BofA Indemnitees - BofA, Banc of America Securities LLC, and all of their respective present and future officers, directors, employees, agents and attorneys.
Borrower Representative - as defined inSection 4.4.
Borrowing - a borrowing consisting of Loans of one Type made on the same day by Lenders (or by BofA in the case of a Borrowing funded by Swingline Loans) or a conversion of a Loan or Loans of one Type from Lenders on the same day.
Borrowing Base - on any date of determination thereof, an amount equal to the lesser of: (a) the aggregate amount of the Revolver Commitments on such dateminus the LC Reserve on such date, or (b) an amount equal to (i) the sum of the Accounts Formula Amountplus the Inventory Formula Amountplus the Fixed Asset Sublimit on such dateminus (ii) the Availability Reserve on such date; provided that at any time, the amounts set forth in clause (b) shall be determined by reference to the most recent Borrowing Base Certificate that has been delivered to Agent in accordance with, and subject to the terms of,Section 8.6 hereof and, subject to the adjustment of the Borrowing Base from time to time by Agent in accordance with the terms of this Agreement.
Borrowing Base Certificate - a certificate, in a form similar toExhibit K, as adjusted from time to time in accordance with this Agreement, by which Borrowers shall certify to Agent and Lenders, the amount of the Borrowing Base as of the date of the certificate (which date shall be not more than 25 days earlier than the date of submission of such certificate to Agent) and the calculation of such amount.
Business Day - any day excluding Saturday, Sunday and any other day that is a legal holiday under the laws of the State of New York, the State of North Carolina or the State of Georgia or is a day on which banking institutions located in such state are closed;provided,however, that when used with reference to a LIBOR Loan (including the making, continuing, prepaying or repaying of any LIBOR Loan), the term "Business Day" shall also exclude any day on which banks are not open for dealings in Dollar deposits on the London interbank market.
Capital Adequacy Regulation - any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case regarding capital adequacy of any bank or of any corporation controlling a bank.
Capital Expenditures - expenditures made or liabilities incurred by a Borrower for the acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one year, including Capitalized Lease Obligations, that are set forth in a consolidated statement of cash flow of Consolidated Group Members for such period prepared in accordance with GAAP.
Capitalized Lease Obligation - any Debt represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.
Cash Collateral - cash, and any interest or other income earned thereon, that is deposited with Agent in accordance with this Agreement for the Pro Rata benefit of Lenders to Cash Collateralize any LC Obligations or other Obligations.
Cash Collateral Account - a demand deposit, money market or other account established by Agent at BofA or such other such financial institution as Agent may select in its discretion, which account shall be in Agent's name and subject to Agent's Liens.
Cash Collateralize - with respect to LC Obligations arising from Letters of Credit outstanding on any date or Obligations arising under Hedging Agreements on such date, the deposit with Agent of immediately available funds into the Cash Collateral Account in an amount equal to 103% of the sum of the aggregate Undrawn Amounts of such Letters of Credit and other LC Obligations, all Obligations existing under such Hedging Agreements, and all related fees and other amounts due in connection with such LC Obligations and Hedging Agreements.
Cash Equivalents - (i) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government having maturities of not more than 12 months from the date of acquisition; (ii) domestic certificates of deposit and time deposits having maturities of not more than 12 months from the date of acquisition, bankers' acceptances having maturities of not more than 12 months from the date of acquisition and overnight bank deposits, in each case issued by any commercial bank organized under the laws of the United States, any state thereof or the District of Columbia, which at the time of acquisition are rated A-1 (or better) by S&P or P-1 (or better) by Moody's, and (unless issued by a Lender) not subject to offset rights in favor of such bank arising from any banking relationship with such bank; (iii) repurchase obligations with a term of not more t han 30 days for underlying securities of the types described in clauses (i) and (ii) entered into with any financial institution meeting the qualifications specified in clause (ii) above or with any primary dealer; (iv) commercial paper having at the time of investment therein or a contractual commitment to invest therein a rating of A-1 or next highest (or better) by S&P or P-1 or next highest (or better) by Moody's, and having a maturity within 12 months after the date of acquisition thereof; and (v) shares of any money market fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) - (iv), (b) has net assets not less than $500,000,000 and (c) has the highest or next highest rating obtainable from either Moody's or S&P.
Cash Management Agreements - any agreement entered into from time to time between any Borrower or any of its Subsidiaries, on the one hand, and any Lender or any of its Affiliates, on the other, in connection with cash management services for operating, collections, payroll and trust accounts of such Borrower or its Subsidiaries provided by such banking or financial institution, including automatic clearinghouse services, controlled disbursement services, electronic funds transfer services, information reporting services, lockbox services, stop payment services and wire transfer services.
CERCLA - the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. Section9601etseq.).
Change of Control - the occurrence of any of the following: (i) 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 Parent with a combined voting power sufficient to elect a majority of the board of directors of Parent, any Person (other than Parent or any of its Subsidiaries, ALI or the EWS Parties or any employee benefit plan of Parent or any of its Subsidiaries which acquires beneficial ownership of voting interests of Parent) shall acquire, or acquire the power to vote or direct the voting of, 30% or more, on a fully diluted basis, of the outstanding Equity Interests of Parent; (ii) a Consolidated Group Member is merged with or into another Person, other than a Consolidated Group Member except as permitted underSection 10.2.1; (iii) any Person or related group of Persons acquires by way of a purchase, merger, consolidation or other business combination a m ajority of the Equity Interests entitled to vote in the election of directors of Parent (other than ALI or an EWS Party); or (iv) a change in the majority of the board of directors of Parent unless approved by the then majority of the board of directors of Parent,provided, however, that for the purpose of clauses (i) and (iii) above, the terms "Person" 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 Parent 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 Parent by any such p erson (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 descendant 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 the Equity Interests in Parent 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 Parent in such definition being deemed to refer to ALI.
Chattel Paper - shall have the meaning given to the term "chattel paper" in the UCC.
Claims - all liabilities, losses, damages, actions, judgments, suits and related charges, expenses and disbursements of any kind or nature (including reasonable attorneys' fees and expenses for one counsel (and local counsels if determined by Agent) for Agent, and one counsel for all other Indemnitees) which may at any time (including at any time following Full Payment of the Obligations, termination of the Commitments, resignation or replacement of Agent or replacement of any Lender) be imposed on, incurred by, or asserted against any Indemnitee in any way relating to or arising out of (i) the enforcement under any of the Loan Documents or consummation of any of the transactions described herein, (ii) any action taken or omitted to be taken by any Indemnitee under or in connection with any of the Loan Documents or Applicable Law, (iii) the existence, perfection or realization upon Agent's Liens upon any Collateral, (iv) the exercise by Agent or any Lender of any of it s rights or remedies under any of the Loan Documents or Applicable Law, or (v) the failure of any Obligor to observe, perform or discharge any of such Obligor's covenants or duties under any of the Loan Documents or the inaccuracy or incompleteness of any representation or warranty of any Borrower in any of the Loan Documents, in each case including any costs or expenses incurred by any Indemnitee in connection with any investigation, litigation, arbitration or other judicial or non-judicial proceeding (including any Insolvency Proceeding or appellate proceedings) whether or not such Indemnitee is a party thereto;provided,however that notwithstanding anything to the contrary contained in this Agreement, no party shall have any obligation under this Agreement to indemnify an Indemnitee with respect to any Claim to the extent that it is determined in a final, non-appealable judgment by a court of competent jurisdiction that such Claim resulted from the gross negligence or willful miscond uct of such Indemnitee (or its officers, directors, employees, agents or attorneys).
Closing Date - the date on which all of the conditions precedent inSection 11 are satisfied or waived and the initial Loans are made under this Agreement.
Collateral - all of the Property and interests in Property described inSection 7; all Property described in any of the Security Documents as security for the payment or performance of any of the Obligations; and all other Property and interests in Property that now or hereafter secure (or are intended to secure) the payment and performance of any of the Obligations.
Commercial Tort Claim - shall have the meaning given to the term "commercial tort claim" in the UCC.
Commitment - at any date for any Lender, the amount of such Lender's Revolver Commitment on such date, and "Commitments" means the aggregate amount of all Revolver Commitments on such date.
Commitment Termination Date - the date that is the soonest to occur of (i) the last day of the Term; (ii) the date on which either Borrowers or Agent terminate the Revolver Commitments pursuant toSection 6.2; or (iii) the date on which the Revolver Commitments are automatically terminated pursuant toSection 12.2.
Compliance Certificate - a Compliance Certificate to be provided by Borrowers to Agent in accordance with, and in the form annexed asExhibit E to, this Agreement and the supporting schedules to be annexed thereto.
Consolidated - the consolidation in accordance with GAAP of the accounts or other items as to which such term applies.
Consolidated Group - Parent and each of its Domestic Subsidiaries.
Consolidated Group Member - a Person that is in the Consolidated Group.
Consolidated Net Income - for any period, the net income of the Consolidated Group for such period, determined on a Consolidated basis and in accordance with GAAP but excluding for each such period (without duplication):
(a) any gain or loss arising from the sale of capital assets;
(b) any gain arising from any write-up of assets during such period and any loss arising from any write down of assets during such period;
(c) net income of any Consolidated Group Member accrued prior to the date it became a Consolidated Group Member;
(d) net income of any other Person, substantially all the assets of which have been acquired in any manner by a Consolidated Group Member, realized by such Person and accrued prior to the date of such acquisition;
(e) net income of any entity (other than a Consolidated Group Member) in which a Consolidated Group Member has an ownership interest (unless such net income has actually been received by a Consolidated Group Member in the form of cash Distributions but excluding such cash Distributions that have been used to repay, defease or redeem the Senior Notes or the Convertible Notes);
(f) the net income of any Consolidated Group Member to the extent that such Consolidated Group Member is prohibited from making any payment of Distributions to any Consolidated Group Member;
(g) the net income of any Person (other than a Consolidated Group Member) into which a Consolidated Group Member shall have merged or consolidated with, accrued prior to the date of such transaction; and
(h) the net income of any 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 distributions actually paid to such Person or any of its Subsidiaries by such other Person during such period.
Contingent Obligation - with respect to any Person, any obligation of such Person arising from any guaranty or other assurance of payment or performance of any Debt, lease, dividend or other obligation ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including (i) the direct or indirect guaranty, 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, (ii) 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 standard minimum purchase requirements under supply agreements with Borrowers' vendors in the Ordinary Course of Business), (iii) any obligation of such Person, whether or not contingent, (A) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (B) to advance or supply funds (1) for the purchase or payment of any such primary obligations or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (C) to purchase Property 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 (D) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof;provided,however that the term "Contingent Obligations" shall not include contingent obligations incurred in the Ordinary Course of Business or any indemnities given under or liabilities retained in connection with any Permitted Asset Disposition, Permitted Acquisition or Permitted Investment. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to 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 with respect thereto, as determined by such Person in good faith.
Controlled Disbursement Account - a demand deposit account maintained by Borrowers at BofA and to which proceeds of Loans may be wired from time to time.
Covenant Spring-Back Date - as such term is defined inSection 10.3.1.
CWA - the Clean Water Act (33 U.S.C. SectionSection 1251etseq.).
Debt - as applied to a Person means, without duplication: (i) all items which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet of such Person as of the date as of which Debt is to be determined, including Capitalized Lease Obligations; (ii) all Contingent Obligations of such Person; (iii) all reimbursement obligations in connection with letters of credit or letter of credit guaranties issued for the account of such Person; and (iv) in the case of a Borrower (without duplication), the Obligations; provided that 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 sho uld be reported as "debt" for the purposes of GAAP. The Debt of a Person shall include any recourse Debt of any partnership or joint venture in which such Person is a general partner or joint venturer to the extent such Person is liable therefor.
Default - an event or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.
Default Rate - on any date, a rate per annum that is equal to (i) in the case of each Revolver Loan outstanding on such date, 2% in excess of the rate otherwise applicable to such Loans on such date, and (ii) in the case of any of the other Obligations outstanding on such date, 2.50% in excess of the Base Rate in effect on such date.
Deposit Account - shall have the meaning given to the term "deposit account" in the UCC.
Deposit Account Control Agreements - the Deposit Account Control Agreements to be executed by each depository institution of a Borrower in favor of Agent as security for the Obligations, in accordance withSection 8.5.
Distribution - in respect of any entity, (i) any payment of any dividends or other distributions on Equity Interests of the entity (except distributions in such Equity Interests) and (ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests of the entity unless made contemporaneously from the net proceeds of the sale of Equity Interests.
Document - shall have the meaning given to the term "document" in the UCC.
Dollars and the sign $ - lawful money of the United States of America.
Domestic Subsidiary - a Subsidiary of a Borrower (other than a Subsidiary that is a Borrower) that is incorporated under the laws of a state of the United States or the District of Columbia.
Dominion Account - a special account of Agent established by Borrowers at BofA and over which Agent shall have exclusive access and control for withdrawal purposes.
Dominion Spring-Back Date - as such term is defined inSection 8.2.5(ii).
EBITDA - on any date of determination thereof, with respect to the Consolidated Group (A) Consolidated Net Income plus to the extent included (i) non-cash expenses including non-cash restructuring charges and impairment charges; (ii) any non-cash gain arising from extraordinary or non-recurring items; (iii) impairment or amortization of goodwill and other intangibles; (iv) costs and expenses incurred in connection with the entering into by the Obligors of the Loan Documents, any defeasance, redemption, refinancing or escrow of the Senior Notes and the Convertible Notes occurring after the Closing Date, acquisitions or dispositions permitted hereunder (including any Permitted Portfolio Transaction); (v) all non-cash expenses taken in connection with employee stock options and other employee equity awards following adoption of Financial Accounting Standard 123R; (vi) provision for taxes based upon income; (vii) interest expense; and (viii) depreciation and amortization expenses, all a s determined in accordance with GAAP on a Consolidated basis.
Electronic Chattel Paper - shall have the meaning given to the term "electronic chattel paper" in the UCC.
Eligible Account - an Account that arises in the Ordinary Course of Business of a Borrower from the sale of goods, is payable in Dollars, is subject to Agent's duly perfected Lien, and is deemed by Agent, in its reasonable credit judgment, to be an Eligible Account. Without limiting the generality of the foregoing, no Account shall be an Eligible Account if (i) it arises out of a sale made by a Borrower to an Affiliate of a Borrower, a Person controlled by an Affiliate of a Borrower or a Blocked Person; (ii) it is unpaid for more than 60 days after the original due date shown on the invoice; (iii) it is due or unpaid more than 150 days after the original invoice date; (iv) 50% or more of the Accounts from the Account Debtor are not deemed Eligible Accounts hereunder; (v) the total unpaid Accounts of the Account Debtor exceed 15% of the aggregate amount of all Eligible Accounts or exceed a higher cr edit limit established by Agent for such Account Debtor, in each case, to the extent of such excess; (vi) any covenant, representation or warranty contained in this Agreement with respect to such Account has been breached in any material respect; (vii) the Account Debtor is also such Borrower's creditor or supplier, or has disputed liability with respect to such Account or has made any claim with respect to any other Account due from such Account Debtor to such Borrower, or the Account otherwise is or may become subject to any right of setoff, counterclaim, recoupment, reserve, defense or chargeback, provided that, the Accounts of such Account Debtor shall be ineligible only to the extent of such dispute or right of offset, counterclaim, recoupment, reserve, defense or chargeback; (viii) an Insolvency Proceeding has been commenced by or against the Account Debtor or the Account Debtor has failed, suspended or ceased doing business or the Account Debtor is unable in general to pay i ts debts as they become due; (ix) it arises from a sale to an Account Debtor that is organized under the laws of any jurisdiction outside of the United States except to the extent that the sale is supported or secured by an Approved Credit Enhancement; (x) it arises from a sale to the Account Debtor on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, or consignment basis (unless each of the Permitted Consignment Sale Conditions have been satisfied) or any other repurchase or return basis; (xi) the Account Debtor is the United States of America or any department, agency or instrumentality thereof, unless the applicable Borrower is not prohibited from assigning the Account and does assign its right to payment of such Account to Agent, in a manner satisfactory to Agent, so as to comply with the Assignment of Claims Act of 1940 (31 U.S.C. Section3727 and 41 U.S.C. Section15), or is a state, county or municipality, or a political subdivision or agency thereof and Applicable Law disall ows or restricts an assignment of Accounts on which it is the Account Debtor; (xii) the Account Debtor is located in New Jersey, Minnesota, Indiana or any other jurisdiction which imposes conditions on the right of, or restricts the ability of, a creditor to collect accounts receivable unless the applicable Borrower has either qualified to transact business in such jurisdiction as a foreign entity or filed a Notice of Business Activities Report or other required report with the appropriate officials in those jurisdictions for the then current year; (xiii) the Account is subject to a Lien other than a Permitted Lien; (xiv) the goods giving rise to such Account have not been delivered to and accepted by the Account Debtor or the Account otherwise does not represent a final sale; (xv) the Account is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (xvi) the Account represents a progress billing or a retainage or arises from a sale on a cash-on-de livery basis; (xvii) such Borrower has made any agreement with the Account Debtor for any deduction therefrom, except for discounts or allowances which are made in the Ordinary Course of Business and which discounts or allowances are reserved for by Borrowers in accordance with GAAP; (xviii) such Borrower has made an agreement with the Account Debtor to extend the time of payment thereof; (xix) the Account represents, in whole or in part, a billing for interest, fees or late charges, provided that such Account shall be ineligible only to the extent of the amount of such billing; (xx) the Account Debtor has made a partial payment with respect to such Account; (xxi) it arises from the sale of Inventory that is not Eligible Inventory pursuant to clause (ii) of the definition of "Eligible Inventory"; or (xxii) it arises from a retail sale of Inventory to a Person who is purchasing the same primarily for personal, family or household purposes.
Eligible Assignee - a Person that is a Lender, a U.S. based Affiliate of a Lender or an Approved Fund (as defined below); a commercial bank, finance company, or other financial institution, in each case that is organized under the laws of the United States or any state, has total assets in excess of $5 billion, extends asset-based lending facilities of the type contemplated herein in the Ordinary Course of Business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of ERISA or any other Applicable Law, is acceptable to Agent and, unless an Event of Default exists, Borrowers (such approval by Borrowers, when required, not to be unreasonably withheld or delayed) and, at any time that an Event of Default exists, any other Person (other than a competitor of Borrowers) acceptable to Agent in its discretion. The term "Approved Fund" means with respect to any Lender, any Person (other than a natural person) that is engaged in making, purch asing, holding or investing in bank loans and similar extensions of credit in the Ordinary Course of Business of such Person and that is administered or managed by (i) such Lender, (ii) an Affiliate of such Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.
Eligible Equipment - new Equipment located in the United States which (i) is owned by a Borrower and has been delivered to and accepted by a Borrower and installed at premises owned or leased by a Borrower; (ii) is subject to Agent's duly perfected security interest and no other Lien that is not a Permitted Lien; (iii) does not and will not, after delivery to and installation at a Borrower's premises (other than premises owned by any Consolidated Group Member), constitute a fixture under Applicable Law unless each landlord and mortgagee in respect of such premises have executed in favor of Agent a Lien Waiver; and (iv) does not and will not, after delivery to and installation at a Borrower's premises, constitute an accession to other Equipment that is subject to any Lien (whether or not a Permitted Lien) in favor of any Person other than Agent unless the holder of any such Lien agrees to disclaim any interest in the Eligible Equipment.
Eligible Inventory - Inventory which is owned by a Borrower (other than packaging or shipping materials, labels, samples, display items, bags and manufacturing supplies) and which Agent, in its reasonable credit judgment, deems to be Eligible Inventory. Without limiting the generality of the foregoing, no Inventory shall be Eligible Inventory unless: (i) it is raw materials or finished goods; (ii) it is owned by a Borrower and it is not held by such Borrower on consignment from or subject to any guaranteed sale, sale-or-return, sale-on-approval or repurchase agreement with any supplier; (iii) it is not damaged, not defective, not obsolete, not otherwise unfit for sale and is in good and saleable condition and is not goods returned to such Borrower by or repossessed from an Account Debtor; (v) it is and continues to be FDA-approved and meets all other material standards imposed by any Governmental Authority; (vi) it conforms in all material respects to the warranties and representations set forth in this Agreement and is fully insured in the manner required by this Agreement; (vii) it is at all times subject to Agent's duly perfected, first priority security interest and no other Lien except a Permitted Lien; (viii) it is in such Borrower's possession and control at a location in compliance with this Agreement, is not in transit or outside the United States (except for Permitted Canadian Inventory) and is not consigned to any Person unless each of the Permitted Consignment Sale Conditions have been satisfied; (ix) it is not the subject of a negotiable warehouse receipt or other negotiable Document; (x) it has not been sold or leased and such Borrower has not received any deposit or downpayment in respect thereof in anticipation of a sale; (xi) no more than 50% of such Inventory consists of a single product; (xii) the age for a human health generic or an animal health generic is no more than 360 day s and 180 days, respectively, prior to its expiration date; and (xiii) it appears in the details of a current perpetual inventory report.
Eligible Real Estate- the Real Estate listed onExhibit Jand otherReal Estate in the United States that is owned by a Borrower in fee simple title or which is subject to a ground lease reasonably acceptable to Agent, which satisfies each of the following conditions as determined by Agent:
(i) Agent has a perfected first-priority Lien in such Real Estate for the benefit of the Secured Parties (subject only to Permitted Liens) andthe applicable Borrower has executed and delivered to Agent such Mortgages and other documents as Agent may request;
(ii) such Real Estate has been appraised by a third party appraiser reasonably acceptable to Agent and the results of such appraisal are satisfactory in all respects to Agent;
(iii) Agent has received an environmental site assessment of such Real Estate acceptable to Agent in all respects;
(iv) such Real Estate is improved by fully constructed buildings occupied by Borrowers and utilized as Borrowers' corporate offices or for their manufacturing, development and distribution of pharmaceutical products; and
(v) the applicable Borrower has delivered to Agent title insurance, surveys, flood insurance certifications and other real estate items, as required by, and satisfactory to, Agent, including, but not limited to, those items required by FIRREA.
Enforcement Action - action taken or to be taken by Agent, during any period that an Event of Default exists, to enforce collection of the Obligations or to realize upon the Collateral (whether by judicial action, under power of sale, by self-help repossession, by notification to Account Debtors, or by exercise of rights of setoff or recoupment).
Environmental Agreement - the Agreement Regarding Environmental Matters executed by Borrowers in favor of Agent on or about the Original Closing Date, which Agreement sets forth the understanding and agreements of Indemnitees, Agent and Lenders with respect to environmental matters and by which each Borrower shall, among other things, indemnify Agent and Lenders from liability for such Borrower's failure to comply with any Environmental Laws.
Environmental Laws - all federal, state, local and foreign laws, rules, regulations, codes, ordinances, orders and consent decrees (together with all programs, permits and guidance documents promulgated by regulatory agencies, to the extent having the force of law), now or hereafter in effect, that relate to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, whether new or hereafter in effect, including CERCLA, RCRA and CWA.
Environmental Reserve - a reserve to be included in the Availability Reserve in an amount equal to the costs and expenses of remediation with respect to any of the Real Estate, as determined by Agent in its reasonable credit judgment. Agent may release all or any portion of such Environmental Reserve upon receipt by Agent of written evidence, satisfactory to Agent in all respects, that such remediation has been completed and that the Real Estate is in compliance with all Environmental Laws.
Equipment - shall have the meaning given to the term "equipment" in the UCC and shall include all of each Borrower's machinery, apparatus, equipment, fittings, furniture, fixtures and other tangible personal Property (other than Inventory) of every kind and description, whether now owned or hereafter acquired by such Borrower and wherever located, and all parts, accessories and special tools therefor, all accessions thereto, and all substitutions and replacements thereof, excluding motor vehicles.
Equity Interest - the interest of (i) a shareholder in a corporation, (ii) a partner (whether general or limited) in a partnership (whether general, limited or limited liability), (iii) a member in a limited liability company, or (iv) any other Person having any other form of equity security or ownership interest.
ERISA - the Employee Retirement Income Security Act of 1974.
Euro Debt- any Debt incurred or issued by any Foreign Subsidiary of Parent, which indebtedness could include, without limitation, a European high yield offering, an asset based credit facility and/or a bridge facility.
Event of Default - as defined in Section 12.
EWS Party - has the meaning ascribed to such term in the definition of "Change of Control."
Excess Borrowing Base Amount - the amount by which the Borrowing Base on any date of determination exceeds the Pro Forma Borrowing Base.
Excess FAS Amount - on any date of determination, the difference between (i) the Fixed Asset Sublimit on the Closing Date, as reduced after the Closing Date by the quarterly amortization amounts referenced in the definition of Fixed Asset Sublimit and (ii) on any date of determination after the Closing Date in connection with a prepayment underSection 5.3.1, an amount equal to the sum of (I) 85% of the Appraised Net Orderly Liquidation Value of Eligible Equipment and (II) 65% of the Appraised Fair Market Value of Eligible Real Estate.
Exchange Act - the Securities Exchange Act of 1934, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
Executive Order No. 13224 - Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001.
Extraordinary Expenses - all costs, expenses, fees (including fees incurred to Agent Professionals) or advances that Agent (or any Lender) may suffer or incur in connection with the Obligations or the Loan Documents during any period that an Event of Default exists, or during the pendency of an Insolvency Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection, repossession, storage, repair, appraisal, insuring, completion of the manufacture of, preparing for sale, advertising for sale, selling, collecting or otherwise preserving or realizing upon any Collateral; (ii) any action, suit, litigation, arbitration, contest or other judicial or non-judicial proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of any Obligor or any other Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection, priority or avoidability of Agent's Lien s with respect to any of the Collateral), any of the Loan Documents or the validity, allowance or amount of any of the Obligations, including any lender liability or other Claims asserted against Agent or any Lender; (iii) the exercise, protection or enforcement of any rights or remedies of Agent in, or the monitoring of, any Insolvency Proceeding; (iv) the settlement or satisfaction of any Liens upon any Collateral (whether or not such Liens are Permitted Liens); (v) the collection or enforcement of any of the Obligations, whether by Enforcement Action or otherwise; (vi) the negotiation, documentation, and closing of any amendment, waiver, restructuring or forbearance agreement with respect to the Loan Documents or Obligations; (vi) amounts advanced by Agent pursuant to Sections 8.1.3 or 15.10; or (viii) the enforcement of any of the provisions of any of the Loan Documents;provided,however, that such expenses shall include the reasonable legal f ees and expenses of only one counsel to Agent (and any necessary local counsel as determined by Agent) and in addition, Lenders who are not the Agent shall be entitled to reimbursement for no more than one counsel representing all such Lenders (absent a conflict of interest in which case Lenders may engage and be reimbursed for additional counsel). Extraordinary Expenses shall not include the allocation of any overhead expenses consisting of rent, utilities and employee salaries of any Secured Party. Such costs, expenses and advances may include transfer fees, taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers' fees and commissions, auctioneers' fees and commissions, accountants' fees, environmental study fees, wages and salaries paid to employees of any Borrower or independent contractors in liquidating any Collateral, travel expenses, all other fees and expenses payable or reimbursable by Borrowers or any other Obligor under any of the Loan Documents, and all other reasonable fees and expenses associated with the enforcement of rights or remedies under any of the Loan Documents, but excluding compensation paid to employees (including inside legal counsel who are employees) of Agent or any Lender and in each case, subject to the limitations set forth above.
FDA - the United States Food and Drug Administration, and any Governmental Authority succeeding to any of its principal functions.
Federal Funds Rate - for any period, a fluctuating interest rate per annum equal for each date during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from 3 federal funds brokers of recognized standing selected by Agent.
Fee Letter - the fee letter agreement dated on or before the Original Closing Date among Agent, Banc of America Securities LLC and Borrowers.
FEIN - with respect to any Person, the Federal Employer Identification Number of such Person.
Financed Capital Expenditures - (i) Capital Expenditures funded with the proceeds of Debt permitted underSection 10.2.3, including Permitted Purchase Money Debt (excluding Loans) and those represented by Capitalized Lease Obligations, (ii) Capital Expenditures funded with the proceeds of any equity securities issued or capital contributions received, or Debt borrowed (other than Borrowings under this Agreement) by any Consolidated Group Member, (iii) Capital Expenditures that satisfy the requirements of a Permitted Acquisition or Permitted Investment, (iv) any expenditures which are contractually required to be, and are, reimbursed to a Consolidated Group Member in cash by a third party (including landlords) during such period of calculation, (v) Capital Expenditures made with the cash proceeds of any insurance, condemnation or eminent domain event, or (vi) Capital Expenditures made with the cash proceeds from any Permitted Asset Disposition (other than proceeds of any Inven tory, Accounts, Eligible Equipment and Eligible Real Estate).
FIRREA - Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
Fiscal Month - each calendar month in Borrowers' Fiscal Year.
Fiscal Quarter - 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 - the fiscal year of Borrowers and their Subsidiaries for accounting and tax purposes, which ends on December 31 of each year.
Fixed Asset Sublimit - on any date of determination thereof, an amount equal to the lesser of (i) the sum of (x) 80% of the Appraised Net Orderly Liquidation Value of Eligible Equipment and (y) 75% of the Appraised Fair Market Value of Eligible Real Estate or (ii) $11,000,000. The Fixed Asset Sublimit shall be reduced on a quarterly basis in accordance with the following schedule:
