 2.02(b) under all circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto;
(B) the existence of any claim, set-off, defense or other right that such Lender may have at any time against the Swing Line Bank, any Borrower or any other Person, whether in connection with the transactions contemplated by the Loan Documents or any unrelated transaction;
(C) the occurrence and continuance of any Default or Event of Default; or
(D) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(c) Anything in subsection (a) of this Section 2.02 to the contrary notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances for the initial Borrowing hereunder and (ii) the Borrowers may not select Interest Periods for Eurodollar Rate Advances comprising part of any Borrowing that have a duration of more than one month during the period from the date hereof to 90 days after the Closing Date (or such earlier date as shall be specified in its sole discretion by the Administrative Agent (in consultation with the Lead Arranger) in a written notice to the Borrowers and the Lenders). In addition, (A) the Revolving Credit Advances may not be outstanding as part of more than 15 separate Borrowings and (B) no more than five separate Advances may be outstanding under either the Term A Facility or the Term B Facility at any one time.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be irrevocable and binding on the relevant Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the relevant Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's Pro Rata Share of such Borrowing, the Administrative Agent may assume that such Lender has made the amount of such Pro Rata Share available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) or (b) of this Section 2.02, as applicable, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made the amount of such Pro Rata Share available to the Administrative Agent, such Lender and the relevant Borrower severally agree to repay or to pay to the Administrative Agent forthwith on demand such corresponding amount, together with interest thereon, for each day from the date such amount is made available to the relevant Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of such Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender's Advance as part of such Borrowing for all purposes under this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
- Issuance of and Drawings and Reimbursement Under Letters of Credit
. (a)Request for Issuance. Except in respect of the Tender Offer L/C, in which case notice will be given not later than 12:00 noon (New York time) on the Business Day prior to the Closing Date, each Letter of Credit shall be issued upon notice, given not later than 11:00 A.M. (New York time) on the fifth Business Day prior to the date of the proposed issuance of such Letter of Credit (or such later day as the Issuing Bank in its sole discretion shall agree), by the Company to the Issuing Bank, which shall give to the Administrative Agent prompt notice thereof by telecopier. Each notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be in writing, or by telex or telecopier, shall be duly executed by a Responsible Officer of the Company, and shall specify therein: (i) the requested date of such issuance (which shall be a Business Day); (ii) the requested Available Amount of such Letter of Credit; (iii) the requested ex piration date of such Letter of Credit (which shall comply with the requirements of Section 2.01(d)); (iv) the name and address of the proposed beneficiary of such Letter of Credit; and (v) the proposed form of such Letter of Credit (which, in the case of the Tender Offer L/C, shall be substantially in the form set out in Exhibit M), and shall be accompanied by such application and agreement for letters of credit as the Issuing Bank may specify to the Company for use in connection with such requested Letter of Credit (a "Letter of Credit Agreement"). If the requested form of such Letter of Credit is acceptable to the Issuing Bank in its sole discretion, the Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article III, make such Letter of Credit available to the Company at its office referred to in Section 8.02 or as otherwise agreed with the Company in connection with the issuance of such Letter of Credit. If and to the extent that the provisio ns of any Letter of Credit Agreement shall conflict with this Agreement, the provisions of this Agreement shall govern.
(b)Letter of Credit Reports. The Issuing Bank shall furnish to the Administrative Agent and each Lender having a Revolving Credit Commitment on the first Business Day of each month a written report summarizing issuance and expiration dates and the Available Amount of Letters of Credit issued during the immediately preceding month and drawings during such month under each such Letters of Credit.
(c)Drawing and Reimbursement. (i) For all Letters of Credit, other than the Tender Offer L/C, the payment by the Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the making by the Issuing Bank of a Letter of Credit Advance, which shall be a Base Rate Advance, in the amount of such draft. Other than with respect to the Tender Offer L/C, upon demand by the Issuing Bank to each Lender having a Revolving Credit Commitment, with a copy of such demand to the Administrative Agent, each such Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to each such Lender, such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of the date of such purchase, by making available for the account of its Applicable Lending Office to the Administrative Agent for the account of the Issuing Bank, at the Administrative Agent's Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Letter of Credit Advance to be purchased by such Lender. Promptly after receipt thereof, the Administrative Agent shall transfer such funds to the Issuing Bank. The Company hereby agrees to each such sale and assignment. Each Lender having a Revolving Credit Commitment agrees to purchase its Pro Rata Share of an outstanding Letter of Credit Advance (other than an advance under the Tender Offer L/C) on (A) the Business Day on which demand therefor is made by the Issuing Bank so long as notice of such demand is given not later than 11:00 A.M. (New York time) on such Business Day or (B) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by the Issuing Bank to any other Lender having a Revolving Credit Commitment of a portion of such Letter of Credit Advance, the Issuing Bank represents and warrants to such other Lender that the Issuing Bank is the legal and beneficial owner of such interest being assigned by it, free and clear of any liens, but makes no other representation or warranty and assumes no responsibility with respect to such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the extent that any Lender having a Revolving Credit Commitment shall not have so made the amount of such Letter of Credit Advance available to the Administrative Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand such amount, together with interest thereon, for each day from the date of demand by the Issuing Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate, for its account or the account of the Issuing Bank, as applicable. If such Lender shall pay to the Administrative Agent such amount for the account of the Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute a Letter of Credit Advance made by such Lender on such Business Day for all purposes of this Agree ment, and the outstanding principal amount of the Letter of Credit Advance made by the Issuing Bank shall be reduced by such amount on such Business Day.
(ii) For all Letters of Credit, other than the Tender Offer L/C, the Obligation of each Lender having a Revolving Credit Commitment to purchase its Pro Rata Share of each outstanding Letter of Credit Advance upon demand by the Issuing Bank therefor pursuant to clause (i) of this Section 2.03(c) shall be absolute, unconditional and irrevocable, and shall be made strictly in accordance with the terms of clause (i) of this Section 2.03(c) under all circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (collectively, the "L/C Related Documents");
(B) the existence of any claim, set-off, defense or other right that such Lender may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Bank, any Borrower or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;
(C) the occurrence and continuance of any Default or Event of Default; or
(D) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
(iii) The payment by the Initial Issuing Bank of a drawing under the Tender Offer L/C shall be repaid upon such drawing in the amount thereof in same day funds by (i) release of amounts deposited in the L/C Cash Collateral Account pursuant to Section 2.14, (ii) the lenders or other providers of credit under the Bridge Facility making a direct reimbursement to the Initial Issuing Bank on account of the Company and (iii) the Company using proceeds received from the issuance and sale of the Debt Securities; in each case to the extent applicable, pursuant to documentation satisfactory to the Initial Issuing Bank (which shall require, among other things, that amounts be released to the Initial Issuing Bank immediately upon notice by the Initial Issuing Bank of a drawing under the Tender Offer L/C) and in an aggregate amount not in excess of the Available Amount of the Tender Offer L/C. The Tender Offer L/C will be deemed to be repaid in full for all purposes of this Agreement (which shall h ave the effect of, subject to the proviso below, increasing the amount of the Unused Revolving Credit Commitment by such amount which is deemed to be repaid) when (a) the aggregate of the sum of (i) the amount deposited in the L/C Cash Collateral Account pursuant to Section 2.14, (ii) the face amount of the backstop letter of credit, amount of cash collateral (or other credit support acceptable to the Administrative Agent and Initial Issuing Bank) or other cash proceeds of the Bridge Facility; in each case deposited in favor of, and available to be drawn immediately by, the Initial Issuing Bank upon a drawing under the Tender Offer L/C and (iii) an amount of proceeds received from the issuance and sale of the Debt Securities is held subject to the Collateral Pledge Agreement, is equal to the Available Amount of such Tender Offer L/C,provided that if at any time the proceeds specified in this clause (iii) are released to or for the account of the purchasers of the Debt Securities and the Tender Offer L/C shall not have by then otherwise expired according to its terms, the Tender Offer L/C shall then again be a Letter of Credit for all purposes of this Agreement until such time as it expires in accordance with its terms or is otherwise cash collateralized or supported by a backstop letter of credit or other credit arrangements, in each case in an amount sufficient to secure any claims thereunder and pursuant to documentation satisfactory to the Initial Issuing Bank or (b) it is returned for cancellation by the beneficiary thereof to the Initial Issuing Bank.
(d)Failure to Make Letter of Credit Advances. The failure of any Lender to make the Letter of Credit Advance to be made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its obligation hereunder to make its Letter of Credit Advance on such date, but no Lender shall be responsible for the failure of any other Lender to make the Letter of Credit Advance to be made by such other Lender on such date.
- Repayment of Advances
. (a)Term Advances. The Company shall repay to the Administrative Agent for the ratable account of the Lenders, by way of quarterly payments, the aggregate principal amount of the Term A Advances and Term B Advances outstanding on the following dates in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.06):
Date | Term A Facility | Term B Facility |
March 30, 2002
June 30, 2002
September 30, 2002
December 31, 2002 | $5,000,000
$5,000,000
$5,000,000
$5,000,000 | $1,062,500
$1,062,500
$1,062,500
$1,062,500 |
March 30, 2003
June 30, 2003
September 30, 2003
December 31, 2003 | $7,500,000
$7,500,000
$7,500,000
$7,500,000 | $1,062,500
$1,062,500
$1,062,500
$1,062,500 |
March 30, 2004
June 30, 2004
September 30, 2004
December 31, 2004 | $7,500,000
$7,500,000
$7,500,000
$7,500,000 | $1,062,500
$1,062,500
$1,062,500
$1,062,500 |
March 30, 2005
June 30, 2005
September 30, 2005
December 31, 2005 | $7,500,000
$7,500,000
$7,500,000
$7,500,000 | $1,062,500
$1,062,500
$1,062,500
$1,062,500 |
March 30, 2006
June 30, 2006
September 30, 2006
December 31, 2006 | $7,500,000
$7,500,000
$7,500,000
$7,500,000 | $1,062,500
$1,062,500
$1,062,500
$1,062,500 |
March 30, 2007
June 30, 2007
September 30, 2007
On the sixth (6th) anniversary of the Closing Date December 31, 2007 | $8,750,000
$8,750,000
$8,750,000
$8,750,000 - | $1,062,500
$1,062,500
$1,062,500
- - $1,062,500 |
March 30, 2008
June 30, 2008
September 30, 2008
On the seventh (7th) anniversary of the Closing Date | -
- -
- -
- - | $1,062,500
$1,062,500
$1,062,500
$396,312,500 |
provided, however, that the final principal repayment installment of the Term Advances shall be repaid on the applicable Termination Date (including the Conversion Date, if applicable) and in any event shall be in an amount equal to the aggregate principal amount of all applicable Term Advances outstanding on such date.
(b)Revolving Credit Advances. Each relevant Borrower that has outstanding Revolving Credit Advances shall repay to the Administrative Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount of all Revolving Credit Advances outstanding on such date.
(c)Swing Line Advances. Each relevant Borrower shall repay to the Administrative Agent for the account of the Swing Line Bank and each Lender that has made a Swing Line Advance on the earlier of (i) the maturity date for each Swing Line Advance (as specified in the applicable Notice of Swing Line Borrowing (which maturity shall be no later than the seventh day after the date on which such Swing Line Borrowing was initially made by the Swing Line Bank)) and (ii) the Termination Date the principal amount of each such Swing Line Advance made by the Swing Line Bank and each such Lender and outstanding on such date.
(d)Letter of Credit Advances. (i) Each relevant Borrower shall repay to the Administrative Agent for the account of the Issuing Bank and each Lender that has made a Letter of Credit Advance on the earlier of (A) the date of demand therefor (provided such demand is given by the Administrative Agent to the Company prior to 11:00 A.M. (New York time) on such date, and if not given by such time, such payment shall be made on the next succeeding Business Day thereafter) and (B) the Termination Date the principal amount of each such Letter of Credit Advance made by the Issuing Bank and each such Lender and outstanding on such date.
(ii) The Obligations of each Borrower under this Agreement, any Letter of Credit Agreement and any L/C Related Document shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement or such other agreement or instrument under all circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any L/C Related Document;
(B) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of any Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that any Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the Issuing Bank or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;
(D) any 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;
(E) payment by the Issuing Bank under a Letter of Credit against presentation of a draft, certificate or other document that does not strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or nonperfection of any Collateral or other collateral, or any release or amendment or waiver of or consent to departure from the Guaranties or any other guarantee, for all or any of the Obligations of any Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any guarantor.
- Termination or Reduction of the Commitments
. (a)Optional. The Company may, upon at least five Business Days' notice to the Administrative Agent, terminate the Term Commitment, the Letter of Credit Facility or the Unused Revolving Credit Commitments;provided, however, that each partial reduction of a Facility shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof or, if less, the aggregate amount of such Facility. Each reduction of the Term Commitment pursuant to this subsection (a) shall be applied to the principal repayment installments thereof on a pro rata basis.
(b)Mandatory. (i) The Term Facilities shall be automatically and permanently reduced on the date of the Term Borrowing (after giving effect to the Term Borrowing), and from time to time thereafter upon each repayment or prepayment of the outstanding Term Advances, by an amount equal to the amount by which (A) the Term Facilities immediately prior to such reduction exceeds (B) the aggregate principal amount of all Term Advances outstanding at such time.
(ii) The Revolving Credit Facility shall be automatically and permanently reduced on each date on which the prepayment of Revolving Credit Advances outstanding thereunder is required to be made pursuant to Section 2.06(b)(i) or 2.06(b)(ii) by an amount equal to the applicable Reduction Amount.
(iii) The Letter of Credit Facility shall be automatically and permanently reduced on the date of each reduction in the Revolving Credit Facility by an amount equal to the amount, if any, by which (A) the Letter of Credit Facility on such date exceeds (B) the Revolving Credit Facility on such date, after giving effect to such reduction of the Revolving Credit Facility.
(c)Application of Commitment Reductions. Upon each reduction of a Facility pursuant to this Section 2.05, the Commitment of each Lender under such Facility shall be reduced by such Lender's Pro Rata Share of the amount by which such Facility is reduced.
- Prepayments
. (a)Optional. Any Borrower may, upon at least one Business Day's notice in the case of Base Rate Advances and three Business Days' notice in the case of Eurodollar Rate Advances, in each case to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given, the relevant Borrower shall, prepay the aggregate principal amount of the Advances comprising part of the same Borrowing and outstanding on such date, in whole or ratably in part;provided, however, that (i) each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii) no such prepayment of a Eurodollar Rate Advance shall be made other than on the last day of an Interest Period therefor,provided that if any such prepayment of a Eurodollar Rate Advance is made on a date other than the last day of an Interest Period therefor, the relevant Borrower s hall also pay any amounts owing in respect of such Eurodollar Rate Advance pursuant to Section 8.04(c). Each prepayment of the outstanding Term Advances pursuant to this subsection (a) shall be applied ratably to the principal repayment installments thereof.
(b)Mandatory. (i) If the Total Leverage Ratio is equal to or greater than 3.25:1.0, the Company shall, on the earlier of (A) the Business Day following the date on which Holdings delivers to the Administrative Agent and the Lender Parties the Required Financial Information and (B) 90 days after the end of each Fiscal Year, commencing with such audited Consolidated financial statements for the Fiscal Year ending December 31, 2002 prepay an aggregate principal amount of the Advances comprising part of the same Borrowings equal to 50% of the amount of Excess Cash Flow for such Fiscal Year. Each prepayment of Advances pursuant to this clause (i) shall be applied,first, to the Term Facilities and to the principal repayment installments thereof on a pro rata basis andthereafter, to the Revolving Credit Facility in the manner set forth in clause (vi) of this Section 2.06(b).
(ii) The Company shall, within five (5) Business Days after the date of receipt of the Net Cash Proceeds by Holdings or any of its Subsidiaries from (A) the sale, lease, transfer or other disposition of any property or assets ("Asset Dispositions") of Holdings or any of its Subsidiaries (other than (1) Asset Dispositions made pursuant to Section 5.02(e)(i), (ii), (vi) or (viii) or (2) Net Cash Proceeds which are reinvested within 180 days after receipt in assets used or useful in the business of Holdings and its Subsidiaries (including, for the avoidance of doubt, all Equity Interests in, or the property and assets comprising a division or business unit or all or a substantial part of the business of, any Person), or in respect of any reinvestment for which an expenditure of less than $5,000,000 is made, a binding contract in respect of application of such proceeds is entered into within such six month period and the application thereof is made reasonably s oon thereafter); (B) the incurrence or issuance by Holdings or any of its Subsidiaries of any Debt (other than Debt expressly permitted to be incurred or issued pursuant to (1) Section 5.02(b)(i) or (ii), or Section 5.02(b)(iii)(A), (D), (E), (F), (G), (H) and (I), and (2) Section 5.02(b)(iii)(J) to the extent such Net Cash Proceeds are expended within 180 days after receipt for the purchase or other acquisition of property and assets during such period (to the extent otherwise permitted to be expended under this Agreement); (C) the issuance or sale by Holdings or any of its Subsidiaries of any Equity Interests therein (other than Equity Interests permitted to be issued and sold under the Loan Documents and which are used for purposes permitted under the Loan Documents and are so applied to such permitted purposes within any permitted period specified in the Loan Documents) and (D) any Extraordinary Receipt received by or paid to or for the account of Holdings or any of its Subsidiaries a nd not otherwise included in subclause (ii)(A), (ii)(B) or (ii)(C) of this Section 2.06(b), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings equal to 100% of the amount of such Net Cash Proceeds included in subclauses (ii)(A), (ii)(B) and (ii)(D) of this Section 2.06(b) and 50% of the amount of such Net Cash Proceeds included in subclause (ii)(C) of this Section 2.06(b) which are not reinvested within 180 days after receipt in assets used or useful in the business of Holdings and its Subsidiaries (including, for the avoidance of doubt, all Equity Interests in, or the property and assets comprising a division or business unit or all or a substantial part of the business of, any Person). Each prepayment of Advances pursuant to this clause (ii) shall be applied,first, to the Term Facilities and to the principal repayment installments thereof on a pro rata basis, andthereafter, to the Revolving Credit Facility in the manner set forth in clause (v) of t his Section 2.06(b).
(iii) The Company shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances and, if applicable, deposit an amount into the L/C Cash Collateral Account equal to the amount by which (A) the sum of (1) the aggregate principal amount of all Revolving Credit Advances, Letter of Credit Advances and Swing Line Advances outstanding on such Business Day and (2) the aggregate Available Amount of all Letters of Credit outstanding on such Business Day exceeds (B) the Revolving Credit Facility on such Business Day (after giving effect to any permanent reduction thereof pursuant to Section 2.05 on such Business Day).
(iv) The Company shall, on each Business Day, pay to the Administrative Agent for deposit into the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account on such Business Day to equal the amount by which (A) the aggregate Available Amount of all Letters of Credit outstanding on such Business Day exceeds (B) the Letter of Credit Facility on such Business Day (after giving effect to any permanent reduction thereof pursuant to Section 2.05 on such Business Day).
(v) The Company shall pay to the Administrative Agent, on the first day of each Clean-Down Period, an amount equal to the amount by which the aggregate principal amount of the Revolving Credit Advances, the Letter of Credit Advances and the Swing Line Advancesplus the aggregate Available Amount of outstanding Letters of Credit exceeds $200,000,000.
(vi) Prepayments of the Revolving Credit Facility made pursuant to clause (i), (ii), (iii), (iv) or (v) of this Section 2.06(b),first, shall be applied to prepay Letter of Credit Advances outstanding at such time until all such Letter of Credit Advances are paid in full,second, shall be applied to prepay Swing Line Advances outstanding at such time until all such Swing Line Advances are paid in full,third, shall be applied to prepay Revolving Credit Advances comprising part of the same Borrowings and outstanding at such time until all such Revolving Credit Advances are paid in full, andfourth, shall be deposited into the L/C Cash Collateral Account to cash collateralize 100% of the Available Amount of all Letters of Credit outstanding at such time; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) or (ii) of this Section 2.06(b), the amount remaining, if any, after the prepayment in full of all Advances outst anding at such time and the 100% cash collateralization of the aggregate Available Amount of all Letters of Credit outstanding at such time (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the "Reduction Amount") may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced as set forth in Section 2.05(b)(ii). Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied (without any further action by or notice to or from any Borrower or any other Loan Party) to reimburse the Issuing Bank or the Lenders, as applicable.
(vii) Anything contained in this Agreement to the contrary notwithstanding, (A) if, following the occurrence of any sale, lease, transfer or other disposition of assets or property by any Loan Party or any of its Subsidiaries, Holdings is required pursuant to any other contract, agreement or instrument to commit by a particular date (a "Commitment Date") to apply or cause its Subsidiaries to apply an amount equal to any of the proceeds thereof in a particular manner, or to apply by a particular date (an "Application Date") an amount equal to any such proceeds in a particular manner, in either case in order to excuse Holdings from being required to make an offer to redeem or repay any Debt or purchase any securities in connection with such sale, lease, transfer or other disposition, and Holdings shall have failed to so commit or to so apply an amount equal to such proceeds at least 60 days before the applicable Commitment Date or Application Date, as the case may be, or (B) if Holdings at any other time shall have failed to apply or commit or cause to be applied an amount equal to any such proceeds, and, within 60 days thereafter, assuming no further application or commitment of an amount equal to such proceeds, Holding would otherwise be required to make an offer to redeem or repay any Debt or purchase any securities in respect thereof, then in either such case the Company shall immediately pay or cause to be paid to the Administrative Agent an amount equal to such proceeds to be applied to the payment of Advances in the manner set forth in Section 2.06(b)(ii) in such amounts as shall excuse Holdings from making any such offer to redeem or repay such Debt or purchase such securities.
(viii) Notwithstanding any of the other provisions of clause (ii) of this Section 2.06(b), so long as no Default under Section 6.01(a) or 6.01(f) or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment of Advances would otherwise be required to be made pursuant to clause (i) or (ii) of this Section 2.06(b), the aggregate amount of Net Cash Proceeds required by such clauses to be applied to prepay Advances on such date is less than or equal to $5,000,000, the Borrowers may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under this Section 2.06(b) to be applied to prepay Advances exceeds $5,000,000. During such deferral period each Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Advances and may, subject to the fulfillment of the applicable conditions set forth in Article III, reborrow such amounts (which amounts, to the ex tent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.06(b). Upon the occurrence of a Default under Section 6.01(a) or 6.01(f) or an Event of Default, each Borrower shall immediately prepay the Advances comprising part of the same Borrowings in the amount of all Net Cash Proceeds received by that Borrower and other amounts, as applicable, that are required to be applied to prepay Advances under this Section 2.06 (without giving effect to the first and second sentences of this clause (vii)) but which have not previously been so applied.
(ix) The Company shall, within 30 days after the earlier of the date, if any, that (A) the Put and Call Option Agreement has terminated in accordance with Section 10 thereof (and the Asset Transfer shall not have been completed by such date) and (B) any redemption under the Debt Securities resulting from the failure of the Asset Transfer to occur by a specified date has occurred, permanently prepay $400,000,000 of the Term Facilities, which amount shall be applied to the Term Facilities and to the repayment of the principal installments thereof on apro rata basis.
(c)Prepayments to Include Accrued Interest, Etc. All prepayments under this Section 2.06 shall be made together with (i) accrued and unpaid interest to the date of such prepayment on the principal amount so prepaid and (ii) in the case of any such prepayment of a Eurodollar Rate Advance on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurodollar Rate Advance pursuant to Section 8.04(c). If any payment of Eurodollar Rate Advances otherwise required to be made under Section 2.06(b) would be made on a day other than the last day of the applicable Interest Period therefor, the Company may (if it has delivered the notice specified in the next sentence below) direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in the Collateral Account until the last day of the applicable Interest Period at which time the Administrative Agent shall apply the amount of such pay ment to the prepayment of such Advances;provided, however, that such Advances shall continue to bear interest as set forth in Section 2.07 until the last day of the applicable Interest Period therefor). In the case of any prepayment of a Eurodollar Rate Advance under this Section 2.06 on a date other than the last day of an Interest Period therefor for which the Company will be directing the Administrative Agent to deposit such prepayment in the Collateral Account, the Company shall irrevocably specify such instructions in a notice to the Administrative Agent, given not later than 10:00 A.M. (New York time) on the Business Day prior to such prepayment (and the Administrative Agent will give prompt notice thereof to each Lender).
- Interest
. (a)Scheduled Interest. Each Borrower that has outstanding Advances shall pay interest on the unpaid principal amount of each Advance owing to each Lender Party from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:
(i)Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (A) the Base Rate in effect from time to time and (B) the Applicable Margin for such Advance in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.
(ii)Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Advance for such Interest Period and (B) the Applicable Margin for such Advance in effect on the first day of such Interest Period, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.
(b)Default Interest. Upon the occurrence and during the continuance of a Default under Section 6.01(a) or 6.01(f), or upon the occurrence and during the continuance of an Event of Default, the Borrowers shall be required to pay interest ("Default Interest") on (i) the unpaid principal amount of each Advance owing to each Lender Party, payable in arrears on the dates referred to in clause (i) or (ii) of Section 2.07(a), as applicable, and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (i) or (ii) of Section 2.07(a), as applicable, and (ii) to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender Party that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid, in the case of interest, on the Type of Advance on which such interest has accrued pursuant to clause (i) or (ii) of Section 2.07(a), as applicable, and, in all other cases, on Base Rate Advances pursuant to clause (i) of Section 2.07(a).
(c)Notice of Interest Rate. Promptly after receipt of a Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give notice to the relevant Borrower and each Lender of the applicable interest rate determined by the Administrative Agent for purposes of clause (i) or (ii) of Section 2.07(a), as applicable.
- Fees
. (a)Commitment Fee. The Company shall pay to the Administrative Agent for the account of the Lenders having a Revolving Credit Commitment a commitment fee (the "Commitment Fee"), from the Closing Date in the case of each Initial Lender and from the effective date specified in the Assignment and Acceptance pursuant to which it became a Lender in the case of each other such Lender until, in each case, the Termination Date, payable in arrears quarterly on the last Business Day of each March, June, September and December, and on the Termination Date, at the rate per annum equal to the Applicable Percentage Fee in effect from time to time on the average daily unused portion of the average daily Unused Revolving Credit Commitment of each such Lender;provided, however, that any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at suc h time shall not be payable by the Company so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Company prior to such time,plus (ii) such Lender's Pro Rata Share of the average daily outstanding Swing Line Advances during such quarter;provided, however, that no Commitment Fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b)Letter of Credit Fees, Etc. (i) The Company shall pay to the (A) Administrative Agent for the account of each Lender having a Revolving Credit Commitment a commission, payable in arrears quarterly on the last Business Day of each March, June, September and December, and on the earliest to occur of the full drawing, expiration, termination or cancellation of any Letter of Credit and on the Termination Date, on such Lender's Pro Rata Share of the average daily aggregate Available Amount of Letters of Credit (other than the Tender Offer L/C) and (B) Initial Issuing Bank, for its account, a commission, payable in arrears quarterly on the last Business Day of each March, June, September and December, and on the earliest to occur of the full drawing, expiration, termination, cancellation, repayment or deemed repayment (subject to the proviso in Section 2.03(c)(iii)) of the Tender Offer L/C, on the Available Amount of such Letter of Credit; in each case outstanding from time to time during such quarter at the rate per annum equal to the Applicable Margin for Eurodollar Rate Advances (as determined in accordance with clause (b) of the definition of "Applicable Margin") in effect from time to time. Upon the occurrence and during the continuance of a Default under Section 6.01(a) or 6.01(f) or an Event of Default, the amount of commission payable by the Company under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Company shall pay to the Issuing Bank, for its own account, an issuance fee for each Letter of Credit requested by it in an amount equal to 0.25% of the Available Amount of such Letter of Credit on the date of issuance of such Letter of Credit, payable on such date, and such other customary commissions, fronting fees, transfer fees and other fees and charges in connection with the issuance or administration of each Letter of Credit as the Company and the Issuing Bank shall agree.
(c)Agents' Fees. The Company shall pay to the Administrative Agent for the account of the Agents such fees as may from time to time be agreed between the Company and the Administrative Agent.
- Conversion of Advances
. (a)Optional. Any Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York time) time on the third Business Day prior to the date of the proposed Conversion in the case of a Conversion of Base Rate Advances into Eurodollar Rate Advances, or 11:00 A.M. (New York time) on the Business Day immediately preceding the date of the proposed Conversion in the case of a Conversion of Eurodollar Rate Advances into Base Rate Advances, and subject to the provisions of Sections 2.07 and 2.10, Convert all or any portion of the Advances drawn by that Borrower of one Type comprising the same Borrowing into Advances of the other Type;provided, however, that:
(i) any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate Advances;
(ii) any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be made only if no Default shall have occurred and be continuing;
(iii) no Conversion of any Advances shall result in more separate Borrowings than permitted under Section 2.02(c); and
(iv) each Conversion of Advances comprising part of the same Borrowing under any Facility shall be made among the Lenders in accordance with their respective Pro Rata Shares of such Borrowing.
Each notice of a Conversion (a "Notice of Conversion") shall be delivered by telephone, confirmed immediately in writing, or by telecopier, in substantially the form of Exhibit B-2 hereto, shall be duly executed by a Responsible Officer of the relevant Borrower, and shall, within the restrictions set forth in the immediately preceding sentence, specify therein:
(A) the requested date of such Conversion (which shall be a Business Day);
(B) the Advances requested to be Converted; and
(C) if such Conversion is into Eurodollar Rate Advances, the requested duration of the Interest Period for such Eurodollar Rate Advances.
The Administrative Agent shall give each of the Lenders prompt notice of each Notice of Conversion received by it, by telecopier. Each Notice of Conversion shall be irrevocable and binding on the relevant Borrower.
(b)Mandatory. (i) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" set forth in Section 1.01, the Administrative Agent will forthwith so notify that Borrower and the Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Default, (A) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (B) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
- Increased Costs, Etc
. (a) If, after the date hereof, the adoption of any applicable Requirement of Law, or any change in any applicable Requirement of 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 Applicable Lending Office) with any request or directive (whether or not having the force of law, but if not having the force of law, being a request or directive with which such Lender or its Applicable Lending Office is accustomed to comply) of any such Governmental Authority, central bank or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to any tax, duty, or other charge with respect to any Eurodollar Rate Advances, any Note evidencing any Eurodollar Rate Advances, or its obligation to make any Eurodollar Rate Advances, or change the basis of taxation of any amounts payable to such Lender (or its Applicable Lending Office) under this Agreement or its Note in respect of any Eurodollar Rate Advances (other than, for purposes of this Section 2.10, any such increased costs resulting from (A) Taxes or Other Taxes (as to which Section 2.12 shall govern), and (B) changes in the basis of taxation of overall net income or overall gross income by the United States of America or the jurisdiction under the laws of which such Lender Party is organized or has its principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special deposit, assessment, or similar requirement (including, without limitation, any change by way of the imposition of or increase in reserve requirements included in the Eurodollar Rate Reserve Percentage, commencing at the time of such change) relating to any extensions of credit or other assets of, or any deposits with or other liabilities or commitments of, such Lender (or its Applicable Lending Office), including the Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office) or on the United States market for certificates of deposit or the London interbank market any other condition affecting this Agreement or its Note or any of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender (or its Applicable Lending Office) of making, Converting into or maintaining any Eurodollar Rate Advances or to reduce any sum received or receivable by such Lender (or its Applicable Lending Office) under this Agreement or its Note with respect to any Eurodollar Rate Advances, then the Company shall pay to such Lender on demand such amount or amounts as will compensate such Lender for such increased cost or reduction. Each Lender shall promptly notify the Company and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 2.10(a) and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming compensation un der this Section 2.10(a) shall furnish to the Company and the Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder, with calculations in reasonable detail, which shall be conclusive and binding, absent manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods.
(b) If, after the date hereof, any Lender shall have determined that the adoption of any applicable Requirement of Law regarding capital adequacy or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law, but if not having the force of law, being a request or directive with which such Lender (or its Applicable Lending Office) is accustomed to comply) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender's obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change, request or directive (taking into considera tion its policies with respect to capital adequacy), then from time to time upon demand the Company shall pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction. Each Lender shall promptly notify the Company and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 2.10(b) and will designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming compensation under this Section 2.10(b) shall furnish to the Company and the Administrative Agent a statement setting forth the additional amount or amounts to be paid to it hereunder, with calculations in reasonable detail, which shall be conclusive and binding, absent manifest error. In determining such amount, such Lend er may use any reasonable averaging and attribution methods.
(c) If, on or prior to the first day of any Interest Period for any Eurodollar Rate Advance, the Required Lenders at any time notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately and fairly reflect the cost to such Lenders of funding their Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall promptly so notify the Company and the Lenders, whereupon (i) each such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company (promptly following notice from the Lenders) that such Lenders have determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, in the event that it becomes unlawful after the date hereof for any Lender or its Applicable Lending Office to make, maintain, or fund Eurodollar Rate Advances hereunder, then such Lender shall promptly notify the Company thereof and such Lender's obligation to make Eurodollar Rate Advances and to Convert Base Rate Advances into Eurodollar Rate Advances shall be suspended until such time as such Lender may again make, maintain and fund Eurodollar Rate Advances (in which case the provisions of Section 2.10(e) shall be applicable);provided, however, that, before making any such demand, such Lender agrees to consider (consistent with its internal policy, legal and regulatory restrictions and other considerations) designating a different Eurodollar Lending Office if the making of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make Eurodollar Rate A dvances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the sole discretion of such Lender, be otherwise disadvantageous to such Lender in any respect.
(e) If the obligation of any Lender to make a Eurodollar Rate Advance or to Convert Base Rate Advances into Eurodollar Rate Advances shall be suspended pursuant to any other provision of this Section 2.10, such Lender's suspended Eurodollar Rate Advances shall be automatically Converted into Base Rate Advances on the last day(s) of the then current Interest Period(s) therefor (or, in the case of a Conversion required by Section 2.10(d), on such earlier date as such Lender may specify to the Company with a copy to the Administrative Agent) and, unless and until such Lender gives notice as provided below that the circumstances specified in such other provision of this Section 2.10 that gave rise to such Conversion no longer exist:
(i) to the extent that such Lender's suspended Eurodollar Rate Advances have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender's suspended Eurodollar Rate Advances shall be applied instead to its Base Rate Advances; and
(ii) all Eurodollar Rate Advances that would otherwise be made or Converted by such Lender shall be made instead as (or shall remain as) Base Rate Advances.
If such Lender gives notice to the Company (with a copy to the Administrative Agent) that the circumstances otherwise specified in this Section 2.10 that gave rise to the suspension of the making of Eurodollar Rate Advances by such Lender no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Rate Advances by other Lenders are outstanding, such Lender's Base Rate Advances shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) therefor, to the extent necessary into Eurodollar Rate Advances.
- Payments and Computations
. (a) The Borrowers shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim, deduction or set-off (except as otherwise provided in Section 2.15), not later than 11:00 A.M. (New York time) on the day when due in U.S. dollars to the Administrative Agent at the Administrative Agent's Account in immediately available funds, with payments received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the relevant Borrower is in respect of principal, interest, commitment fees or any other Obligation then payable hereunder and under the Notes to more than one Lender Party, to such Lender Parties for the accounts of their respective Applicable Lending Offices in accordance with their respective Pro Rata Shares of the amounts of such respective Obligations payable to su ch Lender Parties at such time and (ii) if such payment by the relevant Borrower is in respect of any Obligation then payable hereunder solely to one Lender Party, to such Lender Party for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(d), from and after the effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender Party assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender Party, if and to the extent payment owed to such Lender Party is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time against any or all of such Borrower's accounts with such Lender Party any amount so due (it being understood that, with respect to payment of costs and expenses as specified in this Agreement, the Company will be afforded a commercially reasonable period of time to pay such amounts).
(c) All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or Federal Funds Rate and fees and Letter of Credit commissions shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or Commitment Fees or Letter of Credit commissions or fees, as the case may be;provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from any Borrower prior to the date on which any payment is due to any Lender Party hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender Party on such due date an amount equal to the amount due such Lender Party on such date. If and to the extent any Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender Party shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender Party, together with interest thereon, for each day from the date such amount is distributed to such Lender Party until the date such Lender Party repays such amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Agents and the Lender Parties under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Agents and the Lender Parties in the following order of priority:
(i)first, to the payment of all of the fees, indemnification payments, costs and expenses (including, without limitation, reasonable fees and expenses of counsel) that are due and payable to the Agents (solely in their respective capacities as Agents) under or in respect of this Agreement and the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such fees, indemnification payments, costs and expenses owing to the Agents on such date;
(ii)second, to the payment of all of the fees, indemnification payments, costs and expenses that are due and payable to the Issuing Bank and the Swing Line Bank (solely in their respective capacities as such) under or in respect of this Agreement and the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such fees, indemnification payments, costs and expenses owing to the Issuing Bank and the Swing Line Bank on such date;
(iii)third, to the payment of all of the indemnification payments, costs and expenses that are due and payable to the Lenders under Section 8.04 hereof and any similar section of any of the other Loan Documents on such date, ratably based upon the respective aggregate amounts of all such indemnification payments, costs and expenses owing to the Lenders on such date;
(iv)fourth, to the payment of all of the amounts that are due and payable to the Administrative Agent and the Lender Parties under Sections 2.10 and 2.12 hereof and Section 5 of the Guaranties on such date, ratably based upon the respective aggregate amounts thereof owing to the Administrative Agent and the Lender Parties on such date;
(v)fifth, to the payment of all of the fees that are due and payable to the Lenders under Section 2.08(a) on such date, ratably based upon the respective aggregate Commitments of the Lenders under the Facilities on such date;
(vi)sixth, to the payment of all of the accrued and unpaid interest on the Obligations of each Borrower under or in respect of the Loan Documents that is due and payable to the Administrative Agent and the Lender Parties under Section 2.07(b) on such date, ratably based upon the respective aggregate amounts of all such interest owing to the Administrative Agent and the Lender Parties on such date;
(vii)seventh, to the payment of all of the accrued and unpaid interest on the Advances that is due and payable to the Administrative Agent and the Lender Parties under Section 2.07(a) on such date, ratably based upon the respective aggregate amounts of all such interest owing to the Administrative Agent and the Lender Parties on such date;
(viii)eighth, to the payment of the principal amount of all of the outstanding Advances that is due and payable to the Administrative Agent and the Lender Parties on such date, ratably based upon the respective aggregate amounts of all such principal owing to the Administrative Agent and the Lender Parties on such date; and
(ix)ninth, to the payment of all other Obligations of the Loan Parties owing under or in respect of the Loan Documents that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date.
- Taxes
. (a) Except as required by law and subject to sub-section (e) and (f), any and all payments by the Borrowers to or for the account of any Lender Party or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed by the United States or any political subdivision thereof or any other jurisdiction from which a payment under this Agreement is made or in which the Borrower making the payment (or on whose behalf the payment is made) is located or organized,excluding, in the case of each Lender Party and each Agent, taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such Lender Party or such Agent, as the case may be, is organized or any political subdivision thereof, and, in the case of each Lender Party, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of either of its Applicable Lending Offices or any political subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under the Notes being, collectively, "Taxes"). If any Borrower shall be required under applicable Requirements of Law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender Party or any Agent, (i) the sum payable by that Borrower shall be increased as necessary so that after such Borrower and the Administrative Agent have made all required deductions (including deductions applicable to additional s ums payable under this Section 2.12) such Lender Party or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall pay the full amount deducted to the relevant taxation authority or other Governmental Authority in accordance with applicable Requirements of Law and (iv) within 30 days after the date of any payment of Taxes, that Borrower shall furnish to the Administrative Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt evidencing payment thereof, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.
(b) In addition, each Borrower agrees to pay any present or future stamp or documentary taxes and any other excise, property or similar taxes, charges or levies that arise from any payment made hereunder or under any other Loan Document or from the execution, delivery of, or otherwise with respect to, this Agreement or any other Loan Document (collectively, "Other Taxes").
(c) Subject to sub-section (e) and (f), each Borrower agrees to indemnify each Lender Party and each Agent for the full amount of Taxes and Other Taxes, and for the full amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12, imposed on or paid by such Lender Party or such Agent, as the case may be, or that the Lender Parties are required to pay as a result of interest in respect of an Advance being assessable income of any Lender Party for Australian taxation law purposes on the grounds that the interest has been deemed for the purposes of the Australia Income Tax Assessment Act 1936 (or any provision of such Act as rewritten or re-enacted) as having been derived from a source in Australia, and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. Amounts payable by any Borrower under the indemnity set forth in this subsection (c) shall be paid within 30 days from the date on which the applicable Lender or Agent, as the case may be, makes written demand therefor.
(d) In the case of any payment hereunder or under any other Loan Document by or on behalf of any Borrower through an account or branch outside the United States, or on behalf of any Borrower by a payor that is not a United States person, if that Borrower determines that no Taxes are payable in respect thereof, such Borrower shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at its address referred to in Section 8.02, an opinion of counsel or a certificate from a Responsible Officer of Holdings reasonably acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of this subsection (d) and subsection (e) of this Section 2.12, the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender, the Swing Line Bank or the Initial Issuing Bank, as the case may be, and on or prior to the date of the Assignment and Acceptance pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time thereafter as reasonably requested in writing by Holdings (but only so long thereafter as such Lender Party remains lawfully able to do so), provide each of the Administrative Agent and Holdings with a copy (and at the request of the Administrative Agent and Holdings, two originals) of Internal Revenue Service forms W-8BEN or W-8ECI (and, in the case of a Lender Party that has certified in writing to the Administrative Agent that it is not a "bank" (as defined in Section 881(c)(3)(A) of the Internal Revenue Code), a certificate representing that such Lender Party is not (i) a "bank" for purposes of Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any of the Borrowers or (iii) a controlled foreign corporation related to any of the Borrowers (within the meaning of Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender Party is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case of a Lender Party that has certified to the Administrative Agent that it is not a bank, certifying that such Lender Party is not a United States person. If the forms provided by a Lender Party at the time such Lender Party first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zer o, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender Party provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms;provided, however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender Party becomes a party to this Agreement, the Lender Party assignor was entitled to payments under subsection (a) of this Section 2.12 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has failed to provide Holdings with the appropriate form, certificate or other document described in subsection (e) of this Section 2.12 (other than if such failure is due to a change in the applicable Requirements of Law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided) such Lender Party shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.12 with respect to Taxes imposed by the United States by reason of such failure;provided, however, that should a Lender Party become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, each Borrower shall take such steps as such Lender Party shall reasonably request to assist such Lender Party in recovering such Taxes.
(g) Each of the Lender Parties hereby agrees that, upon the occurrence of any circumstances entitling such Lender Party to additional amounts pursuant to this Section 2.12, such Lender Party shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender Party, be otherwise disadvantageous to such Lender Party. In addition, each Lender Party agrees to furnish to Holdings, at Holdings' expense and request, such additional forms duly executed as it may be legally entitled to furnish as may be necessary in order to claim any reduction of or exemption from any Taxes or Other Taxes, which reduction or exemption may be available to such Lender Party, unless in the reasonable judgment of such Lender Party, the furnishing of such form would be disadvantageous to such Lender Party in any respect.
- Sharing of Payments, Etc
. If any Lender Party shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) (a) on account of Obligations due and payable to such Lender Party under or in respect of this Agreement or any of the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender Party at such time (other than pursuant to Section 2.10, 2.12, 8.04 or 8.07) to (ii) the aggregate amount of the Obligations due and payable to all Lender Parties at such time) of payments on account of the Obligations due and payable to all Lender Parties under or in respect of this Agreement and the other Loan Documents at such time obtained by all the Lender Parties at such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party under or in respect of this Agreement or any of the other Loan Docu ments at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing to such Lender Party at such time (other than pursuant to Section 2.10, 2.12, 8.04 or 8.07) to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lender Parties under or in respect of this Agreement and the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lender Parties under or in respect of this Agreement and the other Loan Documents at such time obtained by all of the Lender Parties at such time, such Lender Party shall forthwith purchase from the other Lender Parties such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender Party to share the excess payment ratably with each of them;provided, however, that if all or any portion of such excess payment i s thereafter recovered from such purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such other Lender Party shall repay to the purchasing Lender Party the purchase price to the extent of such Lender Party's ratable share (according to the proportion of (A) the purchase price paid to such Lender Party to (B) the aggregate purchase price paid to all Lender Parties) of such recovery, together with an amount equal to such Lender Party's ratable share (according to the proportion of (1) the amount of such other Lender Party's required repayment to (2) the total amount so recovered from the purchasing Lender Party) of any interest or other amount paid or payable by the purchasing Lender Party in respect of the total amount so recovered. Each Borrower hereby agrees that any Lender Party so purchasing an interest or participating interest from another Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted under applicable law, exercise all its rights of payment (including the right of setoff) with respect to such an interest or participating interest, as the case may be, as fully as if such Lender Party were the direct creditor of that Borrower in the amount of such an interest or participating interest.
- Use of Proceeds
. The proceeds of the Advances and issuance of the Tender Offer L/C shall be available solely to fund the Asset Transfer (through the issuing of the Tender Offer L/C and the funding the Parent Loan), to refinance certain Debt of Holdings and its Subsidiaries outstanding on the date of the Initial Extension of Credit, to pay fees and expenses incurred in connection with the consummation of the Transaction and, in the case of the Revolving Facility, for working capital and general corporate purposes of Holdings and its Subsidiaries. All proceeds of the Term Advances not used to fund the Parent Loan, refinance certain Debt of Holdings and its Subsidiaries or to pay fees and expenses on the Closing Date incurred in connection with the consummation of the Transaction will be deposited directly in the L/C Cash Collateral Account for release (i) to the Initial Issuing Bank upon, and in reimbursement of, the drawing under the Tender Offer L/C or (ii) in the case where the Tender Offer L/C is otherwise fully cash collateralized or back-stopped by a letter of credit or other credit support acceptable to the Initial Issuing Bank, as otherwise agreed by the Administrative Agent and Initial Issuing Bank for working capital and general corporate purposes of Holdings and its Subsidiaries.
- Defaulting Lenders
. (a) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to any Borrower and (iii) such Borrower shall be required to make any payment hereunder or under any other Loan Document to or for the account of such Defaulting Lender, then that Borrower may, so long as no Default shall occur or be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the Obligation of that Borrower to make such payment to or for the account of such Defaulting Lender against the obligation of such Defaulting Lender to make such Defaulted Advance. In the event that, on any date, such Borrower shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Lender to make any such Defaulted Advance on or prior to such date, the amount so set off and otherwise applied by that Borrower shall constitu te for all purposes of this Agreement and the other Loan Documents (to the extent of any such setoff) the payment required by such Borrower and an Advance by such Defaulting Lender made on the date of such setoff under the Facility pursuant to which such Defaulted Advance was originally required to have been made pursuant to Section 2.01. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01, even if the other Advances comprising such Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed to be made pursuant to this subsection (a). Each Borrower shall notify the Administrative Agent at any time it exercises its right of set-off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Lender and the Defaulted Advance require d to be made by such Defaulting Lender and (B) the amount set off and otherwise applied in respect of such Defaulted Advance pursuant to this subsection (a). Any portion of such payment otherwise required to be made by such Borrower to or for the account of such Defaulting Lender which is paid by that Borrower, after giving effect to the amount set off and otherwise applied by each Borrower pursuant to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to the Administrative Agent or any of the other Lender Parties and (iii) any Borrower shall make any payment hereunder or under any other Loan Document to the Administrative Agent for the account of such Defaulting Lender, then the Administrative Agent may, on its behalf or on behalf of such other Lender Parties and to the fullest extent permitted by applicable law, apply at such time the amount so paid by that Borrower to or for the account of such Defaulting Lender to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other Loan Documents payme nt, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Lender Parties, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Lender Parties and, if the amount of such payment made by any Borrower shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent and the other Lender Parties, in the following order of priority:
(i)first, to the Administrative Agent for any Defaulted Amount then owing to the Administrative Agent;
(ii)second, to the Issuing Bank and the Swing Line Bank for any Defaulted Amount then owing to them, in their capacities as such, ratably in accordance with such respective Defaulted Amounts then owing to such Issuing Bank and such Swing Line Bank; and
(iii)third, to any other Lender Parties for any Defaulted Amounts then owing to such other Lender Parties, ratably in accordance with such respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by any Borrower for the account of such Defaulting Lender remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (b), shall be applied by the Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) each Borrower, the Administrative Agent or any other Lender Party shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of such Defaulting Lender, then the Borrowers or such other Lender Party shall pay such amount to the Administrative Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the Administrative Agent shall, to the fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (c) shall be deposited by the Administrative Agent in an account with Bank of America, in the name and under the control of the Administrative Agent, but subject to the provisions of this subsection (c). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Bank of America's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (c). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Lender and to pay any amount payable by such Defaulting Lender hereunder and under the other Loan Documents to the Administrative Agent or any other Lender Party, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insuff icient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority:
(i)first, to the Administrative Agent for any amount then due and payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii)second, to the Issuing Bank and the Swing Line Bank for any amounts then due and payable to them hereunder, in their capacities as such, by such Defaulting Lender, ratably in accordance with such amounts then due and payable to such Issuing Bank and such Swing Line Bank;
(iii)third, to any other Lender Parties for any amount then due and payable by such Defaulting Lender to such other Lender Parties hereunder, ratably in accordance with such respective amounts then due and payable to such other Lender Parties; and
(iv)fourth, to the Borrowers for any Advance then required to be made by such Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any time, cease to be a Defaulting Lender, any funds held by the Administrative Agent in escrow at such time with respect to such Lender Party shall be distributed by the Administrative Agent to such Lender Party and applied by such Lender Party to the Obligations owing to such Lender Party at such time under this Agreement and the other Loan Documents ratably in accordance with the respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section 2.15 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Lender with respect to any Defaulted Advance and that the Administrative Agent or any Lender Party may have against such Defaulting Lender with respect to any Defaulted Amount.
- Evidence of Debt
. (a) Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Advance owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. Each Borrower agrees that upon notice by any Lender Party to it (with a copy of such notice to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender Party to evidence (whether for purposes of pledge enforcement or otherwise) the Advances owing to, or to be made by, such Lender Party, it shall promptly execute and deliver to such Lender Party, with a copy to the Administrative Agent, a Term Note and a Revolving Credit Note, as applicable, in substantially the form of Exhibits A-1 and A-2 hereto, respectively, payable to the order of such Lender Party in a principal amount equal to the Revolving Credit Commitment and the Term Commitment, respectively, of such Lender Party. All references to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder. On the Closing Date, Notes will be executed and delivered by the Company and each Subsidiary Borrower party hereto to each applicable Lender Party. All Notes will be issued by the respective Borrowers outside of Australia.
(b) The Register maintained by the Administrative Agent pursuant to Section 8.07(d) shall include a control account, and a subsidiary account for each Lender Party, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from such Borrower to each Lender Party hereunder, and (iv) the amount of any sum received by the Administrative Agent from such Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender Party in its account or accounts pursuant to subsection (a) above, shall beprima facie evidence of the amount of principal and interest due and payable or to become due and payable from any Borrower to, in the case of the Register, each Lender Party and, in the case of such account or accounts, such Lender Party, under this Agreement absent manifest error;provided, however, that the failure of the Administrative Agent or such Lender Party to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of any Borrower under this Agreement.
- Incremental Facilities and Commitments
. (a) At any time during the term of this Agreement, and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Company may request, from time to time, by notice to the Administrative Agent that one or more Lenders (and/or one or more other Persons which shall become Lenders as provided in Section 2.17(c) below) provide one or more additional facilities to the Company or any of its Subsidiaries (including non-U.S. Subsidiaries) to supplement the Revolving Credit Facility, the Term A Facility or the Term B Facility (each, an "Incremental Facility"), which Incremental Facilities together shall provide for commitments ("Incremental Commitments") for loans in an aggregate principal amount of not greater than $200,000,000 (or its equivalent in other currencies to be agreed) in excess of the aggregate outstanding amount of the Term A Advances, the Term B Advances and the Revolving Credit Commitment, a t the time of the respective request (collectively, "Incremental Loans");provided that(A) no Lender shall have any obligation to provide any Incremental Commitment, (B) any Lender (or any other Person which becomes a Lender pursuant to Section 2.17(c) below) may provide Incremental Commitments without the consent of any other Lender and (C) each of the Term A Facility, the Term B Facility and the Revolving Credit Facility, as the case may be, may only be supplemented once as provided herein.
(b) The maturity date, scheduled amortization and commitment reductions, mandatory prepayments and commitment reductions, interest rate, minimum borrowings and prepayments, commitment fees and other amounts payable in respect of any Incremental Facility, and certain agent determinations and other relevant provisions, shall be as set forth in an agreement (an "Incremental Facility Agreement") among the Loan Parties, the Administrative Agent, the Lenders and other Persons agreeing to provide Incremental Commitments thereunder;provided thatany Incremental Loans to supplement the Term A Facility shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity of the Term A Advances then outstanding, any Incremental Loans to supplement the Term B Facility shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity of the Term B Advances then outstanding and any revolving Incremental Com mitment to supplement the Revolving Credit Commitment shall have a termination date not earlier than the then scheduled Termination Date.
(c) The effectiveness of any Incremental Facility to be created under this Section 2.17, and the obligation of any Lender or other Person providing any Incremental Commitment thereunder to make any Incremental Loans pursuant thereto, is subject to, in addition to the conditions set forth in Article III, the satisfaction of each of the following conditions: (i) each Loan Party, the Administrative Agent, and each Lender or other Person providing Incremental Commitments thereunder (each, an "Incremental Lender") shall have executed and delivered to the Administrative Agent an Incremental Facility Agreement with respect to such Incremental Facility, (ii) the Administrative Agent shall have received for its account and for the respective accounts of any other agents and the Incremental Lenders, all fees and other amounts payable by the Borrowers in respect of such Incremental Facility on or prior to such date of effectiveness and (iii) the Administrative Agent ( or its counsel) shall have received such documents and certificates, and such legal opinions, as the Administration Agent or its counsel shall reasonably request, including documents, certificates and legal opinions relating to the organization, existence and good standing of each Loan Party, the authorization of such Incremental Facility and other legal matters relating to the Loan Parties or the Loan Documents (including the applicable Incremental Facility Agreement). The Administrative Agent shall notify each Lender as to the effectiveness of each Incremental Facility hereunder.
