Exhibit 99.1
Execution Version
CREDIT AGREEMENT
dated as of
November 4, 2010
among
CON-WAY INC.,
as the Borrower
The Banks Party Hereto
PNC BANK, NATIONAL ASSOCIATION
as the Agent
and
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agent
______________________________
PNC CAPITAL MARKETS LLC
and
U.S. BANK NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Book Runners
______________________________
BANK OF AMERICA, N.A.
and
ROYAL BANK OF CANADA
as Co-Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS
Section 1.01Definitions.......................................
Section 1.02Accounting Terms and Determinations...............
Section 1.03Types of Borrowings...............................
ARTICLE 2 THE CREDITS
Section 2.01Commitments to Lend...............................
Section 2.02Notice of Committed Borrowing.....................
Section 2.03Intentionally Omitted.............................
Section 2.04Notice to Banks; Funding of Loans; Additional Provisions
Relating to Swingline Loans.
Section 2.05Notes; Loan Accounts; Records.....................
Section 2.06Maturity of Loans.................................
Section 2.07Interest Rates....................................
Section 2.08Fees..............................................
Section 2.09Optional Termination or Reduction of Commitments..
Section 2.10Method of Electing Interest Rates.................
Section 2.11Mandatory Termination of Commitments..............
Section 2.12Optional Payments.................................
Section 2.13General Provisions as to Payment..................
Section 2.14Funding Losses....................................
Section 2.15Computation of Interest and Fees..................
Section 2.16Letters of Credit.................................
Section 2.17Maximum Interest Rate.............................
Section 2.18Defaulting
Banks.................................................................33
ARTICLE 3 CONDITIONS
Section 3.01Conditions to Effectiveness.......................
Section 3.02Credit Extensions.................................
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
Section 4.01Corporate Existence and Power.....................
Section 4.02Corporate and Governmental Authorization; No Contravention.
Section 4.03Binding Effect....................................
Section 4.04Financial Information.............................
Section 4.05Litigation........................................
Section 4.06Compliance with ERISA.............................
Section 4.07Environmental Matters.............................
Section 4.08Taxes.............................................
Section 4.09Subsidiaries......................................
Section 4.10Not an Investment Company; Federal Reserve Regulations.
Section 4.11Full Disclosure...................................
ARTICLE 5 COVENANTS
Section 5.01Information.......................................
Section 5.02Payment of Obligations............................
Section 5.03Maintenance of Property; Insurance................
Section 5.04Conduct of Business and Maintenance of Existence..
Section 5.05Compliance with Laws..............................
Section 5.06Inspection of Property, Books and Records.........
Section 5.07Debt..............................................
Section 5.08Leverage Ratio....................................
Section 5.09Negative Pledge...................................
Section 5.10Consolidations, Mergers and Sales of Assets.......
Section 5.11Use of Proceeds...................................
Section 5.12Fixed Charge Coverage.............................
Section 5.13Transactions with Third Party Affiliates..........
Section 5.14Anti-Terrorism....................................
Section 5.15
Acquisitions..........................................................50
ARTICLE 6 DEFAULTS
Section 6.01Events of Default.................................
Section 6.02Notice of Default.................................
ARTICLE 7 THE AGENT AND THE CO-AGENTS
Section 7.01Appointment and Authorization.....................
Section 7.02Agent and Affiliates..............................
Section 7.03Action by Agent...................................
Section 7.04Consultation with Experts; Delegation of Duties...
Section 7.05Liability of Agent................................
Section 7.06Reliance by the Agent.............................
Section 7.07Notice of Default.................................
Section 7.08Indemnification...................................
Section 7.09Credit Decision...................................
Section 7.10Successor Agent...................................
Section 7.11Additional Agents.................................
ARTICLE 8 CHANGE IN CIRCUMSTANCES
Section 8.01Basis for Determining Interest Rate Inadequate or Unfair.
Section 8.02Illegality........................................
Section 8.03Increased Cost and Reduced Return.................
Section 8.04Taxes.............................................
Section 8.05Base Rate Loans Substituted for Affected Fixed Rate Loans.
Section 8.06Substitution of Banks.............................
ARTICLE 9 MISCELLANEOUS
Section 9.01Notices...........................................
Section 9.02No Waivers........................................
Section 9.03Expenses; Indemnification.........................
Section 9.04Set-Off; Sharing of Set-offs......................
Section 9.05Amendments and Waivers............................
Section 9.06Successors and Assigns............................
Section 9.07Collateral........................................
Section 9.08Governing Law; Submission to Jurisdiction.........
Section 9.09Counterparts; Integration.........................
Section 9.10Waiver of Jury Trial..............................
Section 9.11Confidentiality...................................
Section 9.12Survival..........................................
Section 9.13Patriot Act Notice................................
SCHEDULE 1A Commitment Schedule
SCHEDULE 1B Maximum LC Commitment Schedule
SCHEDULE 2 Pricing Schedule
SCHEDULE 3 Notices
SCHEDULE 5.07 List of Subsidiary Debt
SCHEDULE 5.09 List of Existing Liens
EXHIBIT A Form of Note
EXHIBIT B Assignment and Assumption Agreement
EXHIBIT C Subsidiary Guaranty Agreement
EXHIBIT D List of Existing Letters of Credit
EXHIBIT E Form of New Commitment Agreement
EXHIBIT F Swingline Note
i
CREDIT AGREEMENT
THIS AGREEMENT dated as of November 4, 2010, is by and among CON-WAY
INC., a Delaware corporation, the BANKS party hereto, PNC BANK, NATIONAL
ASSOCIATION, as Administrative Agent, and U.S. BANK NATIONAL ASSOCIATION, as
Syndication Agent.
WITNESSETH
WHEREAS, the Borrower has requested that the Banks provide Three Hundred
Twenty Five Million Dollars ($325,000,000.00) in credit facilities for the
purposes hereinafter set forth; and
WHEREAS, the Banks have agreed to make the requested credit facilities
available to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE
DEFINITIONS
Section . Definitions.
The following terms, as used herein, have the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted
to the Agent (with a copy to the Borrower) duly completed by such Bank.
"Agent" means PNC, as administrative agent for the Banks, and its
successors in such capacity.
"Aggregate Usage" means, at any time, the sum of (a) the aggregate
outstanding principal amount of the Loans at such time (with each outstanding
Swingline Loan being deemed to be participated by each Bank on a pro rata
basis) plus (b) the aggregate outstanding amount of the LC Liabilities at
such time.
"Agreement" means this Agreement, as it may be amended, modified,
supplemented and extended from time to time.
"Applicable Lending Office" means, with respect to any Bank, (a) in the
case of its Base Rate Loans, its Domestic Lending Office, and (b) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Approved Fund" means any Fund that is administered or managed by (a) a
Bank, (b) an affiliate of a Bank or (c) an entity or an affiliate of an
entity that administers or manages a Bank.
"Assignee" has the meaning set forth in Section 9.06(c).
"Assignment and Assumption Agreement" has the meaning set forth in
Section 9.06(c).
"Auto-Extension LC" has the meaning set forth in Section 2.16(b)(ii).
"Bank" means each bank or other financial institution listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors and, where appropriate,
shall include the Swingline Bank and each LC Issuing Bank.
"Base Rate" means, for any day, a fluctuating rate per annum equal to
the highest of (a) the Prime Rate for such day, (b) the sum of 1/2 of 1%
plus the Federal Funds Open Rate for such day, and (c) the sum of 1% plus the
Daily Euro-Dollar Rate for such day.
"Base Rate Loan" means a Committed Loan which bears interest based upon
the Base Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or pursuant to Article 8.
"Base Rate Margin" means the marginal rate per annum intended to be
added to the Base Rate for purposes of calculating interest on Base Rate
Loans, determined in accordance with the Pricing Schedule.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer
Plan and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Blocked Person" means
(a) a Person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order No. 13224 or is
owned or controlled by, or acting for or on behalf of, any such Person;
(b) a Person or entity with which any Bank is prohibited
from dealing or otherwise engaging in any transaction by the Patriot Act or
other anti-terrorism law;
(c) a Person or entity that commits, threatens or
conspires to commit or supports "terrorism" as defined in the Executive Order
No. 13224;
(d) a Person or entity that is named as a "specially
designated national" on the most current list published by the U.S. Treasury
Department Office of Foreign Asset Control at its official website or any
replacement website or other replacement official publication of such list,
or
(e) a Person or entity who is affiliated or associated
with a Person or entity listed above.
"Borrower" means Con-way Inc., a Delaware corporation, and its
successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Business Day" means any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for
business in Pittsburgh, Pennsylvania and if the applicable Business Day
relates to any Euro-Dollar Loan, such day must also be a day on which
dealings are carried on in the London interbank market.
"Closing Date" has the meaning set forth in Section 3.01.
"Commitment" means, as the context requires, either (a) the commitment
of a Bank to extend credit to the Borrower hereunder or (b) the amount of
such commitment, which is (i) with respect to any Bank listed on Schedule 1A,
the amount set forth opposite the name of such Bank on Schedule 1A or
(ii) with respect to any Assignee, the amount of the transferor Bank's
Commitment assigned to such Assignee pursuant to Section 9.06(c), in each
case as such amount may be reduced from time to time pursuant to Section 2.09
or Section 2.11 or changed as a result of an assignment pursuant to
Section 9.06(c).
"Committed Loan" means a Loan made by a Bank pursuant to
Section 2.01(a); provided that, if any such Loan or Loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Consenting Bank" has the meaning set forth in Section 2.01(b).
"Consolidated Debt" means, at any date, the Debt of the Borrower and its
Consolidated Subsidiaries including Debt incurred in connection with any
Receivables Financing, whether or not included on the Borrower's consolidated
balance sheet, determined on a consolidated basis as of such date, less, to
the extent included in the determination of Debt of the Borrower and its
Consolidated Subsidiaries, all obligations of the Borrower and its
Consolidated Subsidiaries in respect of interest rate protection agreements,
foreign currency exchange agreements, commodity purchase or option agreements
or other interest or exchange rate or commodity price hedging agreements.
"Consolidated EBITDA" means, for any period, the sum of, without
duplication, (a) the consolidated net income before income taxes of the
Borrower and its Consolidated Subsidiaries for such period plus (b) to the
extent deducted in determining such consolidated net income before income
taxes, the sum of (i) interest expense, (ii) depreciation and amortization,
(iii) other non-cash items (including charges associated with any write-down
of goodwill pursuant to FASB ASC 350, charges associated with any write-down
of assets pursuant to FASB ASC 360-10-20 and charges associated with the
grant of stock options) and excluding (A) any non-cash item to the extent
representing an accrual or reserve for potential cash items in any future
period or amortization of a prepaid cash item that was paid in a prior period
and (B) ordinary accruals), (iv) losses from discontinuances, and (v) losses,
charges or expenses from any extraordinary, unusual or non-recurring items,
minus (c) to the extent increasing net income for such period, gains from
discontinuances and any extraordinary, non-recurring or non-cash items,
excluding (i) any non-cash item to the extent it represents the reversal of
an accrual or reserve for potential cash item in any prior period and (ii)
ordinary accruals. If an acquisition or series of related acquisitions, or
disposition or series of related dispositions, of property that constitutes
assets comprising all or substantially all of an operating unit of a business
or constitutes all or substantially all of the common equity of a Person
(each, a "Subject Transaction") shall, (1) for purposes of Section 5.12,
occur during such period, and (2) for purposes of Section 5.08 and the
Pricing Schedule, occur during or subsequent to such period, and on or prior
to the date of any relevant calculation, in each such case, Consolidated
EBITDA shall be calculated with respect to such period on a pro forma basis
(including pro forma adjustments arising out of events which are directly
attributable to a specific transaction, are factually supportable and are
expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation SX promulgated under the Securities
Act of 1933, as amended from time to time, and any successor statute, and as
interpreted by the staff of the Securities and Exchange Commission, which
would include cost savings resulting from head count reduction, closure of
facilities and similar restructuring charges, which pro forma adjustments
shall be certified by the chief financial officer or chief accounting officer
of the Borrower) using the historical financial statements of any business so
acquired or disposed of pursuant to such Subject Transaction and the
consolidated financial statements of the Borrower which shall be reformulated
as if such Subject Transaction had been consummated at the beginning of such
period.
"Consolidated EBITDAR" means, for any period, the sum of (a)
Consolidated EBITDA for such period plus (b) to the extent deducted in
determining such Consolidated EBITDA, Consolidated Rental Expense for such
period.
"Consolidated Fixed Charges" means, for any period, the sum of
Consolidated Interest Expense and Consolidated Rental Expense for such
period.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries (but excluding any
interest expense relating to any Debt that is the subject of a legal or a
covenant defeasance) determined on a consolidated basis for such period, and
adjusted to give pro forma effect to any Subject Transaction that has
occurred during such period as if it had occurred on the first day of such
period.
"Consolidated Net Tangible Assets" means at any date the consolidated
assets of the Borrower and its Consolidated Subsidiaries (as shown on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of a fiscal quarter) after deducting therefrom (a)
all current liabilities (excluding current liabilities which are by their
terms extendible or renewable at the option of the obligor to a time more
than 365 days after the time of determination and excluding current
maturities of long-term debt and current maturities of capitalized lease
obligations), and (b) all goodwill, tradenames, trademarks, patents, debt
discounts and expense and other intangibles, in each case in this clause (b),
net of applicable amortization (all as shown on the most recent consolidated
financial statements of the Borrower and its Consolidated Subsidiaries as of
the end of a fiscal quarter).
"Consolidated Rental Expense" means, for any period, the sum of (without
duplication) (a) rental expense for operating leases of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis for such period
plus (b) rental expense for operating leases of the Borrower or any of its
Consolidated Subsidiaries assigned to a third party and guaranteed by the
Borrower or any of its Consolidated Subsidiaries determined on a consolidated
basis for such period, and adjusted to give pro forma effect to any Subject
Transaction that has occurred during such period as if it had occurred on the
first day of such period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements if such statements were prepared as
of such date.
"Continuing Director" means (a) any individual who is a director of the
Borrower on the Closing Date and (b) any individual who becomes a director of
the Borrower after the Closing Date and is elected or nominated for election
as a director of the Borrower by a majority of the individuals who were
Continuing Directors immediately before such election or nomination.
"Credit Extension" means the making of a Loan or the issuance,
amendment, renewal or extension of a Letter of Credit.
"Credit Party" means the Agent, the Swingline Bank, an LC Issuing Bank
or any Bank, as the case may be.
"Daily Euro-Dollar Rate" means, for any day, the rate per annum
determined by the Agent by dividing (a) the Published Rate by (b) a number
equal to 1.00 minus the Euro-Dollar Reserve Percentage on such day.
"Debt" of any Person means at any date, without duplication:
(a) all obligations of such Person for borrowed money (other than
overdrafts or other similar obligations not outstanding for more than three
Business Days (or in the case of a Foreign Subsidiary, ten Business Days)
arising in the ordinary course of business),
(b) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments,
(c) all obligations of such Person to pay the deferred purchase
price of property or services, except overdrafts or other similar obligations
not outstanding for more than three Business Days (or in the case of a
Foreign Subsidiary, ten Business Days) or trade accounts payable, in each
case, arising in the ordinary course of business,
(d) all obligations of such Person as lessee which are capitalized
in accordance with generally accepted accounting principles,
(e) all obligations of such Person to reimburse banks for drawings
under letters of credit or payments with respect to bankers' acceptances,
which obligations remain unpaid for more than three Business Days (or in the
case of a Foreign Subsidiary, ten Business Days) after they become due, or,
if later, after such Person is notified of the due date thereof,
(f) all obligations of the types referred to in clauses (a) to
(e), inclusive, of this definition which are secured by a Lien on any asset
of such Person, whether or not such obligations are otherwise obligations of
such Person; provided that the amount of Debt attributed, for purposes of
this Agreement, to any such obligation that is not otherwise an obligation of
such Person shall be limited to the lesser of (i) the net book value of the
assets of such Person by which such obligation is secured or (ii) the amount
of such obligation secured thereby (excluding accrued interest for the
current period); and
(g) all Guarantees by such Person of obligations of others of the
types referred to in clauses (a) to (e), inclusive, of this definition (which
Guarantees shall be deemed to constitute Debt in an amount equal to the
lesser of (A) the maximum amount of such Guarantee and (B) the amount of such
obligation of others Guaranteed thereby).
Debt of any Person shall not include any obligation of such Person that is
the subject of a legal or covenant defeasance and is fully secured by cash or
cash equivalents (which cash or cash equivalents shall not be included as an
asset of the Borrower and its Subsidiaries for purposes of this Agreement,
including, without limitation, for purposes of Section 5.08 and Schedule 2).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Bank" means any Bank that (a) has failed to fund any portion
of the Loans, participations with respect to Letters of Credit, or
participations in Swingline Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder
unless a Bank has notified the Agent in writing that such failure to fund is
due to such Bank's good faith determination that a condition precedent to
funding has not been met (and identifying such condition precedent) or unless
such failure has been cured and all interest accruing as a result of such
failure has been fully paid in accordance with the terms hereof or any Bank
that has notified the Agent or an Obligor that it does not intend to satisfy
any such obligation, (b) has otherwise failed to pay over to the Agent or any
other Bank any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute
or unless such failure has been cured and all interest accruing as a result
of such failure has been fully paid in accordance with the terms hereof, (c)
has failed at any time to comply with Section 9.04 with respect to purchasing
participations from other Banks, (d) has since the date of this Agreement
been deemed insolvent by an Official Body or become the subject of a
bankruptcy, receivership, conservatorship or insolvency proceeding or the
assets or management of which have been taken over by any Official Body or
(e) is controlled by or is a Subsidiary of a Person that has been deemed
insolvent by an Official Body or become the subject of a bankruptcy,
receivership, conservatorship or insolvency proceeding or the assets or
management of which have been taken over by any Official Body.
"Documentary Letter of Credit" means a Letter of Credit issued in
connection with the purchase of goods or services by the Borrower or one of
its Subsidiaries in the ordinary course of its business.
"Dollars" and "$" means the lawful currency of the United States.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such
other office as such Bank may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Agent.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower and all other corporations, trades or
businesses (whether or not incorporated) to the extent collectively treated
as a single employer under Section 414 of the Internal Revenue Code.
"ESOP Trust" has the meaning set fort in Section 5.07.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan which bears interest based
upon a Euro-Dollar Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Margin" means the marginal rate per annum intended to be
added to the Euro-Dollar Rate for purposes of calculating interest on Euro-
Dollar Loans, determined in accordance with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07(b) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Amount" has the meaning set forth in Section 2.01(b).
"Executive Order No. 13224" means Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, as the same has been or may
hereafter be renewed, extended or replaced.
"Existing Credit Agreement" means the Credit Agreement dated as of March
11, 2005 (as amended), among the Borrower (then known as CNF, Inc.), the
banks party thereto, PNC, as Syndication Agent, LaSalle Bank National
Association, U.S. Bank National Association, Harris Trust and Savings Bank,
and BNP Paribas, as Co-Documentation Agents, and The Bank of New York, as
Agent.
"Existing Letters of Credit" means the letters of credit issued on or
before the Closing Date and listed in Exhibit D hereto.
"Facility Fee Rate" has the meaning set forth in Section 2.08(a).
"Federal Funds Effective Rate" means, for any day, the rate per annum
(based on a year of 360 days and the actual days elapsed, and rounded upward,
if necessary, 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 the previous day, as
published by the Federal Reserve Bank of New York on such day, provided that
(a) if such day is not a Business Day, the Federal Funds Effective Rate for
such day shall be such rate on such transactions as so published on the next
preceding Business Day, and (b) if no such rate is so published by the
Federal Reserve Bank (or its successor) on any day, the Federal Funds
Effective Rate for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was published.
"Federal Funds Open Rate" for any day means the rate per annum (based on
a year of 360 days and actual days elapsed) which is the daily federal funds
open rate as quoted by ICAP North America, Inc. (or any successor) as set
forth on the Bloomberg Screen BTMM for that day opposite the caption "OPEN"
(or on such other substitute Bloomberg Screen that displays such rate), or if
such rate ceases to be quoted on the Bloomberg Screen BTMM, as set forth on
such other recognized electronic source used for the purpose of displaying
such rate as reasonably selected by the Agent consistent with market practice
(an "Alternate Source") (or if such rate for such day does not appear on the
Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source,
or if there shall at any time, for any reason, no longer exist a Bloomberg
Screen BTMM (or any substitute screen) or any Alternate Source, a comparable
replacement rate reasonably determined by the Agent at such time in
consultation with the Borrower and in accordance with customary market
practice (which determination shall be conclusive absent manifest error);
provided however, that if such day is not a Business Day, the Federal Funds
Open Rate for such day shall be the "open" rate on the immediately preceding
Business Day. If and when the Federal Funds Open Rate changes, the rate of
interest with respect to any Loan to which the Federal Funds Open Rate
applies will change automatically without notice to the Borrower, effective
on the date of any such change.
"Financing Documents" means this Agreement, the Subsidiary Guaranty
Agreement and the Notes, if any.
"Fitch" means Fitch Ratings, a majority-owned Subsidiary of Fimalac,
S.A., and its successors, or if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "Fitch" shall refer to any other nationally recognized securities
rating agency designated by the Required Banks, with the approval of the
Borrower, by notice to the Agent and the Borrower.
"Foreign Bank" has the meaning set forth in Section 8.04(d).
"Foreign Subsidiary" means any Subsidiary which is (a) organized under
the laws of a jurisdiction other than the United States or any state thereof
or the District of Columbia, (b) an entity owned by an entity described in
clause (a) that is not classified as a corporation for United States federal
income tax purposes, or (c) an entity that has no material assets other than
(directly or indirectly through one or more Subsidiaries) equity interests in
one or more entities described in clause (a).
"Fund" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards Board
or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination.
"Group" or "Group of Loans" means at any time a group of Loans
consisting of (a) all Committed Loans which are Base Rate Loans at such time
or (b) all Committed Loans which are Euro-Dollar Loans of the same type
having the same Interest Period at such time; provided that, if a Committed
Loan of any particular Bank is converted to or made as a Base Rate Loan
pursuant to Section 8.02 or Section 8.04, such Loan shall be included in the
same Group or Groups of Loans from time to time as it would have been in if
it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered
into for the purpose of assuring in any other manner the obligee of such Debt
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business. The term Guarantee used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Increased Cost Bank" has the meaning set forth in Section 8.06.
"Increase Date" has the meaning set forth in Section 2.01(b).
"Indemnified Liabilities" has the meaning set forth in Section 9.03(b).
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Period" means with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing therefor specified in the
applicable Notice of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable notice; provided
that:
(a) any Interest Period which would otherwise end on a day which
is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day, and
(b) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall, subject
to clause (c) below, end on the last Business Day of a calendar month, and
(c) no Interest Period shall be available if it would end after
the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LC Commitment" means, with respect to each LC Issuing Bank, the
commitment of such LC Issuing Bank to issue Letters of Credit hereunder. The
amount of each LC Issuing Bank's LC Commitment is set forth on Schedule 1B
attached hereto, as such Schedule 1B may be adjusted from time to time by the
Agent to reflect the increase, decrease, addition or deletion of an LC
Issuing Bank's LC Commitment, as agreed to pursuant to a separate agreement
in writing between the Borrower and such LC Issuing Bank, such adjustment to
Schedule 1B to be effective upon receipt of written notice to the Agent of
such agreement from the Borrower and such LC Issuing Bank, provided that any
determination by an LC Issuing Bank to increase its LC Commitment shall be in
the sole discretion of such LC Issuing Bank.
"LC Disbursement" means a payment made by an LC Issuing Bank under a
Letter of Credit.
"LC Issuing Bank Exposure" means, at any time, with respect to any LC
Issuing Bank, the sum, without duplication, of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time issued by such LC
Issuing Bank plus (b) the aggregate amount of all LC Disbursements made by
such LC Issuing Bank that have not yet been reimbursed by the Borrower at
such time.
"LC Issuing Banks" means (a) each Bank set forth on Schedule 1B attached
hereto, as such Schedule 1B may be adjusted from time to time by the Agent to
reflect the addition or deletion of Banks as LC Issuing Banks, as agreed to
pursuant to a separate agreement in writing between the Borrower and the
applicable Bank, such adjustment to Schedule 1B to be effective upon receipt
of written notice to the Agent of such agreement from the Borrower and such
Bank, provided that any determination by a Bank to become an LC Issuing Bank
shall be in the sole discretion of such Bank, and provided further that the
Borrower, in its sole discretion, may by written notice to the Agent delete
any Bank as an LC Issuing Bank at any time when such Bank has no Letters of
Credit outstanding, and (b) with respect to the Existing Letters of Credit,
each of the Banks listed on Exhibit D, in each case in their capacities as
issuers of Letters of Credit. Any LC Issuing Bank may, in its discretion
with the consent of the Borrower (such consent not to be unreasonably
withheld), arrange for one or more Letters of Credit to be issued by
affiliates of such LC Issuing Bank, in which case the term "LC Issuing Bank"
shall include any such affiliate with respect to Letters of Credit issued by
such affiliate.
"LC Liabilities" means, at any time, the sum, without duplication, of
(a) the aggregate amount available for drawing under all Letters of Credit
outstanding at such time plus (b) the aggregate unpaid amount at such time of
all Reimbursement Obligations in respect of previous drawings made under
Letters of Credit.
"Letter of Credit" means (a) any Existing Letter of Credit and (b) any
Documentary Letter of Credit or any Stand-by Letter of Credit (including
without limitation a Workers' Compensation Letter of Credit) denominated in
Dollars and issued hereunder on or after the Closing Date.
"Lien" means with respect to any asset (including without limitation
any account receivable), any mortgage, lien, pledge, charge or security
interest of any kind, or any encumbrance constituting a security interest, or
any other type of preferential arrangement that has the practical effect of
creating a security interest, in respect of such asset. For the purposes of
this Agreement, the Borrower or any Subsidiary shall be deemed (a) to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset and (b) not
to own subject to a Lien any asset which it leases under a lease that is
classified as an operating lease under generally accepted accounting
principles.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Swingline Loan
and "Loans" means Base Rate Loans, Euro-Dollar Loans and Swingline Loans or
any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
"Material Debt" means Debt (other than the Loans) of the Borrower
and/or one or more of its Subsidiaries in an aggregate outstanding principal
amount exceeding $75,000,000.00. For purposes of this definition, if the
Debt arising from any single transaction has an outstanding principal amount
less than $1,000,000.00, it shall be excluded, but Debts arising from one or
more related or unrelated transactions shall be aggregated if the Debt
arising from each such transaction has an outstanding principal amount of
$1,000,000.00 or more.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $75,000,000.00.
"Material Subsidiary" means any Subsidiary of the Borrower (i) which has
total assets in excess of $100,000,000 or (ii) Consolidated EBITDA (with
references in the definition of Consolidated EBITDA to the Borrower or
Consolidated Subsidiaries being deemed to be such Subsidiary and its
Subsidiaries for purposes of this clause (ii)) in excess of $50,000,000, all
calculated at the date of the most recent financial statement delivered to
the Agent pursuant to Section 5.01(a) or (b) and in the case of clause (ii),
based on the most recent period of four consecutive fiscal quarters, ending
with the last fiscal quarter covered by such financial statements.
"Minimum Commitment Amount" has the meaning set forth in Section
2.01(a).
"Minimum Swingline Amount" has the meaning set forth in Section 2.01(c).
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 400l(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group
during such five year period.
"New Commitment Agreement" means a new commitment agreement in the form
of Exhibit E executed pursuant to Section 2.01(b)(iii).
"Non-Consenting Bank" has the meaning set forth in Section 8.06.
"Non-Extension Date" has the meaning set forth in Section 2.16(b)(ii).
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay
the Loans, and "Note" means any one of such promissory notes issued
hereunder, and, as appropriate, the Swingline Note.
"Notice of Borrowing" means a Notice of Committed Borrowing or a Notice
of Swingline Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in Section
2.02(a).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10(a)(ii).
"Notice of Swingline Borrowing" has the meaning set forth in Section
2.02(b).
"Obligor" means each of the Borrower and the Subsidiary Guarantors, and
"Obligors" means all of the foregoing.
"Other Taxes" has the meaning set forth in Section 8.04(b).
"Official Body" means the government of the United States of America or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Outstanding Committed Exposure" means, as to any Bank at any time, an
amount equal to the sum of (a) the aggregate principal amount of its
Committed Loans outstanding at such time, plus (b) its participation interest
in the LC Liabilities at such time, plus (c) its Percentage at such time of
the outstanding principal balance of the Swingline Loans.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"Patriot Act" has the meaning set forth in Section 9.13.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Bank, the percentage that such
Bank's Commitment constitutes of the aggregate amount of the Commitments of
all Banks.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"PNC" means PNC Bank, National Association and its successors.
"Pricing Schedule" means the Pricing Schedule attached hereto as
Schedule 2.
"Prime Rate" means, for any day, the interest rate per annum announced
from time to time by PNC at its Principal Office as its then prime rate which
rate may not be the lowest or most favorable rate then being charged
commercial borrowers or others by PNC. Any change in the Prime Rate shall
take effect at the opening of business on the day such change is announced.
"Principal Office" means the main banking office of PNC in Pittsburgh,
Pennsylvania.
"Published Rate" means the one month rate of interest quoted on the
Reuters Screen LIBOR0I Page (or such other page as may replace such page for
the purpose of displaying the rates at which dollar deposits are offered by
leading banks in the London interbank deposit market).
"Purchasing Bank" has the meaning set forth in Section 8.06.
"Quarterly Dates" means each March 31, June 30, September 30 and
December 31.
"Receivables Financing" means any program for the transfer of accounts
receivable (and related assets and rights) without recourse (other than
customary limited recourse including customary representations, warranties,
covenants and indemnities entered into in connection with receivables
financings) by the Borrower or any of its Subsidiaries to any SP Sub.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Register" has the meaning set forth in Section 9.06.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.16 to reimburse
an LC Issuing Bank for amounts paid by such LC Issuing Bank in respect of any
drawing under any Letter of Credit.
"Required Banks" means at any time Banks (not including Defaulting
Banks) having more than 50% of the aggregate amount of the Commitments of
non-Defaulting Banks or, if the Commitments shall have been terminated,
having more than 50% of the Aggregate Usage of non-Defaulting Banks.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc., or if Standard & Poor's Ratings Group shall no longer
perform the functions of a securities rating agency, "S&P" shall be deemed to
refer to any other nationally recognized securities rating agency designated
by the Required Banks, with the approval of the Borrower, by notice to the
Agent and the Borrower.
"Selling Bank" has the meaning set forth in Section 8.06.
"Significant Subsidiary" means any Subsidiary of the Borrower which has
total assets or revenues in excess of 10% of the consolidated total assets or
consolidated revenues of the Borrower and its Consolidated Subsidiaries, all
calculated at the date of the most recent financial statements delivered to
the Agent pursuant to Section 5.01 or, in the case of revenues, for the
twelve calendar months then ended.
"Subject Transaction" has the meaning set forth in the definition of
"Consolidated EBITDA".
"SP Sub" means a wholly owned Subsidiary of the Borrower (1) that does
not engage in any material activities other than Receivables Financings and
any activity necessary, incidental or related thereto and (2) no portion of
the Debt of which is Guaranteed by the Borrower or any Subsidiary Guarantor,
other than pursuant to customary representations, warranties, covenants and
indemnities entered into in connection with a Receivables Financing.
"Stand-by LC Fee Rate" has the meaning set forth in Section 2.16(j).
"Stand-by Letter of Credit" means a Letter of Credit other than a
Documentary Letter of Credit.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect or appoint
a majority of the Person or Persons (whether directors, managers, trustees or
other Persons performing similar functions) having the power to direct or
cause the direction of the management and policies of such corporation or
other entity is at the time owned or controlled, directly or indirectly, by
the Borrower or one or more of the Borrower's other Subsidiaries or a
combination thereof. References to "Subsidiary" shall, unless otherwise
indicated, mean a Subsidiary of the Borrower.
"Subsidiary Guarantors" means, at any date, (i) Con-way Freight Inc.,
(ii) Menlo Worldwide, LLC, (iii) Transportation Resources, Inc., (iv) Con-way
Truckload Inc., (v) Menlo Logistics, Inc. and (vi) each other Subsidiary of
the Borrower which is a party to the Subsidiary Guaranty Agreement as of such
date, but excluding Con-Way Insurance Company Limited and any SP Sub;
provided, however, that no Foreign Subsidiary shall be, or be required to
continue to be, a Subsidiary Guarantor.
"Subsidiary Guaranty Agreement" means a Subsidiary Guaranty Agreement
among the Borrower, the Subsidiary Guarantors and the Agent, as executed and
delivered pursuant to Section 3.01(c) and as the same may be amended from
time to time in accordance with the terms thereof.
"Swingline Bank" means PNC in its capacity as such and any successors
or assigns in such capacity.
"Swingline Commitment Amount" means Fifty Million Dollars
($50,000,000.00), as such amount may be reduced from time to time pursuant to
Section 2.09 or Section 2.11.
"Swingline Loans" has the meaning set forth in Section 2.01(c).
"Swingline Note" shall mean the Swingline Note of the Borrower in the
form of Exhibit F evidencing the obligation of the Borrower to repay the
Swingline Loans.
"Target Increase" has the meaning set forth in Section 2.01(b).
"Taxes" has the meaning set forth in Section 8.04(a).
"Termination Date" means November 4, 2014.
"Third Party Affiliate" means (a) any Person or any group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended) that directly, or indirectly through one or more
intermediaries, controls the Borrower (a "Controlling Person") or (b) any
Person (other than the Borrower or a Subsidiary) which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair
market value of all Plan assets allocable to such liabilities under Title IV
of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"Unused Commitments" means, at any time, the difference between the
aggregate Commitments of all Banks on such date and the Aggregate Usage on
such day before giving effect to any new Credit Extension.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly (through
Subsidiaries) owned by the Borrower.
"Workers' Compensation Letter of Credit" means any letter of credit
which is used to secure obligations of the Borrower or its Subsidiaries under
workers' compensation or similar laws.
Section . Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared in accordance with generally accepted accounting principles as in
effect from time to time, applied on a basis consistent (except for changes
agreed to by the Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Agent; provided that,
notwithstanding the foregoing, no change in GAAP (including any change to the
rules with respect to lease accounting) after the Closing Date will affect
the computation of any financial ratio or requirement set forth in any Loan
Document (which will be computed based on GAAP as in effect on the date
hereof); provided that, in the event of any such change that would affect
such computations, either the Borrower or the Required Banks may request that
the Agent and the Borrower negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Banks and the Borrower); and
provided further that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein
and (ii) the Borrower shall provide to the Agent and the Banks financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of
such ratio or requirement made before and after giving effect to such change
in GAAP.
Section . Types of Borrowings.
The term "Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Section 2.01 or Section 2.03 on
the same date, all of which Loans are of the same type (subject to Article 8)
and, except in the case of Base Rate Loans, have the same Interest Period or
initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01(a) in which all Banks participate in proportion
to their Commitments, and a "Swingline Borrowing" is a Borrowing under
Section 2.01(c)).
ARTICLE
THE CREDITS
Section . Commitments to Lend.
(a) Committed Loans. Each Bank (severally and not jointly) agrees, on
the terms and conditions set forth in this Agreement, to make revolving loans
in Dollars to the Borrower pursuant to this Section from time to time prior
to the Termination Date; provided that, immediately after each such Committed
Loan is made, the Outstanding Committed Exposure of such Bank would not
exceed its Commitment and the Aggregate Usage would not exceed the aggregate
Commitments (including after giving effect to any repayments of Reimbursement
Obligations or Swingline Loans with such Loans). Each Borrowing pursuant to
this Section 2.01(a) shall be in an aggregate principal amount equal to the
lesser (such lesser amount, the "Minimum Committed Amount") of (i)
$5,000,000.00 or any larger integral multiple of $1,000,000.00 and (ii) the
amount of the Unused Commitments, and shall be made from the several Banks
ratably in accordance with their respective Percentages. Within the
foregoing limits, the Borrower may borrow under this Section 2.01(a), prepay
Committed Loans to the extent permitted by Section 2.12 and reborrow under
this Section 2.01(a) at any time prior to the Termination Date.
(b) Increase in Commitments for Committed Loans. The Borrower shall
have the right at any time after the Closing Date to increase the aggregate
amount of Commitments hereunder by up to $75,000,000.00 (up to
$400,000,000.00 in total aggregate Commitments) without the consent of the
Banks, subject however to the satisfaction of each of the following terms and
conditions:
() concurrently with the Borrower's request for such increase
hereunder, the Borrower shall deliver to the Agent, a certificate of the
chief financial officer or the chief accounting officer of the Borrower
certifying to the Agents and the Bank that no Default has occurred and is
continuing;
() such increase shall be allocated in the following order:
() first, to the existing Banks consenting to an increase
in the amount of their additional Commitment (each a "Consenting Bank");
provided that (1) on or before the tenth Business Day following notification
of a requested increase in the aggregate Commitments, each Bank shall notify
the Borrower of the desired increase (but not in excess of the aggregate
amount requested by the Borrower), if any, in its Commitment (with respect to
each Bank, its "Target Increase"), (2) if the aggregate Target Increases of
all Consenting Banks shall exceed the increase in the aggregate Commitments
requested by the Borrower, the Commitments of each Consenting Bank shall be
increased on a pro rata basis according to the existing Percentage of such
Consenting Bank, provided, further, that in the event any Consenting Bank's
Commitment would, but for the terms of this proviso, be increased pursuant to
this clause (2) by an amount in excess of such Consenting Bank's Target
Increase, such Consenting Bank's Commitment shall instead be increased by its
Target Increase and such excess (the "Excess Amount") together with the
Excess Amount, if any, of each other Consenting Bank, shall be allocated
among the remaining Consenting Banks in accordance with this clause (2) until
either the increase in the aggregate Commitments requested by the Borrower
have been fully allocated or the amount of such increase allocated to each
Consenting Bank equals its Target Increase; and
() second, to any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) reasonably acceptable to the Agent, each
LC Issuing Bank, the Swingline Bank and the Borrower;
() each Person providing a new Commitment shall execute a New
Commitment Agreement substantially in the form of Exhibit E hereto and, upon
such execution and the satisfaction of the other terms and conditions of this
Section 2.01(b), such Person shall thereupon become a party hereto and have
the rights and obligations of a Bank under this Agreement as more
specifically provided in the New Commitment Agreement; and
() the Agent shall promptly notify each Bank, the Swingline Bank
and each LC Issuing Bank of (A) the new aggregate Commitments and (B) each
Bank's Percentage, in each case after giving effect to the one-time increase
in Commitments referred to in this Section 2.01(b).
On the date (which date shall be a Business Day) on which the increase
in the aggregate Commitments occurs (the "Increase Date") (1) the Agent and
the Banks shall make adjustments among the Banks with respect to the
Committed Loans outstanding hereunder and amounts of principal, interest,
fees and other amounts paid or payable with respect thereto (and
participations in Letters of Credit and Swingline Loans) as shall be
necessary in order to reallocate among the Banks such outstanding amounts
(and participations in Letters of Credit and Swingline Loans) based on the
new Percentages and to otherwise carry out fully the terms of this Section
2.01(b), and (2) in connection with each transfer of all or any portion of a
Committed Loan by a Bank in connection with such adjustments, such Bank may
in its sole discretion treat such transfer as a prepayment for purposes of
Section 2.14 and the Borrower shall pay to such Bank the amount, if any,
owing to such Bank pursuant to such Section 2.14 as a result thereof. The
Borrower agrees that, in connection with any such increase in the aggregate
Commitments, it will promptly provide a Note to each Bank providing a new
Commitment, if such Bank has requested a Note in accordance with Section
2.05(b), substantially in the form of the Note attached hereto as Exhibit A.
Each of the parties hereto acknowledges and agrees that no Bank shall be
obligated to increase its Commitment pursuant to the terms of this Section
2.01(b). Each Bank with Committed Loans outstanding immediately prior to the
Increase Date shall, to the extent deemed necessary by the Agent and the
Borrower to appropriately reallocate the aggregate Commitments and give
effect to the new Commitments, sell a portion of its Loans and participation
interests in any unpaid Reimbursement Obligations and Swingline Loans to the
Banks providing new Commitments hereunder so that, after giving effect
thereto, each Bank's percentage of outstanding Loans and participations shall
equal its percentage of outstanding Commitments.
(c) Swingline Loans. The Swingline Bank, in its individual capacity,
agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans ("Swingline Loans") in Dollars to the Borrower pursuant to
this Section 2.01(c) from time to time prior to the Termination Date;
provided that, immediately after each such Swingline Loan is made (i) the
aggregate outstanding principal amount of all Swingline Loans shall not
exceed the Swingline Commitment Amount, and (ii) the Aggregate Usage would
not exceed the aggregate Commitments. The Agent will, upon request of the
Swingline Bank, confirm the Aggregate Usage. Each Swingline Loan shall be in
a minimum principal amount equal to the lesser (such lesser amount, "Minimum
Swingline Amount") of (A) $1,000,000.00 or any larger integral multiple of
$1,000,000.00 and (B) the unused Swingline Commitment Amount. Within the
foregoing limits, the Borrower may borrow under this Section, prepay
Swingline Loans to the extent permitted by Section 2.12 and reborrow under
this Section 2.01(c) at any time prior to the Termination Date.
Notwithstanding anything to the contrary contained in this Agreement, the
Swingline Bank shall not make a Swingline Loan if, no later than one Business
Day prior to the date of Borrowing with respect to such Swingline Loan, it
shall have received written notice from any Bank that the conditions set
forth in Article 3 with respect thereto have not been satisfied.
Section . Notice of Committed Borrowing.
() Committed Loans. The Borrower shall give the Agent notice (a
"Notice of Committed Borrowing") not later than (i) 12:00 Noon (Pittsburgh
time) on the Business Day before each Base Rate Borrowing (or the same
Business Day, as the Agent may agree, provided that if any Bank is a Foreign
Bank that does not have a lending office in the United States, the consent of
such Bank shall be required for such shorter notice) and (ii) 1:00 P.M.
(Pittsburgh time) on the third Business Day before each Euro-Dollar
Borrowing, specifying:
(A) the date of such Borrowing, which shall be a Business Day,
(B) the aggregate amount of such Borrowing,
(C) whether the Loans comprising such Borrowing are to bear
interest based upon the Base Rate or based upon a Euro-Dollar Rate, and
(D) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period;
provided that the Borrower may not deliver a Notice of Committed Borrowing if
after giving effect to the requested Borrowing there would be more than eight
Committed Euro-Dollar Borrowings outstanding.
() Swingline Loans. The Borrower shall give the Swingline Bank
(with a copy to the Agent) notice (a "Notice of Swingline Borrowing") not
later than 12:00 Noon (New York City time) on the date of each Swingline
Borrowing, specifying:
() the date of such Borrowing, which shall be a Business Day, and
() the aggregate amount of such Borrowing.
Section . Intentionally Omitted.
Section . Notice to Banks; Funding of Loans; Additional Provisions
Relating to Swingline Loans.
() Upon receipt of a Notice of Committed Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's share of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable
by the Borrower. Upon receipt of a Notice of Swingline Borrowing by the
Swingline Bank, such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
() Not later than (i) 12:00 Noon (New York City time) on the date of
each Borrowing other than a Base Rate Borrowing and (ii) 1:00 P.M. (New York
City time) on the date of each Base Rate Borrowing, each Bank participating
therein shall make available its share of such Borrowing, in Federal or other
funds immediately available in Pittsburgh, Pennsylvania, to the Agent at its
Principal Office. Unless the Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Agent will, promptly after
receipt thereof, make the funds so received from the Banks available to the
Borrower at the Agent's aforesaid address.
() Unless the Agent shall have received notice from a Bank prior to
the date of any Borrowing that such Bank will not make available to the Agent
such Bank's share of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such Borrowing in
accordance with subsection (b) of this Section 2.04 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent, within one Business Day after demand, such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Effective Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such
Bank, the Federal Funds Effective Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
() No Bank shall be responsible for the failure or delay by any other
Bank in its obligation to make its ratable share of a Borrowing hereunder;
provided, however, that the failure of any Bank to fulfill its obligations
hereunder shall not relieve any other Bank of its obligations hereunder.
() Except as otherwise expressly provided in this Agreement, if any
Credit Party shall fail to remit to any other Credit Party an amount payable
by such first Credit Party to such other Credit Party pursuant to this
Agreement on the date when such amount is due, such payments shall be made by
such first Credit Party together with interest thereon for each date from the
date such amount is due until the date such amount is paid to such other
Credit Party at a rate per annum equal to the Federal Funds Effective Rate.
() The Swingline Bank may, at any time, in its sole discretion, by
written notice to the Borrower and the Banks, demand repayment of its
Swingline Loans by way of a Committed Loan, in which case the Borrower shall
be deemed to have requested a Committed Loan comprised solely of Base Rate
Loans in the amount of such Swingline Loans; provided, however, that any such
demand shall be deemed to have been given one Business Day prior to (a) the
Termination Date, and (b) upon acceleration of the Loans and other
obligations under this Agreement pursuant to Section 6.01. Each Bank hereby
irrevocably agrees to make its pro rata share (based on its Percentage) of
each such Committed Loan in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of such
Borrowing may not comply with the minimum amount for advances of Committed
Loans otherwise required hereunder, (ii) whether or not any conditions
specified in Section 3.02 are then satisfied, (iii) whether a Default or an
Event of Default then exists, (iv) failure of any such request or deemed
request for a Committed Loan to be made by the time otherwise required
hereunder, (v) whether the date of such Borrowing is a date on which
Committed Loans are otherwise permitted to be made hereunder, (vi) any
termination of the Commitments immediately prior to or contemporaneously with
such Borrowing, or (vii) any other reason whatsoever. In the event that any
Committed Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under federal bankruptcy laws with respect to the Borrower), or if
the Swingline Bank otherwise demands the purchase of participations in its
Swingline Loans, then each Bank hereby agrees that it shall forthwith
purchase (as of the date such Borrowing would otherwise have occurred or the
date demanded by the Swingline Bank, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase) from the
Swingline Bank a participation interest in the outstanding Swingline Loans in
such amount as shall be necessary to cause each Bank to share in such
Swingline Loans ratably based upon its Percentage (determined immediately
before giving effect to any expiration or other termination of the aggregate
Commitments), provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Bank until the date as of which
such participation interest is funded and (B) at the time any purchase of
such participation interest pursuant to this sentence is actually made, the
purchasing Bank shall be required to pay to the Swingline Bank, to the extent
not paid to the Swingline Bank by the Borrower in accordance with the terms
of Section 2.07, interest on the principal amount of participation interests
purchased for each day from and including the day upon which such Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation interests, at a rate equal to the Federal Funds Effective Rate.
Section . Notes; Loan Accounts; Records.
() The Loans of each Bank shall be evidenced by one or more accounts
maintained by such Bank on behalf of its Applicable Lending Office in
accordance with paragraph (d) below.
() The Borrower hereby agrees that if any Bank requests a promissory
note to evidence the Loans of such Bank, the Borrower shall promptly execute
and deliver to such Bank a promissory note substantially in the form of
Exhibit A attached hereto, payable to the order of such Bank. In addition,
each Bank may, by notice to the Borrower and the Agent, request that its
Loans of a particular type be evidenced by a separate Note in an amount equal
to the aggregate unpaid principal amount of such Loans. Each such Note shall
be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the
relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
() Promptly after receipt of any Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to such Bank.
() () Each Bank shall maintain an account or accounts evidencing
each Loan made by such Bank to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Bank from time to
time under this Agreement. Each Bank will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
() The Agent shall maintain the Register pursuant to Section 9.06
and a subaccount for each Bank, in which Register and subaccounts (taken
together) shall be recorded (A) the amount, type and Interest Period, if any,
of each such Loan hereunder, (B) the amount of any principal or interest due
and payable or to become due and payable to each Bank hereunder and (C) the
amount of any sum received by the Agent hereunder from or for the account of
the Borrower and each Bank's share thereof. The Agent will make reasonable
efforts to maintain the accuracy of the subaccounts referred to in the
preceding sentence and to promptly update such subaccounts from time to time,
as necessary.
() The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (ii) above (and, if consistent with the
entries of the Agent, subsection (i) above) shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Bank or the Agent to
maintain any such account, such Register or such subaccount, as applicable,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay the Loans and other amounts owing hereunder to such Bank.
(e) The obligation of the Borrower to repay the unpaid principal
amount of the Swingline Loans made to it by PNC Bank together with interest
thereon shall be evidenced by a demand promissory note of the Borrower in
substantially the form attached hereto as Exhibit F payable to the order of
PNC Bank in a face amount equal to the Swingline Commitment Amount.
Section . Maturity of Loans.
() Each Committed Loan shall mature, and the principal amount thereof
shall be due and payable (together with accrued and unpaid interest thereon),
on the Termination Date.
() Each Swingline Loan shall mature, and the principal amount thereof
shall be due and payable (together with accrued and unpaid interest thereon),
on demand by PNC (but no later than the Termination Date); provided, that if
any Bank defaults in its obligation to fund Committed Loans pursuant to
Section 2.04(f), the Borrower shall have three Business Days to make such
payment following demand.
Section . Interest Rates.
() Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the sum of the Base Rate Margin
for such day plus the Base Rate for such day. Such interest shall be payable
quarterly in arrears on each Quarterly Date. Any overdue principal of or
interest on any Base Rate Loan (and any overdue fees) shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
() Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three
months, at the end of each three month interval after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward,
if necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the rate per annum (rounded upward, if necessary, to the next higher
1/100th of 1%) in each case determined by the Agent to be equal to the rate
which appears on the Bloomberg Page BBAM1 (or on such other substitute
Bloomberg page that displays rates at which US Dollar deposits are offered by
leading banks in the London interbank deposit market), or, if the foregoing
rate is unavailable or undeterminable, the rate which is quoted by another
source reasonably selected by the Agent which has been approved by the
British Bankers' Association as an authorized information vendor for the
purpose of displaying rates at which US Dollar deposits are offered by
leading banks in the London interbank deposit market (for purposes of this
definition, an "Alternate Source"), at approximately 11:00 a.m., London time,
two (2) Business Days prior to the commencement of such Interest Period as
the London interbank offered rate for Dollars for an amount comparable to the
Loan amount to which the subject Interest Period is to apply, and having a
borrowing date and a maturity comparable to such Interest Period (or if there
shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or
any substitute page) or any Alternate Source, a comparable replacement source
for determining rates at which US Dollar deposits are offered by leading
banks in the London interbank deposit market, as reasonably determined by the
Agent at such time (which determination shall be conclusive absent manifest
error)).
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any marginal, special,
emergency or supplemental reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities". The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
() Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the higher of (i) the rate such
Euro-Dollar Loan is then earning interest if the Interest Period applicable
thereto has not expired, and (ii) the Base Rate for such day.
() Each Swingline Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the Base Rate for such day. Such
interest shall be payable quarterly in arrears on each Quarterly Date. Any
overdue principal of or interest on any Swingline Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
() The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
The Agent shall, at the request of the Borrower, deliver to the Borrower, a
statement showing the quotations used by the Agent in determining any
interest rate pursuant to this Section 2.07.
Section . Fees.
() Facility Fee. The Borrower shall pay to the Agent for the
account of each Bank a facility fee for each day at the "Facility Fee Rate"
for such day (determined in accordance with the Pricing Schedule). The
Facility Fee Rate shall be calculated on a 360 day basis, but charged for the
actual number of days elapsed. Such facility fee shall accrue for each day
(i) from and including the Closing Date to but excluding the Termination Date
(or earlier date of termination of the Commitments in their entirety) on the
amount of such Bank's Commitment (whether used or unused) on such day and
(ii) after the Termination Date (or earlier date of termination of the
Commitments in their entirety), on such Bank's share of the Aggregate Usage.
Fees accrued under this Section shall be payable quarterly in arrears (i) on
each Quarterly Date, (ii) on the date on which the Commitments terminate in
their entirety, (iii) following the Termination Date, on demand, and (iv) on
each optional reduction of the Commitments, to the extent thereof.
() Agent's Fees. The Borrower shall pay to the Agent for its own
account fees in the amounts and at the times previously agreed upon between
the Borrower and the Agent.
Section . Optional Termination or Reduction of Commitments.
The Borrower may, upon at least three Business Days' notice to the Agent
(or such shorter period as the Agent may agree), (i) terminate the
Commitments at any time, if no Loans or LC Liabilities are outstanding at
such time, (ii) ratably reduce from time to time by an aggregate amount of
$5,000,000.00 or any larger integral multiple of $1,000,000.00, the aggregate
amount of the Commitments in excess of the Aggregate Usage or (iii) reduce
from time to time by an aggregate amount of $5,000,000.00 or any larger
multiple of $1,000,000.00, the Swingline Commitment Amount in excess of the
outstanding amount of the Swingline Loans.
Section . Method of Electing Interest Rates.
(a) The Loans included in each Committed Borrowing shall bear
interest initially based on the Euro-Dollar Rate or the Base Rate, as
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue
the type of interest rate borne by each Group of Loans (subject in each case
to the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to Euro-Dollar Loans as of any Business Day, and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable to
such Loans.
provided that (A) no Loan may be converted into a Euro-Dollar Loan when any
Event of Default has occurred and is continuing and the Agent has or the
Required Banks have determined that such a conversion is not appropriate, (B)
no Loan may be converted into a Euro-Dollar Loan after the date that is one
month prior to the Termination Date, and (C) no Swingline Loan may be
converted into a Euro-Dollar Loan. Each such election shall be made by
delivering a notice (a "Notice of Interest Rate Election") to the Agent at
least three Business Days before the conversion or continuation selected in
such notice is to be effective. A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the aggregate principal amount of
the relevant Group of Loans; provided that (1) such portion is allocated
ratably among the Loans comprising such Group and (2) the portion to which
such Notice applies, and the remaining portion to which it does not apply are
each $10,000,000.00 or any larger multiple of $1,000,000.00.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selection in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the additional Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election
shall comply with the provisions of the definition of Interest Period.
(c) Upon receipt of Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify
each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If the Borrower fails to deliver a timely Notice
of Interest Rate Election to the Agent for any Group of Euro-Dollar Rate
Loans, such Loans shall be converted to Base Rate Loans on the last day of
the then current Interest Period applicable thereto.
Section . Mandatory Termination of Commitments.
Unless previously terminated, the Commitments shall terminate on the
Termination Date, and all Loans and LC Liabilities (whether or not
contingent) then outstanding (together with accrued interest thereon and all
other sums owing hereunder or under the Notes or the Subsidiary Guaranty)
shall be due and payable on such date.
Section . Optional Payments.
() The Borrower may (i) upon the same Business Day's notice to the
Agent, prepay any Base Rate Loans in whole at any time, or from time to time
in part, in amounts aggregating $500,000.00 or any larger integral multiple
of $100,000.00, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment, (ii) upon at least three
Business Days' notice to the Agent, prepay any Group of Euro-Dollar Loans, in
whole at any time, or from time to time in part, in amounts aggregating
$5,000,000.00 or any larger integral multiple of $1,000,000.00, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment, or (iii) at any time prepay any Swingline Loans in whole
or if in part, in minimum amounts of $100,000.00 or any larger integral
multiples of $100,000.00. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such Group or
Borrowing. In connection with any such prepayment of any Euro-Dollar Loan,
the Borrower shall comply with the provisions of Section 2.14.
() Upon receipt of a notice of prepayment of Committed Loans (other
than Swingline Loans) pursuant to this Section 2.12, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share (if
any) of such prepayment and such notice shall not thereafter be revocable by
the Borrower.
Section . General Provisions as to Payment.
() The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, and (except to the extent otherwise
provided in Section 2.16) the Reimbursement Obligations, not later than
1:00 P.M. (Pittsburgh time) on the date when due, in Federal or other funds
immediately available in Pittsburgh, Pennsylvania, without condition or
deduction for any counterclaim, defense, recoupment or setoff, to the Agent
at its address referred to in Section 9.01. The Agent will promptly
distribute (i) to each Bank its ratable share of each such payment received
by the Agent for the account of the Banks, (ii) to each LC Issuing Bank each
payment received by the Agent for the account of such LC Issuing Bank, and
(iii) to the Swingline Bank each payment received by the Agent for the
account of the Swingline Bank. Whenever any payment of principal of, or
interest on, the Base Rate Loans or the Swingline Loans, or of fees shall be
due on a day which is not a Business Day, the date for payment thereof shall
be extended to the next succeeding Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Business Day. If the date for any payment of principal is extended
in accordance with this Section 2.13, by operation of law or otherwise,
interest thereon shall be payable for such extended time.
() Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate.
Section . Funding Losses.
If the Borrower makes any payment of principal with respect to any Euro-
Dollar Loan, or any Euro-Dollar Loan is converted to a Base Rate Loan
(whether such payment or conversion is pursuant to Article 2, Article 6 or
Article 8 or otherwise) on any day other than the last day of an Interest
Period applicable thereto, or the last day of an applicable period fixed
pursuant to Section 2.07(c), or if the Borrower fails to borrow any Euro-
Dollar Loan, or to prepay, convert or continue any Euro-Dollar Loan, after
notice has been given to any Bank in accordance with Section 2.04(a) or
Section 2.10(a) or the Borrower fails to pay when due any interest on Euro-
Dollar Loans hereunder, the Borrower shall indemnify against and pay each
Bank within 15 days after demand all losses (excluding loss of margin)
incurred in liquidating or employing deposits from third parties, provided
that such Bank shall have delivered to the Borrower a certificate setting
forth, in good faith, such amount and the calculation thereof in reasonable
detail (which calculation may include such assumptions, allocations of costs
and expenses and averaging or attribution methods as such Bank may deem
reasonable) to be necessary to indemnify such Bank for such loss or expense.
For all purposes of this Agreement and each Note with respect to any aspects
of the Euro-Dollar Loans, each Bank shall be presumed to have obtained rates,
funding, deposits, and the like in the London interbank market regardless
whether it did so or not; and, each Bank's determination of amounts payable
under, and actions required or authorized by this Section 2.14, shall be
calculated as though such Bank funded its Euro-Dollar Loans through the
purchase of deposits of the types and maturities corresponding to the
deposits used as a reference in accordance with the terms hereof in
determining the Euro-Dollar Rate applicable to such Loans, whether in fact
that is the case.
Section . Computation of Interest and Fees.
Interest based on the Base Rate hereunder shall be computed on the basis
of a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the last day).
All other interest and all letter of credit fees and facility fees shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section . Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, the
Borrower may at any time and from time to time prior to the Termination Date
request the issuance of Letters of Credit by an LC Issuing Bank for its own
account, and the amendment, renewal (other than with respect to any Auto-
Extension LC) or extension of any Letter of Credit, in each case in form
reasonably acceptable to the LC Issuing Bank. If the conditions to issuance
of a Letter of Credit are satisfied, the applicable LC Issuing Bank that has
been requested to issue a Letter of Credit shall be required to issue such
Letter of Credit. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, any LC Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed
by the terms and conditions hereof.
(b) (i) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal (other than with respect to any Auto-Extension LC) or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have
been approved by the applicable LC Issuing Bank) to the applicable LC Issuing
Bank and the Agent (not less than two Business Days in advance of the
requested date of issuance, amendment, renewal or extension or such shorter
period as is acceptable to the applicable LC Issuing Bank) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the applicable LC Issuing Bank, the Borrower also shall submit a
letter of credit application on such LC Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall
be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, the LC Issuing Bank Exposure of
such LC Issuing Bank would not exceed its LC Commitment. The Agent will,
upon request of any LC Issuing Bank, confirm the Aggregate Usage.
Notwithstanding anything to the contrary contained in this Agreement, no LC
Issuing Bank shall issue, amend, renew or extend any Letter of Credit if, no
later than one Business Day prior to the date of such issuance, amendment,
renewal or extension, it shall have received written notice from the Agent or
Required Banks that the conditions set forth in Section 3.02 with respect
thereto have not been satisfied.
(ii) Auto-Extension LCs. If the Borrower so requests in any
Letter of Credit request, the applicable LC Issuing Bank shall agree to issue
a Letter of Credit that has automatic extension provisions (each, an "Auto-
Extension LC"); provided that any such Auto-Extension LC must permit the
applicable LC Issuing Bank to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice not later than the day in each such twelve-
month period specified in such Letter of Credit (the "Non-Extension Date").
Unless otherwise directed by the LC Issuing Bank, the Borrower shall not be
required to make a specific request to the LC Issuing Bank for any such
extension.
(c) Expiration Date. Each Letter of Credit (other than an Auto-
Extension LC) shall expire at or prior to the close of business on a date no
later than on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Termination Date. During the
last period prior to the Termination Date in which an LC Issuing Bank can do
so, an LC Issuing Bank shall give notice of non-extension of any Auto-
Extension LC that, but for such notice, would have an expiration date
occurring later than the date that is five (5) Business Days prior to the
Termination Date unless the Borrower has provided cash collateral in an
amount at least equal to the amount available under such Auto-Extension LC
and the other Banks are released from their participation obligations with
respect thereto on the Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of any LC Issuing Bank or the Banks, the LC
Issuing Bank in respect of such Letter of Credit hereby grants to each Bank,
and each Bank hereby acquires from such LC Issuing Bank, a participation in
such Letter of Credit equal to such Bank's Percentage as of the date thereof
of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees to pay to the Agent, for the account
of such LC Issuing Bank, such Bank's participation percentage of each LC
Disbursement made by such LC Issuing Bank and not reimbursed by the Borrower
on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Bank acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any LC Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Agent an amount equal to such LC
Disbursement not later than 2:00 p.m., Pittsburgh time, on the date that such
LC Disbursement is made or the next Business Day if the Borrower has
requested a Committed Loan to finance such reimbursement, if the Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m.,
Pittsburgh time, on such date, or, if such notice has not been received by
the Borrower prior to such time on such date, then not later than 2:00 p.m.,
Pittsburgh time, on the Business Day immediately following the day that the
Borrower receives such notice or the next Business Day if the Borrower has
requested a Committed Loan to finance such reimbursement; provided that, the
Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.02 that such payment be financed with
(X) a Base Rate Borrowing (notwithstanding the fact that such LC Disbursement
may be less than the Minimum Committed Amount) or (Y) a Swingline Loan
(notwithstanding the fact that such LC Disbursement may be less than the
Minimum Swingline Amount), in each case in an equivalent amount and,
accordingly, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting Base Rate Borrowing or Swingline
Loan, as the case may be. If the Borrower fails to make such payment when
due, the Agent shall notify each Bank of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Bank's share
thereof. Promptly following receipt of such notice, each Bank shall pay to
the Agent its share of the payment then due from the Borrower, in the same
manner as provided in Section 2.04 with respect to Loans made by such Bank
(and Section 2.04 shall apply, mutatis mutandis, to the payment obligations
of the Banks), and the Agent shall promptly pay to such LC Issuing Bank the
amounts so received by it from the Banks. Promptly following receipt by the
Agent of any payment from the Borrower pursuant to this paragraph, the Agent
shall distribute such payment to such LC Issuing Bank or, to the extent that
Banks have made payments pursuant to this paragraph for the account of such
LC Issuing Bank, then to such Banks and the LC Issuing Bank as their
interests may appear. Any payment made by a Bank pursuant to this paragraph
for the account of such LC Issuing Bank for any LC Disbursement (other than
the funding of a Base Rate Borrowing or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever
and irrespective of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the applicable LC Issuing Bank
under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, or (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Agent, the Banks nor any LC
Issuing Bank shall have any liability or responsibility by reason of or in
connection with the issuance, amendment, renewal, extension or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the applicable LC
Issuing Bank; provided that the foregoing provisions of this clause (f) shall
not be construed to excuse any LC Issuing Bank from liability to the Borrower
to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by such
LC Issuing Bank's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of such LC Issuing Bank (as
finally determined by a court of competent jurisdiction), such LC Issuing
Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit,
the applicable LC Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each LC Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit issued by such LC Issuing Bank.
Such LC Issuing Bank shall promptly notify the Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such
LC Issuing Bank has made or will make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such LC Issuing Bank or otherwise
make payments to the Banks with respect to any such LC Disbursement.
(h) Interim Interest. If any LC Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to Base Rate
Borrowings; provided that, if the Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then such
unpaid amount shall bear interest at a rate per annum equal to 2% plus the
rate per annum then applicable to Base Rate Borrowings. Interest accrued
pursuant to this paragraph shall be for the account of the applicable LC
Issuing Bank, except that interest accrued on and after the date of payment
by any Bank pursuant to paragraph (e) of this Section for the account of such
LC Issuing Bank shall be for the account of such Bank to the extent of such
payment.
(i) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Agent or the Required Banks (or, if the maturity of the Loans has been
accelerated, Banks with LC Exposure representing greater than 50% of the
total LC Liabilities) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Agent, in
the name of the Agent and for the benefit of the Banks, an amount in cash
equal to the LC Liabilities as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described
in clause (g) or (h) of Section 6.01. Such deposit shall be held by the
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Agent to reimburse
the LC Issuing Banks for LC Disbursements for which they have not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Banks with LC Liabilities representing greater
than 50% of the total LC Liabilities), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid), together with any interest thereon, shall be returned to the
Borrower within three Business Days after all Events of Default have been
cured or waived or all obligations hereunder have been paid (except for
obligations which survive termination and are not then owing).
(j) LC Fees. The Borrower shall pay to the Agent, for the account of
the Banks ratably (prior to the expiration or other termination of the
aggregate Commitments, in accordance with their respective Percentages and,
thereafter, in accordance with their participation interests in the LC
Liabilities), a letter of credit fee at (i) the Stand-by LC Fee Rate on the
aggregate amount available for drawings under each Stand-by Letter of Credit
(other than Workers' Compensation Letters of Credit) outstanding from time to
time, (ii) the Stand-by LC Fee Rate minus 0.05% per annum on the aggregate
amount available for drawings under each Workers' Compensation Letter of
Credit outstanding from time to time, and (iii) one half of the Stand-by LC
Fee Rate on the aggregate amount available for drawings under each
Documentary Letter of Credit outstanding from time to time. Each such fee
shall be payable in arrears on each Quarterly Date for so long as such Letter
of Credit is outstanding and on the expiry date thereof. The Borrower shall
pay to each LC Issuing Bank additional fronting fees and expenses in the
amounts and at the times agreed between the Borrower and such LC Issuing
Bank. The LC Issuing Banks shall furnish to the Agent upon request such
information as the Agent shall require in order to calculate the amount of
any fee payable under this subsection (j). "Stand-by LC Fee Rate" means, for
any day, a rate per annum equal to the Euro-Dollar Margin for such day.
(k) LC Commitment Adjustment. The Borrower shall promptly notify the
Agent of any adjustment agreed to between the Borrower and an LC Issuing Bank
in the LC Commitment of such LC Issuing Bank.
Section . Maximum Interest Rate.
() Nothing contained in this Agreement or the Notes shall require the
Borrower to pay interest for the account of any Bank at a rate exceeding the
maximum rate permitted by applicable law.
() If the amount of interest payable for the account of any Bank on
any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to Section 2.07 and Section 2.15, would
exceed the maximum amount permitted by applicable law to be charged by such
Bank, the amount of interest payable for its account on such interest payment
date shall be automatically reduced to such maximum permissible amount.
() If the amount of interest payable for the account of any Bank in
respect of any interest computation period is reduced pursuant to
subsection (b) of this Section and the amount of interest payable for its
account in respect of any subsequent interest computation period, computed
pursuant to Section 2.07 and Section 2.15, would be less than the maximum
amount permitted by applicable law to be charged by such Bank, then the
amount of interest payable for its account in respect of such subsequent
interest computation period shall be automatically increased to such maximum
permissible amount; provided that at no time shall the aggregate amount by
which interest paid for the account of any Bank has been increased pursuant
to this subsection (c) exceed the aggregate amount by which interest paid for
its account has theretofore been reduced pursuant to subsection (b) of this
Section.
Section . Defaulting Banks.
() If a Bank becomes, and during the period it remains, a Defaulting
Bank, the following provisions shall apply, notwithstanding anything to the
contrary in this Agreement:
(i) the LC Issuing Bank Exposure and outstanding Swingline Loans
of such Defaulting Bank will, subject to the limitation in the first proviso
below, automatically be reallocated (effective on the day such Bank becomes a
Defaulting Bank) among the non-Defaulting Banks pro rata in accordance with
their respective Commitments (without giving effect to Commitments
attributable to Defaulting Banks); provided that (a) the sum of all non-
Defaulting Banks' Credit Extensions does not exceed the total of all non-
Defaulting Banks' Commitments (and to the extent such reallocation would
cause such Credit Extensions to exceed such Commitments, then a partial
reallocation shall be made in a manner so that the sum of all non-Defaulting
Banks' Credit Extensions does not exceed the total of all non-Defaulting
Banks' Commitments) and (b) neither such reallocation nor any payment by a
non-Defaulting Bank pursuant thereto will constitute a waiver or release of
any claim the Borrower, the Agent, the LC Issuing Bank, the Swingline Bank or
any other Bank may have against such Defaulting Bank or cause such Defaulting
Bank to be a non-Defaulting Bank; provided, however, if a Default has
occurred and is continuing as of the date on which the applicable Bank
becomes a Defaulting Bank, then such Defaulting Bank's portion of the LC
Issuing Bank Exposure will not be reallocated among the non-Defaulting Banks
until such Default is no longer continuing; and
(ii) to the extent that any portion of the Defaulting Bank's LC
Issuing Bank Exposure and outstanding Swingline Loans cannot be so
reallocated, for any reason, the Borrower will, not later than five Business
Days after demand by the Agent (at the direction of the LC Issuing Bank
and/or the Swingline Bank), (a) provide cash collateral to support such
Defaulting Bank's participation in LC Issuing Bank Exposure or outstanding
Swingline Loans, as the case may be (after giving effect to any partial
reallocation), in a manner reasonably satisfactory to the LC Issuing Bank or
the Swingline Bank, as the case may be, for so long as such LC Issuing Bank
Exposure or Swingline Loans remain outstanding, (b) in the case of
outstanding Swingline Loans, prepay the unreallocated portion thereof, or
(c) make other arrangements reasonably satisfactory to the Agent, the LC
Issuing Bank and the Swingline Bank to protect them against the risk of non-
payment by such Defaulting Bank.
(b) So long as any Bank is a Defaulting Bank, the LC Issuing Bank shall
not be required to issue, amend or increase any Letter of Credit and the
Swingline Bank will not be required to make any Swingline Loans unless it is
reasonably satisfied that the related exposure will be 100% covered or
eliminated by any combination of the following:
(i) the Defaulting Bank's participation in LC Issuing Bank
Exposure and outstanding Swingline Loans is reallocated as to such Letters of
Credit and Swingline Loans to the non-Defaulting Banks as provided in Section
2.18(a) above; and
(ii) without limiting the provisions of Section 2.18(b)(i), the
Borrower provides cash collateral to support the obligations of the
Defaulting Bank in respect of such Letter of Credit or Swingline Loan in a
manner reasonably satisfactory to the LC Issuing Bank or the Swingline Bank,
as the case may be, for so long as such LC Issuing Bank Exposure or Swingline
Loans remain outstanding or the Borrower makes other arrangements reasonably
satisfactory to the Agent, the LC Issuing Bank and the Swingline Bank, as the
case may be, to protect them against the risk of non-payment by such
Defaulting Bank.
(c) Notwithstanding anything to the contrary in this Agreement, any
amount paid by the Borrower for the account of a Defaulting Bank under this
Agreement (whether on account of principal, interest, fees, indemnity
payments or other amounts) will not be paid or distributed to such Defaulting
Bank, but will instead be applied by the Agent, to the fullest extent
permitted by law, in the following order of priority: first to the payment
of any amounts owing by such Defaulting Bank to the Agent under this
Agreement, second to the payment on a pro rata basis of any amounts owing by
such Defaulting Bank to the LC Issuing Bank or Swingline Bank under this
Agreement, third if so determined by the Agent or requested by the applicable
LC Issuing Bank or Swingline Bank or the Borrower, to be held as cash
collateral for future funding obligations of that Defaulting Bank of any
participation in any Swingline Loan or Letter of Credit; fourth, as the
Borrower may request (so long as no Default or Event of Default exists), to
the funding of any Loan in respect of which that Defaulting Bank has failed
to fund its portion thereof as required by this Agreement; fifth, if so
determined by the Agent and the Borrower, to be held in a non-interest
bearing deposit account and released in order to satisfy obligations of that
Defaulting Bank to fund Loans under this Agreement; sixth, to the payment of
any amounts owing to the Banks, any L/C Issuing Bank or Swingline Bank as a
result of any judgment of a court of competent jurisdiction obtained by any
Bank, any L/C Issuing Bank or Swingline Bank against that Defaulting Bank as
a result of that Defaulting Bank's breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a
court of competent jurisdiction obtained by the Borrower against that
Defaulting Bank as a result of that Defaulting Bank's breach of its
obligations under this Agreement; and eighth, to that Defaulting Bank or as
otherwise directed by a court of competent jurisdiction; provided that if
(x) such payment is a payment of the principal amount of any Loans or LC
Obligations in respect of which that Defaulting Bank has not fully funded its
appropriate share and (y) such Loans or LC Obligations were made at a time
when the conditions set forth in Section *3.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and LC Obligations owed
to, all non-Defaulting Banks on a pro rata basis prior to being applied to
the payment of any Loans of, or LC Obligations owed to, that Defaulting Bank.
Any payments, prepayments or other amounts paid or payable to a Defaulting
Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or
to post cash collateral pursuant to this Section *2.18(c) shall be deemed
paid to and redirected by that Defaulting Bank, and each Bank irrevocably
consents hereto.
(d) Defaulting Banks shall not be entitled to receive any LC Fees
pursuant to Section *2.16(j) or any facility fees pursuant to Section 2.08
for any period during which that Bank is a Defaulting Bank (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Bank); provided that to the
extent that a portion of the LC Issuing Bank Exposure of such Defaulting Bank
is reallocated to the non-Defaulting Banks pursuant to this Section 2.18,
such fees that would have accrued for the benefit of such Defaulting Bank
will instead accrue for the benefit of and be payable to such non-Defaulting
Banks, pro rata in accordance with their respective participations in LC
Liabilities.
ARTICLE
CONDITIONS
Section . Conditions to Effectiveness.
This Agreement shall become effective as of the date (the "Closing
Date") when all of the following conditions to effectiveness shall be
satisfied:
() the Agent shall have received counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, the Agent shall have received in
form satisfactory to it of facsimile or other written confirmation from such
party that it has executed a counterpart hereof);
() the Agent shall have received a duly executed Note for the account
of each Bank requesting the same dated as of the Closing Date complying with
the provisions of Section 2.05;
() the Agent shall have received counterparts of a Subsidiary Guaranty
Agreement, substantially in the form of Exhibit C hereto, duly executed by
each of the Obligors listed on the signature pages thereof;
() the Agent shall have received an opinion of legal counsel for the
Borrower relating to the transactions contemplated hereby, in form and
substance reasonably satisfactory to the Agent;
() receipt by the Agent of verification, in form and substance
reasonably satisfactory to the Agent, that the Borrower's Existing Credit
Agreement has been terminated and all loans and other amounts owing
thereunder have been paid in full (or will be paid in full with the initial
Loan advance hereunder) (provided that letters of credit that remain
outstanding under the Existing Credit Agreement shall either be supported by
Letters of Credit issued under this Agreement or become Letters of Credit
under this Agreement);
() the Agent shall have received all documents the Agent may
reasonably request relating to the existence of the Obligors and the
corporate authority for and the validity of the Financing Documents, in form
and substance reasonably satisfactory to the Agent;
() the Agent shall have received a certificate, dated the Closing Date
and signed by the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of the Borrower confirming
compliance with the conditions precedent set forth in paragraphs (c), (d) and
(e) of Section 3.02, together with such supporting documentation as may be
reasonably requested by the Agent; and
(h) the Borrower shall have paid all fees and expenses owing on the
Closing Date by the Borrower to the Credit Parties.
The Agent shall promptly notify each of the other Credit Parties and the
Borrower of the Closing Date, and such notice shall be conclusive and binding
on all parties hereto.
Section . Credit Extensions.
In addition to the requirements set forth in Section 3.01, the
obligation of any Bank to make a Loan on the occasion of any Borrowing and
the obligation of an LC Issuing Bank to issue, amend, renew or extend a
Letter of Credit on the occasion of a request therefor by the Borrower are
each subject to the satisfaction of the following conditions (in addition to
those set forth in Section 2.16(d), if applicable):
() receipt (i) by the Agent of a Notice of Borrowing as required
by Section 2.02 or Section 2.03, as the case may be, in the case of a
Borrowing or (ii) by such LC Issuing Bank of a notice as required by
Section 2.16, in the case of a Letter of Credit;
() the fact that, after giving effect to such Credit Extension,
the Aggregate Usage will not exceed the aggregate amount of the Commitments;
() the fact that, immediately before and after such Credit
Extension, no Default shall have occurred and be continuing;
() the fact that the representations and warranties of the
Borrower contained in this Agreement (other than the representations and
warranties set forth in Sections 4.04(c), 4.05(a), 4.06, 4.07 and 4.11(b))
shall be true in all material respects on and as of the date of such Credit
Extension; and
(e) with respect to any Credit Extension to be made on the Closing
Date, the fact that the representations and warranties of the Borrower
contained in Sections 4.04(c), 4.05(a), 4.06, 4.07 and 4.11(b) shall be true
in all material respects on and as of the Closing Date.
Each Credit Extension shall be deemed to be a representation and warranty by
the Borrower on the date of such Credit Extension as to the facts specified
in clauses (b), (c) and (d) of this Section. Each Credit Extension arising
out of an Auto- Extension LC shall be deemed to occur on the last Business
Day upon which the LC Issuing Bank that issued such Auto- Extension LC could
have, in accordance with the terms of such Auto- Extension LC, given notice
the effect of which would have been to prevent the automatic extension of
such Auto- Extension LC.
ARTICLE
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Banks that:
Section . Corporate Existence and Power.
The Borrower (a) is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware, and (b) has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except, with
respect to clause (b), where failure to do so could not reasonably be
expected to have a material adverse effect on the business, financial
position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
Section . Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by each Obligor of the Financing
Documents to which it is a party are within its corporate or limited
liability company powers or other organizational powers, as the case may be,
have been duly authorized by all necessary corporate or limited liability
company or other requisite action, as the case may be, require no material
action by or in respect of, or material filing with, any Official Body and do
not contravene, or constitute a default under, any material provision of any
applicable law or regulation or of the certificate of incorporation or
by-laws or certificate of formation or operating agreement, as the case may
be, of such Obligor or of any material agreement, judgment, injunction,
order, decree or other instrument binding upon such Obligor or any Subsidiary
or result in the creation or imposition of any Lien on any material asset of
such Obligor or any Subsidiary.
Section . Binding Effect.
This Agreement constitutes a valid and binding agreement of the Borrower
and the Notes, when executed and delivered in accordance with this Agreement,
will constitute valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether considered in a proceeding at law
or in equity). The Subsidiary Guaranty Agreement, when executed and
delivered by each Obligor, will constitute a valid and binding agreement of
such Obligor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
Section . Financial Information.
() The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 2009, and the related statements of
consolidated income, consolidated cash flows and consolidated shareholders'
equity for the fiscal year then ended, reported on by KPMG LLP and set forth
in the Borrower's 2009 Annual Report to Shareholders, a copy of which has
been delivered to the Agent (for posting on Intralinks for the Banks or
otherwise), fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
() The unaudited condensed consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of June 30, 2010, and, the related
unaudited condensed statements of consolidated income and consolidated cash
flows for the six months then ended, set forth in the Borrower's quarterly
report for the fiscal quarter ended June 30, 2010 as filed with the
Securities and Exchange Commission on Form 10-Q, a copy of each of which has
been delivered to the Agent, fairly present, on a basis consistent with the
financial statements referred to in subsection (a) of this Section (except as
otherwise disclosed therein), the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such six-month period
(subject to normal year-end adjustments and the absence of footnotes).
() As of the Closing Date, there has been no material adverse change
since December 31, 2009, in the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole.
Section . Litigation.
There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or official (a) as of the Closing Date, which could reasonably be expected to
have a material adverse effect on the business, financial position or results
of operations of the Borrower and its Consolidated Subsidiaries, considered
as a whole, or (b) instituted by the Borrower or any of its Subsidiaries
which in any manner draws into question the validity of any Financing
Document.
Section . Compliance with ERISA.
As of the Closing Date, each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all respects
with the presently applicable provisions of ERISA and the Internal Revenue
Code with respect to each Plan, except to the extent that noncompliance could
not reasonably be expected to result, individually or in the aggregate, in a
material adverse effect on the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole. As of the Closing Date, no member of the ERISA Group has (a) sought a
waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code in respect of any Plan, (b) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit Arrangement, which
has resulted in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code, except to the extent such
Lien, bond or other security could not reasonably be expected to result,
individually or in the aggregate, in a material adverse effect on the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or (c) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA, except to the extent such liability
could not reasonably be expected to result, individually or in the aggregate,
in a material adverse effect on the business, financial position or results
of operations of the Borrower and its Consolidated Subsidiaries, considered
as a whole.
Section . Environmental Matters.
As of the Closing Date, to the knowledge of the Borrower, liabilities
and costs of the Borrower and its Subsidiaries associated with compliance
with Environmental Laws are unlikely (after taking into account the
Borrower's reserves for such liabilities and costs) to result in a material
adverse effect on the business, financial position or results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
Section . Taxes.
The Borrower and its Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are required to
be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any Subsidiary, except
for (a) any taxes or assessments, the amount of which is not individually or
in the aggregate material or (b) any taxes or assessments being contested in
good faith. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes or other governmental charges are,
in the opinion of the Borrower, adequate.
Section . Subsidiaries.
As of the Closing Date, each of the Borrower's Subsidiaries is a
corporation, limited liability company or other legal Person duly
incorporated or formed, validly existing and in good standing under the laws
of its jurisdiction of incorporation or formation, and has all corporate,
limited liability company or organizational, as the case may be, powers and
all governmental licenses, authorizations, consents and approvals required to
carry, on its business as now conducted, except where failure to do so could
not reasonably be expected to have a material adverse effect on the business,
financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole. As of the Closing Date,
each Subsidiary Guarantor is a Wholly-Owned Subsidiary of the Borrower.
Section . Not an Investment Company; Federal Reserve Regulations.
(a) Neither the Borrower nor any Subsidiary Guarantor is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(b) Immediately before and after giving effect to each Credit
Extension, Margin Stock (within the meaning of Regulation U) will constitute
less than 25% of the Borrower's assets as determined in accordance with
Regulation U.
Section . Full Disclosure.
(a) All information heretofore furnished by the Borrower to the Agent
or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, taken as a whole, and all such
information hereafter furnished by the Borrower to the Agent or any Bank will
be, taken as a whole, true and accurate in all material respects on the date
as of which such information is stated or certified. The Borrower has
disclosed to the Banks in writing any and all facts (which shall be deemed to
include facts contained in the Borrower's publicly available filings with the
Securities Exchange Commission) which materially and adversely affect or
could reasonably be expected to materially and adversely affect the ability
of the Borrower to perform its obligations under this Agreement.
(b) As of the Closing Date, the Borrower has disclosed to the Agent in
writing any and all facts (which shall be deemed to include facts contained
in the Borrower's publicly available filings with the Securities Exchange
Commission) which materially and adversely affect or could reasonably be
expected to materially and adversely affect the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken
as a whole.
ARTICLE
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment or any
Loan or LC Liability remains outstanding, which in the case of any LC
Liability has not been fully cash collateralized (or supported by other
credit enhancement) in form and substance reasonably satisfactory to the
Agent and each LC Issuing Bank:
Section . Information.
The Borrower will deliver to the Agent:
() as soon as available and in any event within 100 days after
the end of each fiscal year of the Borrower, the audited consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related audited statements of consolidated income,
consolidated cash flows and consolidated shareholders' equity for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the
Securities and Exchange Commission by KPMG LLP or other independent public
accountants of nationally recognized standing;
() as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Borrower,
the condensed consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter, the related condensed statements
of income and consolidated cash flows for such quarter and the related
condensed statements of income and consolidated cash flows for the portion of
the Borrower's fiscal year ended at the end of such quarter, setting forth in
the case of such statements of consolidated income and consolidated cash
flows in comparative form the figures for the corresponding periods of the
Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments and the absence of footnotes) as to fairness of presentation in
all material respects by the chief financial officer or the chief accounting
officer of the Borrower;
() simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief executive officer, president, chief financial officer, treasurer or
assistant treasurer of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 5.07, 5.08, 5.09 and 5.12 on the date of
such financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
() simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants (to the extent available from such firm) which
reported on such statements as to whether anything has come to their
attention to cause them to believe that any Default existed on the date of
such statements (to the extent such firm is willing to provide such a
statement on commercially reasonable terms);
() within five Business Days after any officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
() promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
() promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the Securities
and Exchange Commission;
() promptly if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, which could, when aggregated with any liability incurred by
any member of the ERISA Group as a result of any other such withdrawal
liability, reorganization, insolvency or termination, give rise to aggregate
liabilities of the ERISA Group in excess of $75,000,000, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 or ERISA, which could, when aggregated with any liability
incurred by any member of the ERISA Group as a result of any other such
withdrawal, give rise to aggregate liabilities of the ERISA Group in excess
of $75,000,000, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which
has resulted in the imposition of a Lien or the posting of a bond or other
security valued in an amount when aggregated with the value of any other such
Lien, bond or security imposed on any member of the ERISA Group in excess of
$75,000,000, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take;
() from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Bank, may reasonably request (provided that
delivery of such information does not result in (x) a breach of any
confidentiality agreement or obligation with a third party or (y) disclosure
of information subject to attorney-client privilege or constitutes attorney
work product); and
() promptly such other information with documentation required by
bank regulatory authorities under applicable "know your customer" and anti-
money laundering rules and regulations (including, without limitation, the
Patriot Act), as from time to time may be reasonably requested by the Agent
or any Bank.
Section . Payment of Obligations.
The Borrower will pay and discharge, and will cause each Subsidiary to
pay and discharge, at or before maturity, all their respective obligations
and liabilities, including, without limitation, tax liabilities, except where
(a) the same are contested in good faith by appropriate proceedings or (b)
such non-payment could not reasonably be expected to have a material adverse
affect on the business, operations or financial condition of the Borrower and
its Consolidated Subsidiaries, taken as a whole, and will maintain, and will
cause each Subsidiary to maintain, in accordance with generally accepted
accounting principles, appropriate reserves for the accrual of any of the
same.
Section . Maintenance of Property; Insurance.
() The Borrower will keep, and will cause each Subsidiary to keep, all
property useful and necessary in its business in good working order and
condition (ordinary, wear and tear and unexpected accidents or catastrophes
excepted), except to the extent the non-maintenance of which could not
reasonably be expected to have a material adverse affect on the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole.
() The Borrower will maintain, and will cause each Subsidiary to
maintain, with financially sound and reputable insurers, insurance against
liabilities to third parties, casualties affecting property used in its
business and other risks of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar
business and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other corporations;
provided that, in lieu of any such insurance, the Borrower or any such
Subsidiary may maintain a system or systems of self-insurance and reinsurance
which will accord with sound practices of similarly situated corporations
maintaining such systems and with respect to which the Borrower or such
Subsidiary will maintain adequate insurance reserves, all in accordance with
generally accepted accounting principles and in accordance with sound
insurance principles or practice.
Section . Conduct of Business and Maintenance of Existence.
The Borrower will continue, and will cause its Subsidiaries, taken as a
whole, to continue, to engage in business of the same general type as now
conducted by the Borrower and its Subsidiaries or reasonable extensions
thereof or activities ancillary thereto or related to in the same or similar
line of business as now conducted, and will preserve, renew and keep in full
force and effect, and will cause its Subsidiaries, taken as a whole, to
preserve, renew and keep in full force and effect their respective corporate
or limited liability company or other organizational existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.04 shall
prohibit (a) any merger or consolidation permitted by Section 5.10, or
(b) the termination (whether by dissolution, liquidation or wind-up) of the
corporate or limited liability company or other organizational existence of
any Subsidiary if the Borrower in good faith determines that such termination
is in the best interest of the Borrower and is not materially disadvantageous
to the Banks. The Borrower will not amend, or permit any Subsidiary to
amend, its certificate of incorporation, by-laws or other organizational
documents without the prior written consent of the Required Banks if such
amendment would have a material adverse effect on the ability of the Borrower
or any of its Subsidiaries to comply with the terms of the Financing
Documents or the ability of the Agent and the Banks to enforce their rights
thereunder.
Section . Compliance with Laws.
The Borrower will comply, and will cause each Subsidiary to comply, in
all respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws and ERISA and the rules and regulations thereunder),
except where (a) the necessity of compliance therewith is contested in good
faith by appropriate proceedings or (b) failures to comply therewith could
not, in the aggregate, reasonably be expected to have a material adverse
effect on the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
taken as a whole.
Section . Inspection of Property, Books and Records.
The Borrower will keep, and will cause each Subsidiary to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower will permit, and will cause any Significant
Subsidiary to permit representatives of any Bank, at such Bank's expense, to
visit and inspect any of their respective properties to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent accountants, in each case to the extent reasonably
requested by such Bank to enable it to evaluate the credit of the Borrower
and such Significant Subsidiary, confirm the Borrower's compliance with the
provisions of the Financing Documents, exercise and enforce such Bank's
rights under the Financing Documents or otherwise make decisions relating
thereto, but subject to any limitations imposed by law or by confidentiality
agreements binding on the Borrower or the relevant Significant Subsidiary and
excluding materials subject to attorney-client privilege or attorney work
product. Such visits, inspections, examinations and discussions shall be
conducted at such reasonable times and on reasonable prior notice and as
often as the relevant Bank or Banks may reasonably request and the Borrower
shall be entitled to participate in or observe all such visits, inspections,
examinations and discussions; provided, that no more than two such
inspections, examinations or discussions may be made in any fiscal year so
long as no Event of Default has occurred and is continuing.
Section . Debt.
Total Debt of all Subsidiaries then outstanding will at no time exceed
$75,000,000; provided that such total Debt shall not include:
(a) Debt of a Subsidiary owing to the Borrower;
(b) Debt of a Subsidiary owing to another Subsidiary (except, in
the case of Debt held by a Subsidiary that is not wholly owned, directly or
indirectly, by the Borrower, the portion of such Debt allocable, on a pro
rata basis, to the minority interest);
(c) Guarantees by a Subsidiary of Debt of the Borrower or Debt of
another Subsidiary;
(d) Debt of a Subsidiary outstanding on September 30, 2010, and
listed on Schedule 5.07 or any refinancing of such Debt, provided that the
principal amount of refinancing Debt excluded from total Debt pursuant to
this clause (d) shall not exceed the principal amount of the Debt refinanced
thereby (plus accrued interest owing thereon and the amount of fees, premiums
and expenses charged or otherwise paid in connection with any such
refinancing);
(e) Debt of a Subsidiary secured by a purchase money Lien or in
respect of capitalized lease obligations permitted by Section 5.09(b) (or any
refinancing thereof); provided that the aggregate outstanding principal
amount of all Debt of the Borrower or all Subsidiaries excluded from total
Debt pursuant to this clause (e) shall not at any time exceed $150,000,000.00
(plus accrued interest owing thereon and the amount of fees, premiums and
expenses charged or otherwise paid in connection with any such refinancing);
(f) Debt of a Subsidiary existing at the time of acquisition of
such Subsidiary by the Borrower or another Subsidiary and not created in
contemplation thereof (and any refinancing thereof); provided that the
principal amount of refinancing Debt excluded from total Debt pursuant to
this clause (f) shall not exceed the principal amount of the Debt refinanced
thereby (plus accrued interest owing thereon and the amount of fees, premiums
and expenses charged or otherwise paid in connection with any such
refinancing);
(g) Debt of a Subsidiary secured by Liens permitted by Section
5.09(c) or Section 5.09(d) (and any refinancing thereof); provided that the
principal amount of refinancing Debt excluded from total Debt pursuant to
this clause (g) shall not exceed the principal amount of the Debt refinanced
thereby (plus accrued interest owing thereon and the amount of fees, premiums
and expenses charged or otherwise paid in connection with any such
refinancing);
(h) Guarantees by a Subsidiary of Debt of an ESOP Trust; and
(i) Debt pursuant to any Receivables Financing so long as the
aggregate outstanding amount of Debt of the SP Sub pursuant thereto does not
exceed $300,000,000.00 at any one time.
As used herein, the term "ESOP Trust" means a trust created under an employee
stock ownership plan as defined in Section 407(d)(6) of ERISA which benefits
employees of a member of the ERISA Group.
Section . Leverage Ratio.
The ratio of (a) Consolidated Debt (minus unrestricted cash and cash
equivalents, marketable securities with a maturity date of 90 days or less
(provided that such marketable securities, if short-term, have an A-1 rating
by S&P or F-1 rating by Fitch or, if long-term, an A rating or better by S&P
or the Fitch's equivalent) in each case, at the time of acquisition, of the
Borrower and its Subsidiaries, taken as a whole, in excess of
$100,000,000.00) to (b) Consolidated EBITDA for the immediately preceding
four fiscal quarter period in respect of which financial statements were
delivered to the Agent pursuant to Section 5.01, shall at all times be less
than or equal to 3.50 to 1.
Section . Negative Pledge.
Neither the Borrower nor any Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by it, except:
() any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary, and not created in contemplation of such event
at the request of the Borrower or any of its Subsidiaries or for the benefit
of any of their respective creditors (other than creditors of such Person);
() (i) any purchase money Lien on any property (including
accessions thereto and proceeds thereof) acquired by the Borrower or any
Subsidiary or hereafter constructed or improved by the Borrower or any
Subsidiary, to secure or provide for the payment of all or a part of the
purchase price thereof, or any Debt incurred to finance the purchase thereof
or cost of construction or cost of improvement of such property and for which
a bona fide firm commitment in writing was executed prior to,
contemporaneously with or within l80 days after acquisition of such property,
or the completion of construction or improvement thereof, as the case may be,
provided that no such Lien shall extend to any other property (other than
proceeds, replacements, accessions and improvements thereof or thereto) of
the Borrower or any Subsidiary and (ii) any Lien relating to capitalized
lease obligations of the Borrower or any Subsidiary;
() any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event at the request of the Borrower
or any of its Subsidiaries or for the benefit of any of their respective
creditors (other than creditors of such Person);
() any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created in contemplation of
such acquisition at the request of the Borrower or any of its Subsidiaries or
for the benefit of any of their respective creditors;
() any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section or by clause (k) below, provided that such Debt is
not increased (except accrued interest owing thereon and in the amount of
fees, premiums and expenses charged or otherwise paid in connection with such
transaction) and is not secured by any additional assets;
() any Lien on (i) the common stock or other ownership interest
of any Subsidiary Guarantor, but only if after giving effect to such Lien or
other ownership interest the Borrower would own, directly or indirectly, at
least 80% of the common stock of such Subsidiary Guarantor free and clear of
Liens or (ii) the common stock or other ownership interest of any other
Subsidiary;
() Liens for taxes, assessments or other governmental charges
which are not yet due and payable or that are being contested in good faith;
(h) (i) Liens incidental to the conduct of business or the
ownership of properties and assets (including landlords', carriers',
warehousemen's, mechanics', materialmen's and other similar Liens), (ii)
Liens directly or indirectly securing (1) any obligation under an indemnity,
performance guarantee or similar undertaking or guarantee thereof issued by
or on behalf of the Borrower or its Subsidiaries, (2) any obligation to
reimburse or indemnify any other Person in connection with a performance
guaranty or similar undertaking or guarantee thereof issued by or on behalf
of the Borrower or its Subsidiaries, which indemnity, guarantee or
undertaking in either case (1) or (2) above is issued to secure or support
any contract or other obligation (other than a contract or other obligation
evidencing Debt of the Borrower and its Subsidiaries) entered into by or
otherwise binding upon the Borrower or any of its Subsidiaries in the
ordinary course of business, (iii) Liens directly or indirectly created to
secure the performance of bids, tenders, leases, or trade contracts, or to
secure statutory obligations (including obligations under workers
compensation, unemployment insurance and other social security legislation),
surety or appeal bonds or nonqualified benefit plans, (iv) Liens of customs
or revenue authorities in the ordinary course of business, or (v) Liens with
respect to cash or cash equivalents securing defeased (legal or covenant)
liabilities or obligations which are to be redeemed or which are to be
discharged;
(i) Liens resulting from judgments not constituting an Event of
Default;
(j) Liens securing debt of a Subsidiary owed to the Borrower or to
a Subsidiary Guarantor;
(k) Liens in existence as of the Closing Date and listed on
Schedule 5.09;
(l) leases, subleases, survey exceptions, easements, rights-of-
way, restrictions and other similar charges or encumbrances incidental to the
ownership of property or assets or the ordinary conduct of the Borrower or
any Subsidiary's business;
(m) Liens on property of the Borrower or any Subsidiary (except
Liens on the capital stock or debt of the Borrower or any Subsidiary
Guarantor) in favor of the United States of America or any state thereof, or
any agency or political subdivision of either, or in favor of any other
country or agency or political subdivision thereof, in each case (i) to
secure payments (other than Debt) pursuant to contract or statute in the
ordinary course of business or (ii) to secure Debt created, incurred or
guaranteed for the purpose of financing all or any part of the purchase price
or the cost of construction or improvement of the property subject to such
Liens, including Liens incurred in connection with pollution control,
industrial revenue bond or other similar financings;
(n) other Liens arising in the ordinary course of its business
which (i) do not secure Debt, (ii) do not secure any obligation in an amount
exceeding $50,000,000.00 and (iii) do not in the aggregate materially detract
from the value of the assets of the Borrower and its Subsidiaries or
materially impair the use thereof in the operation of their business, taken
as a whole;
(o) any Lien on accounts receivable if, immediately after such
Lien arises, the aggregate uncollected balance of all accounts receivable
sold or subjected to Liens by the Borrower and its Subsidiaries would not
exceed 15% of the consolidated accounts receivable of the Borrower and its
Subsidiaries as of the end of its then most recently ended fiscal quarter
(excluding, for purposes of this clause (o) accounts receivable charged off
in accordance with the charge-off policies applicable to the unsold accounts
receivable of the Borrower and its Subsidiaries) for which financial
statements were delivered to the Agent pursuant to Section 5.01;
(p) Liens on assets of the SP Sub (including, without limitation,
assets purported to be transferred, assigned, contributed or conveyed to the
SP Sub) arising under any Receivables Financing; and
(q) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt or other obligations if, immediately after giving
effect to the incurrence thereof, the Debt or other obligations secured by
such Liens would not exceed 15% of Consolidated Net Tangible Assets as of the
end of the immediately preceding fiscal quarter of the Borrower for which
financial statements were delivered to the Agent pursuant to
Section 5.01.
Section . Consolidations, Mergers and Sales of Assets.
The Borrower will not, and will not permit any Subsidiary to,
consolidate or merge with, or sell, lease or otherwise transfer any of its
assets to, any Person or dissolve, liquidate or wind up its affairs (other
than in accordance with Section 5.04(ii)), except that nothing in this
Section 5.10 shall prohibit:
(a) the merger or consolidation of the Borrower with or into
another Person if the entity surviving such consolidation or merger is the
Borrower,
(b) the merger or consolidation of a Subsidiary Guarantor with or
into another Person if the entity surviving such consolidation or merger is
or becomes a Subsidiary Guarantor in accordance with Article 3 of the
Subsidiary Guaranty Agreement,
(c) the merger or consolidation of a Subsidiary (other than a
Subsidiary Guarantor) with or into another Person if the entity surviving
such consolidation or merger is the Borrower or a Subsidiary, provided that
if such other Person is the Borrower or a Subsidiary Guarantor, the Borrower
or such Subsidiary Guarantor is the surviving entity,
(d) sales of accounts receivable and related assets in connection
with any Receivables Financing,
(e) the sale, lease or transfer by the Borrower or any Subsidiary
of the Borrower of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Subsidiary;
(f) the transfer of cash or cash equivalents;
(g) any sale, lease or other transfer of any asset (including, in
the case of clause (ii) pursuant to a merger or consolidation) either (i) in
the ordinary course of business or (ii) for fair value if after giving effect
thereto, the aggregate consideration received for all of their assets sold,
leased or otherwise transferred under this clause (ii) during any fiscal year
of the Borrower does not exceed $100,000,000.00;
provided that, in the case of (A) any such merger or consolidation or (B) any
such sale, lease or other transfer of any asset not in the ordinary course of
business, no Default shall have occurred and be continuing after giving
effect thereto.
Section . Use of Proceeds.
Each Credit Extension will be used by the Borrower and its Subsidiaries
to refinance Debt existing immediately prior to the Closing Date and/or for
general corporate purposes, including, without limitation, acquisitions by
the Borrower or any of its Subsidiaries. No Loan or Letter of Credit will be
used, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U.
Section . Fixed Charge Coverage.
The ratio of Consolidated EBITDAR to Consolidated Fixed Charges shall
be, as of the last day of each fiscal quarter (beginning with the fiscal
quarter ended December 31, 2010), greater than or equal to 1.875 to 1 for the
most recently ended four fiscal quarters for which financial statements were
delivered to the Agent pursuant to Section 5.01.
Section . Transactions with Third Party Affiliates.
The Borrower will not, and will not permit any Subsidiary to, directly
or indirectly, pay any funds to or for the account of, make any investment
(whether by acquisition of stock or indebtedness, by loan, advance, transfer
of property, guarantee or other agreement to pay, purchase or service,
directly or indirectly, any Debt, or otherwise) in, lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to, or participate
in, or effect any transaction in connection with any joint enterprise or
other joint arrangement with, any Third Party Affiliate; provided that
nothing in this Section 5.13 shall prohibit:
() the Borrower from declaring or paying any lawful dividend so
long as, immediately after giving effect thereto, no Default would occur or
be continuing;
() the Borrower or any Subsidiary from making sales to or
purchases from any Third Party Affiliate and, in connection therewith,
extending credit or making payments, or from making payments for services
rendered by any Third Party Affiliate, if such sales or purchases are made or
such services are rendered on a basis no less advantageous to the Borrower or
such Subsidiary than would be the case in an arm's-length transaction;
() the Borrower or any Subsidiary from making payments of
principal, interest and premium on any Debt of the Borrower or such
Subsidiary held by a Third Party Affiliate if the terms of such Debt are
established on a basis no less advantageous to the Borrower or such
Subsidiary than would be the case in an arm's-length transaction; or
() the Borrower or any Subsidiary from participating in or
effecting any transaction in connection with any joint enterprise or other
joint arrangement with any Third Party Affiliate if the Borrower or such
Subsidiary participates in the ordinary course of its business and on a basis
no less advantageous than the basis on which such Third Party Affiliate
participates.
Section .14Anti-Terrorism Laws.
The Borrower shall not and shall not permit any of its Subsidiaries to
(a) conduct any business or engage in any transaction or dealing with any
Blocked Person, including the making or receiving any contribution of funds,
goods or services to or for the benefit of any Blocked Person, (b) deal in,
or otherwise engage in any transaction relating to, any property or interests
in property blocked pursuant to the Executive Order No. 13224; or (c) engage
in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in the Executive Order No. 13224, the Patriot Act or
any other anti-terrorism law, except in each case where the failure to do so
is not reasonably likely to constitute a material adverse effect on the
financial condition, or business prospects of the Borrower or any
Subsidiaries or the ability of them to comply with the terms of the Financing
Agreement, or expose the Agent or any Bank to liability. The Borrower shall
deliver to the Banks any certification or other evidence reasonably requested
from time to time by any Bank in its sole discretion, confirming Borrower's
compliance with this Section 5.14.
Section 5.15Acquisitions.
The Borrower shall not, and shall not permit any of its Subsidiaries to,
acquire by purchase, lease or otherwise all or substantially all of the
assets or capital stock of any other Person (other than a Subsidiary),
provided that the Borrower or any Subsidiary may acquire, whether by purchase
or by merger, (a) all of the ownership interests of another Person or
(b) substantially all of assets of another Person or of a business or
division of another Person provided that each of the following requirements
is met:
(i) no Default shall exist immediately prior to and after giving
effect to such Acquisition;
(ii) in the case of such an acquisition of the capital stock or
other equity interest of another Person, the board of directors (or other
comparable governing body) of such other Person shall have duly approved such
acquisition;
(iii)with respect to any such acquisition in excess of $75,000,000,
the Borrower shall demonstrate that it shall be in compliance with the
covenants contained in Section 5.08 and Section 5.12 after giving effect to
such acquisition (including in such computation Debt or other liabilities
assumed or incurred in connection with such acquisition and calculating
Consolidated EBITDA as if such acquisition had occurred on the first day of
the most recent four fiscal quarter period for which financial statements
have been delivered), on a pro forma basis for the most recent four quarter
period for which financial statements have been delivered, by delivering on
or before the date of such acquisition a certificate in the form of the
certificate required pursuant to Section 5.01(c) evidencing such compliance;
and
(iv) if requested by the Agent or the Required Banks, with respect
to any such acquisition in excess of $75,000,000, the Borrower shall deliver
to the Agent copies of any material agreements entered into in connection
with such acquisition, together with such other information about such Person
or its assets as is available to the Borrower as the Agent (or the Required
Banks) may reasonably require (subject to any confidentiality restrictions).
ARTICLE
DEFAULTS
Section . Events of Default.
If one or more of the following events ("Events of Default") shall have
occurred and be continuing:
() the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due, or shall fail to pay within three Business
Days of the due date thereof any interest, fees or other amount payable
hereunder or in connection herewith;
() the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.14
and 5.15 or in Section 3.01 of the Subsidiary Guaranty Agreement;
() the Borrower shall fail to observe or perform any covenant or
agreement contained in (i) any Financing Document (other than those covered
by clause (a) or (b) above) for 30 days after written notice thereof has been
given to the Borrower by the Agent at the request of any Bank, or (ii)
Section 5.01(a) or (b) for 15 days or (iii) Section 5.01(c) for 30 days;
() any representation, warranty, certification or statement made
by the Borrower or any Subsidiary Guarantor in any Financing Document or any
amendment thereof or in any certificate, financial statement or other
document delivered pursuant to any Financing Document shall prove to have
been incorrect in any material respect when made (or deemed made);
() the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Debt within three Business Days after such payment
is due or, if longer, within any grace period otherwise applicable to such
payment;
() any event or condition shall occur which results in the
acceleration of the maturity of Material Debt or enables the holders of
Material Debt or any Person acting on their behalf to accelerate the maturity
thereof;
() the Borrower, any Significant Subsidiary, or group of
Subsidiaries of the Borrower that, taken together, would constitute a
Significant Subsidiary, shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
() an involuntary case or other proceeding shall be commenced
against the Borrower, any Significant Subsidiary, or group of Subsidiaries of
the Borrower that, taken together, would constitute a Significant Subsidiary,
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief in
such involuntary case or proceeding shall be entered against the Borrower,
any Significant Subsidiary, or group of Subsidiaries of the Borrower that,
taken together, would constitute a Significant Subsidiary, under the federal
bankruptcy laws as now or hereafter in effect;
() any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $75,000,000.00 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudication that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of
$75,000,000.00;
() a final judgment or order for the payment of money in excess
of $75,000,000.00 (to the extent not covered by insurance, net of any
applicable deductible) shall be entered or filed against the Borrower or any
Subsidiary and such judgment or order shall continue unsatisfied, unvacated
and unstayed for a period of 60 days;
() any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of 30%
or more of the outstanding shares of common stock of the Borrower or
Continuing Directors shall cease to constitute a majority of the Borrower's
board of directors;
(l) the Borrower or any Subsidiary Guarantor shall take any action
that causes the guarantee by any Subsidiary Guarantor set forth in the
Subsidiary Guaranty Agreement to be revoked or invalidated, or to cease to be
in full force and effect (other than pursuant to Section 4.03 of the
Subsidiary Guaranty Agreement), or the Borrower or any Subsidiary Guarantor
(or any Person acting on behalf of the Borrower or any Subsidiary Guarantor)
shall deny or disaffirm any of the obligations of any Subsidiary Guarantor
set forth in the Subsidiary Guaranty Agreement (except to the extent such
obligations have ceased to be in effect pursuant to Section 4.03 of the
Subsidiary Guaranty Agreement);
then, and in every such event, the Agent may, and upon the request by the
Required Banks, shall (i) if requested, by notice to the Borrower terminate
the Commitments and they shall thereupon terminate and (ii) by notice to the
Borrower declare the unpaid principal amount of the Loans (together with
accrued interest thereon) to be, and the unpaid principal amount of the Loans
shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower; provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the Borrower, without
any notice to any Obligor or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the unpaid principal amount of the
Loans (together with accrued interest thereon) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
Section . Notice of Default.
The Agent shall give notice to the Borrower under Section 6.01(c)
promptly upon being requested to do so by any Bank and shall thereupon notify
all the Banks thereof.
ARTICLE
THE AGENT AND THE CO-AGENTS
Section . Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and perform such
duties under the Financing Documents as are expressly delegated to the Agent
by the terms thereof, together with all such powers as are reasonably
incidental thereto. The provisions of this Article 7 (other than Section
7.10) are solely for the benefit of the Agent, the Banks and the Issuing
Banks, and the Borrower shall not have rights as a third party beneficiary or
otherwise under this Article 7 (other than Section 7.10).
Section . Agent and Affiliates.
PNC shall have the same rights and powers under the Financing Documents
as any other Bank and may exercise or refrain from exercising the same as
though it were not the Agent. PNC and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary, or affiliate of the Borrower, as if it were not
the Agent hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, the Agent or its affiliates
may receive information regarding any Obligor or its affiliates (including
information that may be subject to confidentiality obligations in favor of
such Obligor or such affiliate) and acknowledge that the Agent and its
affiliates shall be under no obligation to provide such information to them.
Section . Action by Agent.
The obligations of the Agent under the Financing Documents are only
those expressly set forth therein. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Financing Document, the
Agent shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Bank or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Financing Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Financing
Documents with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties. The
Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Financing Documents that the Agent is
required to exercise as directed in writing by the Required Banks (or such
other number or percentage of the Banks as shall be expressly provided for
herein or in the other Financing Documents); provided that the Agent shall
not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Agent to liability or that is contrary to any
Financing Document or applicable law. Further, the Agent shall not, except as
expressly set forth herein and in the other Financing Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its affiliates that is
communicated to or obtained by the Person serving as the Agent or any of its
affiliates in any capacity.
Section . Consultation with Experts; Delegation of Duties.
The Agent may consult with legal counsel (who may be counsel for an
Obligor), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
The Agent may execute any of its duties under this Agreement or any other
Financing Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct by
the Agent.
Section . Liability of Agent.
Neither the Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection herewith (a) with the consent or at the
request of the Required Banks or (b) in the absence of its own gross
negligence or willful misconduct as determined in a final order by a court of
competent jurisdiction. Neither the Agent nor any of its affiliates nor any
of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with the Financing
Documents or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article 3, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
the Financing Documents or any other instrument or writing furnished in
connection therewith.
Section . Reliance by the Agent.
() The Agent shall be entitled to rely, and shall not incur any
liability by acting in reliance, upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, facsimile
transmission, email communication or similar writing) believed by it to be
genuine or to be signed by the proper party or parties. The Agent shall be
fully justified in failing or refusing to take any action under any Financing
Document unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.
(b) For purposes of determining compliance with the conditions
specified in
Section 3.01, each Bank that has signed this Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented
to or approved by or acceptable or satisfactory to a Bank.
Section . Notice of Default.
The Agent shall be deemed not to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Agent for the account
of the Banks, unless the Agent shall have received written notice from a Bank
or the Borrower referring to this Agreement, describing such Default and
stating that such notice is a "notice of default." The Agent will notify the
Banks of its receipt of any such notice. The Agent shall take such action
with respect to such Default as may be directed by the Required Banks in
accordance with Article 6; provided, however, that unless and until the Agent
has received any such direction, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to
such Default as it shall deem advisable or in the best interest of the Banks.
Section . Indemnification.
Each Bank shall indemnify the Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by
the Borrower), against any Indemnified Liabilities (except for any such
Indemnified Liabilities that result from such Indemnitees' gross negligence
or willful misconduct, provided that no action taken in accordance with the
direction of the Required Banks shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section), in each case
ratably in accordance with its Percentage (or in the event that the aggregate
Commitments have expired or otherwise terminated, in accordance with its pro
rata share of the aggregate Outstanding Committed Exposure of all Banks).
Section . Credit Decision.
Each Bank acknowledges that it has, independently and without reliance
upon the Agent, its affiliates or any other Bank, and based on such documents
and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Bank acknowledges that
neither the Agent, its affiliates nor any other Bank has made any
representation or warranty to it, and that no act by the Agent hereinafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of any Obligor or any affiliate thereof, shall be deemed to
constitute any representation or warranty by the Agent or its affiliates to
any Bank as to any matter, including whether the Agent or its affiliates have
disclosed material information in their possession. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent,
its affiliates or any other Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under the Financing Documents.
Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Agent herein, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Obligors or any of their
respective affiliates which may come into the possession of the Agent or its
affiliates.
Section . Successor Agent.
The Agent may resign at any time by giving notice thereof to the Banks
and the Borrower. Upon any such resignation, the Required Banks shall have
the right, with the prior consent (such consent not to be unreasonably
withheld) of the Borrower provided that no Default has occurred and is
continuing, to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks (with the Borrower's consent, to the
extent required), and shall have accepted such appointment, within 30 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of
at least $1,000,000,000.00. Upon the acceptance of its appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent.
Section . Additional Agents.
No Bank identified as a "syndication agent", "joint lead arranger" or
"joint book runner" on the facing page hereof, on the signature pages hereto
or otherwise herein shall have any right, power, obligation, liability,
responsibility or duty of any kind under the Financing Documents (except
those applicable to it in its capacity as a Bank) or any fiduciary
relationship with any other Bank.
ARTICLE
CHANGE IN CIRCUMSTANCES
Section . Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing:
() the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
() Banks having 50% or more of either the aggregate Commitments
or the aggregate principal amount of the affected Loans advise the Agent that
the Adjusted London Interbank Offered Rate, as determined by the Agent, will
not adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make Euro-Dollar Loans or to continue or convert outstanding Loans as or into
Euro-Dollar Loans shall be suspended and (ii) each outstanding Euro-Dollar
Loan shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the
Agent at least two Business Days before the date of any Euro-Dollar Borrowing
for which a Notice of Borrowing has previously been given that it elects not
to borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
Section . Illegality.
If after the date hereof, the adoption of any applicable law, rule or
regulation (including statutes, directives, guidelines and decisions), or any
change in any applicable law, rule or regulation (including statutes,
directives, guidelines and decisions), or any change in the interpretation or
administration thereof by any governmental authority, central bank,
comparable agency, instrumentality, regulatory body, or other entity
exercising executive, legislative, judicial, taking, regulatory or
administrative powers or functions of or pertaining to the government charged
with the interpretation or administration thereof, or compliance by any Bank
(or its Applicable Lending Office) with any request or directive (whether or
not having the force of law) of any such governmental authority, central
bank, comparable agency, instrumentality, regulatory body, or other entity
exercising executive, legislative, judicial, taking, regulatory or
administrative powers or functions of or pertaining to the government
(provided however, that notwithstanding anything herein to the contrary, the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, regulations, guidelines or directives thereunder or issued in
connection therewith shall be deemed to have been enacted, adopted or issued
after the date of this Agreement, regardless of the date enacted, adopted or
issued (even if enacted, adopted or issued before the date hereof)) shall
make it unlawful or impossible for any Bank (or its Applicable Lending
Office) to make or fund any Euro-Dollar Loan, or maintain its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make or fund
Euro-Dollar Loans, or to continue or convert outstanding Loans as or into
Euro-Dollar Loans, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Applicable
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to
such Bank. If such notice is given, each Euro-Dollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day
of the then current Interest Period applicable to such Euro-Dollar Loan if
such Bank may lawfully continue to maintain and fund such Loan as a Euro-
Dollar Loan or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to
such day.
Section . Increased Cost and Reduced Return.
() If after the date hereof, in the case of any Committed Loan, Swingline
Loan, Letter of Credit, Reimbursement Obligation or any obligation to make
Committed Loans or to issue Letters of Credit, the adoption of any applicable
law, rule or regulation, including without limitation any statute, directive,
guideline and decision, or any change in any applicable law, rule or
regulation (including statutes, directives, guidelines and decisions), or any
change in the interpretation or administration thereof by governmental
authority, central bank, comparable agency, instrumentality, regulatory body,
or other entity exercising executive, legislative, judicial, taking,
regulatory or administrative powers or functions of or pertaining to the
government, charged with the interpretation or administration thereof, or
compliance by any Bank (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such governmental
authority, central bank, comparable agency, instrumentality, regulatory body,
or other entity exercising executive, legislative, judicial, taking,
regulatory or administrative powers or functions of or pertaining to the
government adopted after the date hereof (provided however, that
notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, regulations,
guidelines or directives thereunder or issued in connection therewith shall
be deemed to have been enacted, adopted or issued after the date of this
Agreement, regardless of the date enacted, adopted or issued (even if
enacted, adopted or issued before the date hereof)) shall impose, modify or
deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable Lending
Office) or on the London interbank market any other condition affecting its
Euro-Dollar Loans, its Note, its Reimbursement Obligations or its obligation
to make Euro-Dollar Loans or issue Letters of Credit and the result of any of
the foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan or issuing any Letter
of Credit, or to reduce the amount of any sum received or receivable by such
Bank (or its Applicable Lending Office) under this Agreement or under its
Note, if any, with respect thereto, by an amount deemed by such Bank to be
material, then, within 30 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or reduction; provided,
however, that the Borrower shall not be obligated to pay any such amounts in
respect of taxes, which shall be governed exclusively by Section 8.04.
() If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law rule or regulation, 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 any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent) as a consequence
of such Bank's obligations hereunder to a level below that which such Bank
(or its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 30 days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
() Each Bank will use its best efforts promptly to notify the Borrower
and the Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section 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 judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. Notwithstanding the foregoing, the
Borrower shall not be obligated to pay any amounts contemplated by this
Section 8.03 which were incurred by such Bank more than 180 days prior to the
date of such demand, such 180 day period to be extended to the extent that
the event entitling such Bank to compensation pursuant to this Section is
retroactive.
Section . Taxes.
() Any and all payments by the Borrower to or for the account of any
Bank or the Agent hereunder or under any Note shall be made free and clear of
and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, (i) in the case of each Bank and the Agent,
taxes imposed on or measured by its income or profits (however denominated)
and franchise taxes or similar taxes imposed on it on the basis of or
measured by its net income or net profits (A) by the jurisdiction under the
laws of which such Bank or the Agent (as the case may be) is organized or has
its principal office, or any political subdivision thereof, (B) by the
jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof and (C) by any jurisdiction solely as a result of a
present or former connection between such Bank or Agent and such jurisdiction
(other than any such connection arising solely from such Bank or Agent having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement), (ii) any branch profits taxes imposed by the
United States or any similar tax imposed on or measured by the withdrawal or
diminution of earnings associated with a branch or office located in any
other jurisdiction imposed by such other jurisdiction, (iii) any withholding
tax that is imposed on amounts payable to such Bank or Agent at the time it
becomes a party hereto (or designates a new lending office), except to the
extent that such Bank or Agent (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 8.04 and (iv) any tax that is imposed as a result of a
Bank's or Agent's failure to comply with Sections 1471 through 1474 of the
Internal Revenue Code as in effect as of the date of this Agreement and any
regulations or official guidance thereunder (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Bank or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 8.04) such Bank or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority, or other
authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment thereof.
() In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note
or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as "Other Taxes").
() The Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, but excluding any Other Taxes imposed as a
result of a transfer or sale by a Bank of a participation in any of its
interest in a Loan. This indemnification shall be made within 30 days from
the date such Bank or the Agent (as the case may be) makes demand therefor.
() (i) Each Bank (or Assignee or Participant of a Bank) and Agent
shall deliver such forms or other documentation prescribed by applicable law
or reasonably requested by the Borrower or Agent as will enable the Borrower
or Agent to determine (A) whether or not such Bank is subject to withholding
or information reporting and (B) if applicable, the required rate of
withholding.
(ii) Without limiting the generality of the foregoing:
(A) Each Bank (or Assignee or Participant of a Bank) and Agent
that is a "United States person" within the meaning of Section 7701(a)(30) of
the Internal Revenue Code shall deliver to the Borrower and the Agent two (2)
duly completed and executed originals of Internal Revenue Service Form W-9 or
such other documentation or information prescribed by applicable laws or
reasonably requested by the Borrower or the Agent as will enable the Borrower
or the Agent, as the case may be, to determine whether or not such Bank is
subject to backup withholding or information reporting requirements.
(B) Each Bank (or Assignee or Participant of a Bank) and Agent
that is not incorporated under the laws of the United States of America or a
state thereof (each, a "Foreign Bank") agrees that it will deliver to each of
the Borrower and the Agent two (2) duly completed applicable valid
Withholding Certificates certifying its status (i.e. U.S. or foreign person)
and, if applicable, making a claim of reduced, or exemption from, U.S.
withholding tax on the basis of an income tax treaty or an exemption provided
by the Internal Revenue Code. The term "Withholding Certificate" means a
Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and
certifications as required under * 1.1441-1(e)(2) and/or (3) of the Treasury
Regulation (the "Regulations") or otherwise under the Internal Revenue Code;
a statement described in * 1.871-14(c)(2)(v) of the Regulations; a duly
executed certificate to the effect that such Foreign Bank is not (1) a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (2)
a ten-percent shareholder (within the meaning of Section 881(c)(3)(B) of the
Internal Revenue Code) of the Borrower or (3) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Internal Revenue Code;
any other applicable certificates under the Internal Revenue Code or
Regulations; and, for purposes of Section 8.04(d)(iii), the forms and
documentation required under Section 8.04(d)(ii)(A).
(iii)Each Bank, Agent, Assignee or Participant required to deliver to
the Borrower and the Agent a Withholding Certificate pursuant to the
preceding sentence shall deliver such valid Withholding Certificate as
follows: (i) each Bank and Agent which is a party hereto on the Closing Date
shall deliver such valid Withholding Certificate no later than the earlier of
(A) the date such Bank or Agent becomes a party to this Agreement or (B) at
least five (5) Business Days prior to the first date on which any interest or
fees are payable hereunder to the account of such Bank or Agent; (ii) each
Assignee or Participant shall deliver such valid Withholding Certificate at
least five (5) Business Days before the effective date of such assignment or
participation (unless the Agent and Borrower in their sole discretion shall
permit such assignee or participant to deliver such valid Withholding
Certificate less than five (5) Business Days before such date in which case
it shall be due on the date specified by the Agent or Borrower). Each Bank,
Agent, Assignee or Participant which so delivers a valid Withholding
Certificate shall also deliver to each of the Borrower and the Agent two (2)
additional copies of such Withholding Certificate (or a successor form) on or
before the date that such Withholding Certificate expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent
Withholding Certificate so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Borrower
or the Agent. Notwithstanding the submission of a Withholding Certificate
claiming a reduced rate of or exemption from U.S. withholding tax, the Agent
and the Borrower shall be entitled to withhold United States federal income
taxes at the full 30% withholding rate if in its reasonable judgment it is
required to do so under the due diligence requirements imposed upon a
withholding agent under * 1.1441-7(b) of the Regulations. Further, the Agent
and the Borrower are indemnified under * 1.1461-1(e) of the Regulations
against any claims and demands of any Bank, Agent, or Assignee or Participant
of a Bank for the amount of any tax it deducts and withholds in accordance
with regulations under * 1441 of the Internal Revenue Code. If the form
provided by a Bank or Agent at the time such Bank or Agent first becomes a
party to this Agreement indicates a United States withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.04.
() For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.04(d) (unless
such failure is due to a change in treaty, law or regulation, or any change
in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Bank shall not be entitled to indemnification
under Section 8.04, including the receipt of additional amounts pursuant to
Section 8.04(a), with respect to Taxes that are attributable to such failure;
provided that should a Bank, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such
steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes.
() Each Bank, Agent, Assignee and Participant shall promptly notify
the Borrower and the Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction. If the Borrower is
required to pay additional amounts to or for the account of any Bank pursuant
to this Section 8.04, then such Bank will change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Bank, is not otherwise disadvantageous to such Bank.
Section . Base Rate Loans Substituted for Affected Fixed Rate Loans.
() If (i) the obligation of any Bank to make, or continue or convert
outstanding Loans as or into, Euro-Dollar Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03
or Section 8.04 with respect to its Euro-Dollar Loans and the Borrower shall,
by at least five Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section 8.05(a) shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, all Loans which would otherwise be made by such Bank as (or
continued as or converted into) Euro-Dollar Loans shall be made or continued
instead as Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans, of the other Banks).
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer exist, the principal amount of each such Base Rate Loan that
was a Euro-Dollar Loan shall be converted into a Euro-Dollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Banks; provided that any such Bank shall be
obligated to provide such notice when such circumstances no longer exist.
() If (i) any Bank has demanded compensation under Section 8.03 with
respect to its Euro-Dollar Loans, or (ii) the Borrower has become obligated
to pay any Taxes or other amounts to or for the account of any Bank pursuant
to Section 8.04, and the Borrower shall, by at least five Business Days'
prior notice to the Banks through the Agent, have elected that the provisions
of this Section 8.05(b) shall apply to all of the Banks, then the Borrower
shall, on the fifth Business Day following such notice, prepay in full the
then outstanding principal amount of each outstanding Euro-Dollar Loan of
each Bank, together with accrued interest thereon.
Section . Substitution of Banks.
If (a) any Bank has demanded compensation under Section 8.03, (b) the
Borrower has become obligated to pay any Taxes or other amounts to or for the
account of any Bank pursuant to Section 8.04 (such Bank, in either clause (a)
or (b), an "Increased Cost Bank"), (c) any Bank has become a Defaulting Bank
and has failed to cure its default within five days after the Borrower's
request that it cure such default or (d) in connection with any proposed
amendment, modification, termination, waiver or consent contemplated by
Sections 9.05(b) to 9.05(f), inclusive, the consent of Required Banks shall
have been obtained but the consent of one or more of such other Banks (each a
"Non-Consenting Bank") whose consent is required has not been obtained, in
each case, then, with respect to each such Increased Cost Bank, Defaulting
Bank or Non-Consenting Bank (each a "Selling Bank"), the Borrower shall have
the right, with the assistance of the Agent, to seek one or more banks or
other institutions satisfactory to the Borrower and the Agent (collectively,
the "Purchasing Banks") willing to purchase the Selling Bank's Loans, its
participation interests of any unpaid Reimbursement Obligations and Swingline
Loans and assume the Commitment of the Selling Bank, all on the terms
specified in this Section 8.06. The Selling Bank shall be obligated (and
hereby irrevocably agrees) to sell its Loans and its participation interests
in any unpaid Reimbursement Obligations and Swingline Loans to such
Purchasing Bank or Banks (which may include one or more of the Banks) in
accordance with the provisions of Section 9.06(c) within 5 days after
receiving notice from the Borrower requiring it to do so, at an aggregate
price equal to the outstanding principal amount of Loans held by the Selling
Bank and any amounts funded by the Selling Bank with respect to its
participation interests in unpaid Reimbursement Obligations or Swingline
Loans, plus unpaid interest accrued thereon to but excluding the date of
sale. In connection with any such sale, and as a condition thereof, the
Borrower shall pay to the Selling Bank all fees accrued for its account
hereunder to but excluding the date of such sale, plus, if demanded by the
Selling Bank at least two Business Days prior to such sale, (i) the amount of
any indemnity which would be due to the Selling Bank under Section 2.14 if
the Borrower had prepaid the outstanding Euro-Dollar Loans of the Selling
Bank on the date of such sale and (ii) any additional compensation, Taxes or
other amounts accrued for its account under Section 8.03 or Section 8.04, as
applicable, to but excluding, said date (it being understood that the Selling
Bank shall retain its right to be compensated after the date of such sale for
any such accrued amounts remaining unpaid) and shall pay to the Agent the
administrative fee referred to in Section 9.06(c). Upon such sale, the
Purchasing Bank or Banks shall assume the Commitment of the Selling Bank, and
the Selling Bank shall be released from its obligations hereunder to a
corresponding extent, and, such Purchasing Bank shall be a Bank party to this
Agreement, shall be deemed to be an Assignee hereunder and shall have all the
rights and obligations of a Bank with a Commitment equal to its ratable share
of the Commitment of the Selling Bank. Upon the consummation of any sale
pursuant to this Section 8.06, the Selling Bank, the Agent and the Borrower
shall make appropriate arrangements so that, if required, each Purchasing
Bank receives a new Note. In the event such Selling Bank is a Non-Consenting
Bank, each Purchasing Bank shall consent, at the time of such assignment, to
each matter in respect of which such Selling Bank was a Non-Consenting Bank.
Upon the prepayment of all amounts owing to any Selling Bank and the
termination of such Selling Bank's Commitments, if any, such Selling Bank
shall no longer constitute a "Bank" for purposes hereof; provided, any rights
of such Selling Bank to indemnification hereunder shall survive as to such
Selling Bank. If the Selling Bank is also an LC Issuing Bank, its obligation
to issue, amend, renew or extend Letters of Credit shall terminate
concurrently with such sale and its status as an LC Issuing Bank (but not its
right to indemnification hereunder) shall terminate when the LC Liabilities
relating to all Letters of Credit issued by it have been reduced to zero or
have been fully cash collateralized or supported by other letters of credit,
in each case, in a manner satisfactory to the LC Issuing Bank.
ARTICLE
MISCELLANEOUS
Section . Notices.
Any notice, request, demand, direction or other communication (for
purposes of this Section 9.01 only, a "Notice") to be given to or made upon
any party hereto under any provision of this Agreement shall be given or made
by telephone or in writing (which includes means of electronic transmission
(i.e., "e-mail") or facsimile transmission or by setting forth such Notice on
a site on the World Wide Web (a "Website Posting") if Notice of such Website
Posting (including the information necessary to access such site) has
previously been delivered to the applicable parties hereto by another means
set forth in this Section 9.01) in accordance with this Section 9.01. Any
such Notice must be delivered to the applicable parties hereto at the
addresses and numbers set forth under their respective names on Schedule 3
hereof or in accordance with any subsequent unrevoked Notice from any such
party that is given in accordance with this Section 9.01. Any Notice shall
be effective:
(a) In the case of hand-delivery, when delivered;
(b) If given by mail, four days after such Notice is deposited
with the United States Postal Service, with first-class postage prepaid,
return receipt requested;
(c) In the case of a telephonic Notice, when a party is contacted
by telephone, if delivery of such telephonic Notice is confirmed no later
than the next Business Day by hand delivery, a facsimile or electronic
transmission, a Website Posting or overnight courier delivery of a
confirmatory notice (received at or before noon on such next Business Day);
(d) In the case of a facsimile transmission, when sent to the
applicable party's facsimile machine's telephone number if the party sending
such Notice receives confirmation of the delivery thereof from its own
facsimile machine;
(e) In the case of electronic transmission, when actually
received;
(f) In the case of a Website Posting, upon delivery of a Notice of
such posting (including the information necessary to access such web site) by
another means set forth in this Section 9.01; and
(g) If given by any other means (including by overnight courier),
when actually received.
Any Bank giving a Notice to the Borrower or a Subsidiary shall concurrently
send a copy thereof to the Agent, and the Agent shall promptly notify the
other Banks of its receipts of such Notices.
Section . No Waivers.
No failure or delay by any Credit Party in exercising any right, power
or privilege under any Financing Document shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
Section . Expenses; Indemnification.
() The Borrower shall pay (i) all reasonable out-of-pocket expenses of
the Agent and its affiliates, including reasonable fees and disbursements of
special counsel for the Agent, in connection with the preparation and
administration of the Financing Documents, any waiver or consent thereunder
or any amendment thereof or any Default thereunder or any event or condition
reasonably alleged by any Credit Party to be a possible Default thereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred
by the Agent, its affiliates and each Bank, including reasonable fees and
disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
() The Borrower agrees, in addition to but not in duplication of any
other indemnity otherwise provided herein, to indemnify each Credit Party and
its affiliates and the respective directors, officers, agents and employees
thereof (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened and
relating to or arising out of the Financing Documents or any actual or
proposed use of proceeds of Loans or the Letters of Credit hereunder (all of
the foregoing in subsection (a) above and this subsection (b), collectively,
the "Indemnified Liabilities"); provided that no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence
or willful misconduct as determined in a final order by a court of competent
jurisdiction.
Section . Set-Off; Sharing of Set-offs.
Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive (a) payment of a proportion of the
aggregate amount of principal and interest due with respect to any Loan held
by it which is greater than the proportion received by any other Bank in
respect of the aggregate amount of principal and interest due with respect to
any Loan held by such other Bank or (b) payment of a proportion of its
participation in the LC Liabilities or Swingline Loans which is greater that
the proportion received by any other Bank in respect of its participation in
the LC Liabilities or Swingline Loans, as the case may be, the Bank receiving
such proportionately greater payment shall purchase such participations in
the Loans, the LC Liabilities and the Swingline Loans, as the case may be,
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to
the Loans held by the Banks shall be shared by the Banks pro rata and all
such payments with respect to participations in the LC Liabilities and the
Swingline Loans shall be shared pro rata by the Banks participating therein;
provided that nothing in this Section shall impair the right of any Credit
Party to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Loans and the LC
Liabilities. The Borrower agrees, to the fullest extent it may effectively
do so under applicable law, that any holder of a participation in a Loan or
the LC Liabilities, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
Section . Amendments and Waivers.
Any provision of this Agreement, the Notes or the Subsidiary Guaranty
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Banks (and, (i)
if the rights or duties of the Agent, the Swingline Bank or any LC Issuing
Bank are affected thereby, by the Agent, the Swingline Bank or such LC
Issuing Bank, as the case may be or (ii) in the case of the Subsidiary
Guaranty Agreement, each Subsidiary Guarantor); provided that no such
amendment or waiver shall, unless signed by all the Banks directly and
adversely affected thereby, (a) increase the Commitment of any Bank over the
amount then in effect (it being understood and agreed that a waiver of any
Default shall not constitute an increase in any Commitment of any Bank), (b)
reduce the principal of, or rate of interest on, any Loan or any
Reimbursement Obligation, or of any fees hereunder (other than as a result of
waiving the applicability of any post-Default increase in interest rates or
fees) (provided that amendments to the definitions of Consolidated Debt and
Consolidated EBITDA shall only require the consent of Required Banks),
(c) postpone the date fixed for any payment of principal of or interest on
any Loan, any Reimbursement Obligation or any fees hereunder or for any
termination of any Commitment, (d) amend this Section or modify the
definition of Required Banks, (e) change the percentage of the Commitments,
the Outstanding Committed Exposures, the LC Liabilities or of the aggregate
unpaid principal amount of the Loans, in each case, which shall be required
for the Banks or any of them to take any action under this Section or any
other provision of the Financing Documents, (f) change the manner of
application of any payments made under this Agreement or the Notes or (g)
amend, modify or waive any provision of Sections 2.06, 2.11, 9.03, 9.04 or
9.12. Notwithstanding anything to contrary contained herein, Revolving Loan
Modification Offers and Permitted Amendments shall be permitted in accordance
with this paragraph, regardless of the preceding provisions of this Section
9.05. Borrower may make one or more offers (each, a "Revolving Loan
Modification Offer") to all the Banks to make one or more Permitted
Amendments (as defined below). Permitted Amendments shall become effective
only with respect to the Loans and Commitments of the Banks that accept the
applicable Revolving Loan Modification Offer (such Banks, the "Accepting
Banks") and, in the case of any Accepting Bank, only with respect to such
Bank's Loans and Commitments as to which such Bank's acceptance has been
made. The Borrower and each Accepting Bank shall execute and deliver to the
Agent a loan modification agreement (a "Loan Modification Agreement") and
such other documentation as the Agent shall reasonably specify to evidence
the acceptance of the Permitted Amendments and the terms and conditions
thereof. The Agent shall promptly notify each Bank as to the effectiveness
of each Loan Modification Agreement. Each of the parties hereto hereby
agrees that, upon the effectiveness of any Loan Modification Agreement, this
Agreement shall be deemed amended to the extent (but only to the extent)
necessary to reflect the existence and terms of the Permitted Amendment
evidenced thereby and only with respect to the Loans and Commitments of the
Accepting Banks (including any amendments necessary to treat the Loans and
Commitments of the Accepting Banks as Loans and/or Commitments, it being
understood that all borrowings and repayments will be made pro rata between
all Loans (provided that to the extent any Permitted Amendment extends the
final maturity of the Commitments of the Accepting Banks, the Outstanding
Committed Exposure and related obligations may be repaid on the Termination
Date on a non-ratable basis with the Commitments and outstanding Committed
Exposure of the Accepting Banks). "Permitted Amendments" shall be (i) an
extension of the final maturity date of the applicable Loans and/or
Commitments of the Accepting Banks, (ii) an extension of the scheduled
maturity of the applicable Loans and Commitments of the Accepting Banks,
(iii) a change in rate of interest (including a change to the Base Rate
Margin, Euro-Dollar Margin and any provision establishing a minimum rate),
premium, LC Fees or other amount with respect to the applicable Loans and/or
Commitments of the Accepting Banks and/or a change in the fees to the
Accepting Banks, (iv) a change in the permitted maturity date of Letters of
Credit or the obligation to provide cash collateral for Letters of Credit
which expire beyond the Termination Date, so long as participations in such
Letters of Credit by non-Accepting Banks will terminate no later than the
Termination Date or the LC Liabilities in respect thereof which non-Accepting
Banks have participations in will be cash collateralized on the Termination
Date and (v) any other amendment to a Loan Document that is made to give
effect to any of the foregoing amendments described in the preceding clauses
(i) to (iii) provided, that no Loan Modification Agreement or Permitted
Amendment under this Section 9.05 shall (x) provide for any additional or
more restrictive covenants for the benefit of the Accepting Banks unless such
additional provisions are for the benefit of all of the Banks under this
Agreement, including the non-Accepting Banks; provided, that additional or
more restrictive covenants may be added for the benefit of the Accepting
Banks for the periods after the Termination Date or (y) provide for
guaranties or any collateral for the benefit of the Accepting Banks that are
not identical to or pari passu to the guaranties or collateral provided for
the benefit of the non-Accepting Banks.
Section . Successors and Assigns.
() The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the Notes, if any, without the prior
written consent of all Banks.
() Any Bank may at any time, grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Outstanding Committed Exposure. In the event of any
such grant by a Bank of a participating interest to a Participant, such Bank
shall remain responsible for the performance of its obligations hereunder,
and the Borrower and the other Credit Parties shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this Agreement
described in clauses (a), (b) or (c) of Section 9.05 or the immediately
succeeding sentence without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided in its
participation agreement and subject to subsection (e) of this
Section 9.06, be entitled to the benefits of Article 8 with respect to
its participating interest to the same extent as if it were a Bank hereunder
(and subject to the obligations imposed on Banks thereunder), provided that
such Participant and its respective participation are recorded in the
Register in accordance with Section 9.06(f) as if such Participant were a
Bank.
() Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or, subject to the next sentence, a
proportionate part of all, of its rights and obligations under this Agreement
and the Notes, if any, held by such Bank and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit B hereto (an "Assignment and Assumption
Agreement") executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent (which shall not be unreasonably withheld
or delayed and such consent to be deemed given if not objected to within five
(5) Business Days of request therefor) of the Borrower, each LC Issuing Bank,
the Swingline Bank and the Agent; provided that (i) if an Assignee is another
Bank, an affiliate of a Bank, or an Approved Fund, the consent of the
Borrower, each LC Issuing Bank, the Swingline Bank and the Agent shall not be
required unless all or any portion of such transferor Bank's Commitment,
participation in any Letter of Credit or obligation to participate in any
Swingline Loan is being assigned and (ii) if an Event of Default has occurred
and is continuing, the consent of the Borrower shall not be required. No
assignment of only a proportionate part of the rights and obligations of a
Bank under this Agreement and the Notes, if any, held by such Bank may be
made unless each of (A) the part assigned (i.e., the "Assigned Amount" set
forth in the related Assignment and Assumption Agreement) and (B) the part
retained by the transferor Bank and any of its affiliates equals
$5,000,000.00 or any larger integral multiple of $1,000,000.00. Upon (1)
execution and delivery to the Agent of an Assignment and Assumption
Agreement, (2) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, and (3) receipt by the Agent of an administrative fee in the amount
of $3,500 from such transferor Bank or such Assignee for processing such
assignment (if such Assignee is not another Bank, an affiliate of a Bank or
an Approved Fund), such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with a Commitment as set
forth in such Assignment and Assumption Agreement, and the transferor Bank
shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. If
the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United
States Federal income taxes in accordance with Section 8.04.
() Any Bank may at any time pledge or assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
() No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or
Section 8.04 than such Bank would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section 8.02, Section
8.03 or Section 8.04 requiring such Bank to designate a different Applicable
Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
() The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its office in Pittsburgh, Pennsylvania a copy of
each Assignment and Assumption Agreement delivered to it and a register for
the recordation of the names and addresses of the Banks, and the Commitments
of, and principal amount of the Loans and LC Liabilities owing to, each Banks
pursuant to the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive, and the Borrower, the Agent and the
Banks may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Agent, at any reasonable time and from
time to time upon reasonable prior notice.
() Notwithstanding anything to the contrary contained herein, if at
any time PNC assigns all of its Commitment and Loans pursuant to subsection
(c) above and resigns as Agent pursuant to Section 7.10, PNC may, upon five
(5) Business Days' notice to the Borrower, resign as Swingline Bank. In the
event of any such resignation as Swingline Bank, the Borrower shall be
entitled to appoint from among the Banks a successor Bank (with the consent
of such Bank) as Swingline Bank hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of
PNC as Swingline Bank. If PNC resigns as Swingline Bank, it shall retain all
the rights of the Swingline Bank provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Banks to make Base Rate Loans
or fund participations in outstanding Swingline Loans pursuant to Section
2.04(f).
Section . Collateral.
Each Credit Party represents to each other Credit Party that it in good
faith is not relying upon any "margin stock" (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
Section . Governing Law; Submission to Jurisdiction.
This Agreement and each Note shall be governed by and construed in
accordance with the laws of the State of New York. The Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York State court sitting
in New York City for purposes of all legal proceedings arising out of or
relating to the Financing Documents or the transactions contemplated thereby.
The Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Section . Counterparts; Integration.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement constitutes the
entire agreement and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or written, relating to
the subject matter hereof.
Section . Waiver of Jury Trial.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY FINANCING DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY FINANCING DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
Section . Confidentiality.
Each Credit Party agrees to keep confidential this Agreement and any
proprietary or financial information obtained by such Credit Party based on a
review of the books and records of the Borrower or any Subsidiary pursuant to
Section 5.06 and any other information to the extent such information has
been stated by the Borrower to be confidential; provided that nothing herein
shall prevent any Credit Party from disclosing this Agreement or such
information (a) to any other Credit Party in connection with the transactions
contemplated by the Financing Documents, (b) to the officers, directors,
employees, agents, attorneys and accountants of such party and its affiliates
who have a need to know such information in accordance with customary banking
practices and who receive such information having been made aware of the
restrictions set forth in this Section, (c) upon the order of any court or
administrative agency, (d) upon the requests or demand of any regulatory
agency or authority having jurisdiction over such party or its affiliates,
(e) which has been publicly disclosed, (f) which has been obtained from any
Person other than the Borrower and its Subsidiaries, provided that such
Person is not known to it to be bound by a confidentiality agreement with the
Borrower or its Subsidiaries or known to it to be otherwise prohibited from
transmitting the information to it by a contractual, legal or fiduciary
obligation, (g) in connection with the exercise of any remedy under the
Financing Documents or (h) to any actual or proposed participant, assignee or
swap counterparty of all or any of its rights under the Financing Documents,
provided that such proposed participant or assignee shall have agreed in
writing, for the benefit of the Borrower as a third-party beneficiary, to be
bound by the provisions of this Section.
Section . Survival.
All indemnities set forth herein, including, without limitation, in
Section 2.14, Section 2.16, Section 7.08, Section 8.03, Section 8.04 and
Section 9.03, shall survive the execution and delivery of this Agreement, the
making of the Loans, the issuance of the Letters of Credit, the repayment of
the Loans, LC Liabilities and other obligations under the Financing Documents
and the expiration or other termination of the Commitments hereunder.
Section . Patriot Act Notice.
Each Bank and the Agent (for itself and not on behalf of any Bank)
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Patriot Act"), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address
of the Borrower and other information that will allow such Bank or the Agent,
as applicable, to identify the Borrower in accordance with the Patriot Act.
1
PRN 559499
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written
CON-WAY INC.
By: /s/ Stephen L. Bruffett
Name: Stephen L. Bruffett
Title: Chief Financial Officer and
Executive Vice President
2855 Campus Drive
Suite 300
San Mateo, CA 94403
Facsimile number: 650-378-5203
Telephone number: 650-378-5200
PRN 559499
[SIGNATURE PAGE TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION
in its capacity as a Bank, as an LC Issuing
Bank, as the Swingline Bank and as the Agent
By: /s/ Philip K. Liebscher
Name: Philip K. Liebscher
Title: Senior Vice President
PNC Firstside Center
PNC Agency Services
500 First Avenue
Pittsburgh, PA 15219
Telephone: 412-768-0423
Facsimile: 412-705-2006
PRN 559499
[SIGNATURE PAGE TO CREDIT AGREEMENT]
BANKS:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Edward B. Hanson
Name: Edward B. Hanson
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Daniel R. Petrick
Name: Daniel R. Petrick
Title: Senior Vice President
ROYAL BANK OF CANADA
By: /s/ James F. Disher
Name: James F. Disher
Title: Authorized Signatory
RBC BANK USA
By: /s/ Richard Marshall
Name: Richard Marshall
Title: Market Executive - National Division
MORGAN STANLEY BANK, N.A.
By: /s/ Ryan Vetsch
Name: Ryan Vetsch
Title: Authorized Signatory
GOLDMAN SACHS BANK USA
By: /s/ Mark Walton
Name: Mark Walton
Title: Authorized Signatory
THE BANK OF NEW YORK MELLON
By: /s/ Robert Besser
Name: Robert Besser
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Annabella Guo
Name: Annabella Guo
Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Frank J. Jancar
Name: Frank J. Jancar
Title: Vice President
HSBC BANK USA, N.A.
By: /s/ Katherine M. Wolfe
Name: Katherine M. Wolfe
Title: Vice President
PRN 559499
[SIGNATURE PAGE TO CREDIT AGREEMENT]