Published CUSIP Deal Number: 81154LAA5
Published CUSIP Revolver Number: 81154LAB3
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 10, 2008
among
SEABOARD CORPORATION
and
CERTAIN SUBSIDIARIES OF SEABOARD COPORATION,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and an L/C Issuer,
and
The Other Lenders Party Hereto
BANK OF NOVA SCOTIA,
as the Syndication Agent
SUNTRUST BANK
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC
and
SCOTIA CAPITAL, INC.,
as
Joint Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
Section Page
ARTICLE I.
AMENDMENT AND RESTATEMENT; DEFINITIONS AND ACCOUNTING TERMS
1.01 Amendment and Restatement 1
1.02 Defined Terms 3
1.03 Other Interpretive Provisions 28
1.04 Accounting Matters 29
1.05 Rounding 30
1.06 Exchange Rates; Currency Equivalents 30
1.07 Additional Alternative Currencies 30
1.08 Change of Currency 31
1.09 Times of Day 32
1.10 Letter of Credit Amounts 32
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans 32
2.02 Borrowings, Conversions and Continuations of Committed
Loans 32
2.03 Letters of Credit 35
2.04 Swing Line Loans 44
2.05 Prepayments 47
2.06 Termination or Reduction of Commitments 48
2.07 Repayment of Loans 49
2.08 Interest 49
2.09 Fees 50
2.10 Computation of Interest and Fees; Retroactive
Adjustments of Applicable Rate 50
2.11 Evidence of Debt 51
2.12 Payments Generally; Administrative Agent's Clawback 52
2.13 Sharing of Payments by Lenders 54
2.14 Designated Borrowers 54
2.15 Increase in Commitments 56
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 57
3.02 Illegality 62
3.03 Inability to Determine Rates 62
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans 63
3.05 Compensation for Losses 65
3.06 Mitigation Obligations; Replacement of Lenders 66
3.07 Survival 66
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension 66
4.02 Conditions to all Credit Extensions 68
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with
Laws 69
5.02 Authorization; No Contravention 69
5.03 Governmental Authorization; Other Consents 69
5.04 Binding Effect 69
5.05 Financial Statements; No Material Adverse Effect 69
5.06 Litigation 70
5.07 No Default 70
5.08 Ownership of Property; Liens 70
5.09 Environmental Compliance 70
5.10 Insurance 71
5.11 Taxes 71
5.12 ERISA Compliance 71
5.13 Subsidiaries; Equity Interests 72
5.14 Margin Regulations; Investment Company Act 72
5.15 Disclosure 72
5.16 Compliance with Laws 72
5.17 Intellectual Property; Licenses, Etc 73
5.18 Taxpayer Identification Number; Other Identifying
Information 73
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5.19 Representations as to Foreign Obligors 73
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements 74
6.02 Certificates; Other Information 75
6.03 Notices 77
6.04 Payment of Obligations 77
6.05 Preservation of Existence, Etc 77
6.06 Maintenance of Properties 78
6.07 Maintenance of Insurance 78
6.08 Compliance with Laws 78
6.09 Books and Records 78
6.10 Inspection Rights 78
6.11 Use of Proceeds 79
6.12 Approvals and Authorizations 79
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Negative Pledge 79
7.02 Investments 80
7.03 Subsidiary Indebtedness 81
7.04 Fundamental Changes 82
7.05 Dispositions 83
7.06 Restricted Payments 84
7.07 Change in Nature of Business 85
7.08 Transactions with Affiliates 85
7.09 Burdensome Agreements 85
7.10 Use of Proceeds 85
7.11 Acquisitions 86
7.12 Financial Covenants 86
7.13 Amendments to Senior Note Agreements 86
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default 87
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8.02 Remedies Upon Event of Default 89
8.03 Application of Funds 89
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority 90
9.02 Rights as a Lender 90
9.03 Exculpatory Provisions 90
9.04 Reliance by Administrative Agent 91
9.05 Delegation of Duties 92
9.06 Resignation of Administrative Agent 92
9.07 Non-Reliance on Administrative Agent and Other Lenders 93
9.08 No Other Duties, Etc 93
9.09 Administrative Agent May File Proofs of Claim 93
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc 94
10.02 Notices; Effectiveness; Electronic Communication 95
10.03 No Waiver; Cumulative Remedies; Enforcement 97
10.04 Expenses; Indemnity; Damage Waiver 98
10.05 Payments Set Aside 100
10.06 Successors and Assigns 100
10.07 Treatment of Certain Information; Confidentiality 104
10.08 Right of Setoff 105
10.09 Interest Rate Limitation 106
10.10 Counterparts; Integration; Effectiveness 106
10.11 Survival of Representations and Warranties 106
10.12 Severability 106
10.13 Replacement of Lenders 107
10.14 Governing Law; Jurisdiction; Etc 107
10.15 Waiver of Jury Trial 108
10.16 No Advisory or Fiduciary Responsibility 108
10.17 Electronic Execution of Assignments and Certain
Other Documents 109
10.18 USA PATRIOT Act Notice 109
iv
10.19 Judgment Currency 109
SIGNATURES S-1
v
SCHEDULES
1.01 Mandatory Cost Formulae
1.01(a) Applicable Rate
1.01(b) Definition of "Excluded Transaction"
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.13 Subsidiaries; Other Equity Investments
5.18 Identification Numbers for Designated Borrowers
that are Foreign Subsidiaries
10.02 Administrative Agent's Office; Certain
Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E-1 Assignment and Assumption
E-2 Administrative Questionnaire
F Letter of Credit Information Report
G Designated Borrower Request and Assumption Agreement
H Designated Borrower Notice
I Opinion
J Company Guaranty
vi
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement") is entered into as of July 10, 2008 among SEABOARD
CORPORATION, a Delaware corporation (the "Company"), certain
Subsidiaries of the Company party hereto pursuant to Section 2.14
(each a "Designated Borrower" and, together with the Company, the
"Borrowers" and, each a "Borrower"), each lender from time to
time party hereto (collectively, the "Lenders" and individually,
a "Lender"), and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and an L/C Issuer.
Preliminary Statements
A. The Company, the lenders party thereto (the "Existing
Lenders") and Bank of America, N.A., as administrative agent, are
parties to that certain Credit Agreement among the Company, the
lenders party thereto, and Bank of America, N.A., as
administrative agent, dated as of December 3, 2004 (as amended,
amended and restated, extended, supplemented or otherwise
modified prior to the date hereof, the "Existing Five-Year Credit
Agreement"), pursuant to which the lenders party thereto (the
"Existing Lenders") originally agreed to provide the Company with
a revolving credit facility, including a letter of credit
subfacility and a swing line subfacility.
B. The Company has requested that the Existing Five-Year
Credit Agreement be amended and restated, subject to the
conditions set forth herein, in order to, among other things, (a)
add additional borrowers, (b) provide for credit extensions to be
in alternative currencies, (c) extend the maturity date of the
revolving credit facility, (d) increase the maximum aggregate
principal amount of the revolving credit facility from the
existing $100,000,000 to $300,000,000 (subject to an increase
option provided in this Agreement), and (e) make certain other
amendments to the Existing Five-Year Credit Agreement (the
"Amendment and Restatement").
C. The parties hereto are willing to amend and restate the
Existing Five-Year Credit Agreement and to make and continue to
make certain revolving credit and letter of credit facilities
available to the Company upon the terms and conditions set forth
herein
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
ARTICLE I.
AMENDMENT AND RESTATEMENT; DEFINITIONS AND ACCOUNTING TERMS
1.01 Amendment and Restatement. In order to facilitate the
Amendment and Restatement and otherwise to effectuate the desires
of the Company, the Administrative Agent and the Lenders agree as
follows:
(a) As of the Closing Date (immediately prior to the
effectiveness of this Agreement) (i) the Aggregate Commitments
under (and as defined in) the Existing Five-Year Credit Agreement
are $100,000,000, (ii) the principal amount of the Loans (as
defined in the Existing Five-Year Credit Agreement) outstanding
under the Existing Five-Year Credit Agreement is $0,
1
(iii) there are no Swing Line Loans (as defined in the Existing
Five-Year Credit Agreement) outstanding under the Existing Five-
Year Credit Agreement, and (iv) the aggregate amount of L/C
Obligations (as defined in the Existing Five-Year Credit
Agreement) outstanding under the Existing Five-Year Credit
Agreement is $56,470,803.67.
(b) Simultaneously with the Closing Date, but immediately
prior to giving effect to Section 1.01(e), the parties hereby
agree that (i) the Commitments of each Lender and its Applicable
Percentage shall be as set forth in Schedule 2.01, and the
Outstanding Amounts of Loans and Applicable Percentage of the
Outstanding Amounts of L/C Obligations under the Existing Five-
Year Credit Agreement (each as defined in the Existing Five-Year
Credit Agreement) shall be reallocated as outstanding Loans
hereunder in accordance with such Commitments, and the requisite
assignments shall be deemed to be made in such amounts among the
Lenders and from each Lender to each other Lender (and, if
necessary, to Lenders from Existing Lenders who elect not to
become Lenders under this Agreement or who reduce their
commitments in connection with this Agreement), with the same
force and effect as if such assignments were evidenced by
applicable Assignments and Assumptions (as defined in the
Existing Five-Year Credit Agreement) under the Existing Five-Year
Credit Agreement, but without the payment of any related
assignment fee, (ii) the Letter of Credit Sublimit (as defined in
the Existing Five-Year Credit Agreement) shall continue as the
Letter of Credit Sublimit hereunder as such Letter of Credit
Sublimit has been increased as set forth herein and (iii) all
Letters of Credit (as defined in the Existing Five-Year Credit
Agreement) outstanding under the Existing Five-Year Credit
Agreement (the "Existing Letters of Credit") shall continue as
Letters of Credit outstanding under this Agreement.
(c) The parties hereby consent to all reallocations and
assignments of Commitments and Outstanding Amounts effected
pursuant to Sections 1.01(b) and 1.01(c) and subject to Article V
hereof, waive any requirement for any other document or
instrument, including any Assignment and Assumption (as defined
in the Existing Five-Year Credit Agreement) under the Existing
Five-Year Credit Agreement or Assignment and Assumption
hereunder, necessary to give effect to any reallocation or
assignment. On the Closing Date the Lenders shall make full cash
settlement with each other (and with the Existing Lenders whose
Commitments are being decreased) through the Administrative
Agent, as the Administrative Agent may direct or approve, with
respect to all assignments and reallocations in Commitments as
reflected in this Section 1.01 such that after giving effect to
such settlements each Lender's Applicable Percentage of the
Commitments equals (with customary rounding) its Applicable
Percentage of (i) the Outstanding Amount of all Loans, and (ii)
the Outstanding Amount of all L/C Obligations.
(d) The parties hereto hereby agree that upon the
effectiveness of this Agreement, the terms and provisions of the
Existing Five-Year Credit Agreement which in any manner govern or
evidence the Obligations, the obligations of the Company and the
other Loan Parties, the rights and interests of the
Administrative Agent and the Lenders and any terms, conditions or
matters related to any thereof, shall be and hereby are amended
and restated in their entirety by the terms, conditions and
provisions of this Agreement, and the terms and provisions of the
Existing Five-Year Credit Agreement, except as otherwise
expressly provided herein or therein, shall be superseded by this
Agreement.
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(e) Notwithstanding this Amendment and Restatement of the
Existing Five-Year Credit Agreement, including anything in this
Section 1.01, and in any related Loan Documents (as defined in
the Existing Five-Year Credit Agreement and referred to herein,
individually or collectively, as the "Existing Loan Documents"),
(i) all of the indebtedness, liabilities and obligations owing by
any Person under the Existing Five-Year Credit Agreement and
other Existing Loan Documents shall continue as Obligations
hereunder, and (ii) each of this Agreement and the Notes and any
other Loan Document (as defined herein) that is amended and
restated in connection with this Agreement is given as a
substitution of, and not as a payment of, the indebtedness,
liabilities and obligations of the Company or any other Loan
Party under the Existing Five-Year Credit Agreement or any
Existing Loan Document and neither the execution and delivery of
such documents nor the consummation of any other transaction
contemplated hereunder is intended to constitute a novation of
the Existing Five-Year Credit Agreement or of any of the other
Existing Loan Documents or any obligations thereunder. Upon the
effectiveness of this Agreement, unless otherwise agreed to and
arranged by the Administrative Agent, all Loans (as defined in
the Existing Five-Year Credit Agreement) owing and outstanding
under the Existing Five-Year Credit Agreement shall be converted
to and, subject to conversion after the Closing Date, shall
continue as Base Rate Loans hereunder and shall constitute
advances hereunder, and all Letters of Credit (as defined in the
Existing Five-Year Credit Agreement) outstanding under the
Existing Five-Year Credit Agreement and any of the Existing Loan
Documents, if any, shall continue as Letters of Credit hereunder;
provided that if any Eurodollar Rate Loans (as defined in the
Existing Five-Year Credit Agreement) are converted to Base Rate
Loans pursuant to this Section 1.01(e) on a day other than the
last day of an Interest Period, the Borrowers shall compensate
the Lenders holding such Eurodollar Rate Loans (as defined in the
Existing Five-Year Credit Agreement) pursuant to Section 3.05 for
any loss, cost or expense arising from such conversion on the
Closing Date of Eurodollar Rate Loans under (and as defined in)
the Existing Five-Year Credit Agreement to Base Rate Loans
hereunder; provided further, that on and after the Closing Date,
the Applicable Rate and fees applicable to Loans and Letters of
Credit hereunder shall apply without regard to any margins or
fees otherwise applicable thereto under the Existing Five-Year
Credit Agreement prior to the Closing Date (which fees and
margins applicable prior to the Closing Date shall be paid in
full on the Closing Date).
1.02 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition by the Company or a Subsidiary
of all or substantially all of the assets of a Person, or of any
line of business or division of a Person, or (b) the acquisition
by the Company or a Subsidiary of in excess of 50% of the Equity
Interests of any Person (other than a Person already a
Subsidiary), or otherwise causing any Person to become a
Subsidiary.
"Administrative Agent" means Bank of America in its capacity
as administrative agent under any of the Loan Documents, or any
successor administrative agent.
"Administrative Agent's Office" means, with respect to any
currency, the Administrative Agent's address and, as appropriate,
account as set forth on Schedule 10.02 with respect to such
3
currency, or such other address or account with respect to such
currency as the Administrative Agent may from time to time notify
to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in substantially the form of Exhibit E-2 or any
other form approved by the Administrative Agent.
"Affiliate" means, with respect to any Person, another
Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Aggregate Commitments" means the Commitments of all the
Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Canadian Dollars,
Yen, Rands and each other currency (other than Dollars) that is
approved in accordance with Section 1.07.
"Alternative Currency Equivalent" means, at any time, with
respect to any amount denominated in Dollars, the equivalent
amount thereof in the applicable Alternative Currency as
determined by the Administrative Agent or the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the
lesser of the Aggregate Commitments and $50,000,000. The
Alternative Currency Sublimit is part of, and not in addition to,
the Aggregate Commitments.
"Amendment and Restatement" has the meaning specified in the
Preliminary Statements hereto.
"Applicable Percentage" means, with respect to any Lender at
any time, the percentage (carried out to the ninth decimal place)
of the Aggregate Commitments represented by such Lender's
Commitment at such time. If the commitment of each Lender to
make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the Applicable
Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Applicable Rate" means the percentages per annum, based
upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(a) determined in accordance with
the table set forth in Schedule 1.01(a). Any increase or
decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when
due in accordance with such Section, then Pricing Level 5 shall
apply as of the first Business Day after
4
the date on which such Compliance Certificate was required to
have been delivered until the first Business Day after the date
on which such Compliance Certificate is actually delivered. The
Applicable Rate in effect from the Closing Date through the first
Business Day immediately following the date a Compliance
Certificate is delivered or required to be pursuant to Section
6.02(b) for the fiscal quarter ended June 28, 2008 shall be
determined based upon the Consolidated Leverage Ratio set
forth in the Compliance Certificate delivered on the Closing
Date pursuant to Section 4.01(a)(vii).
"Applicable Time" means, with respect to any borrowings and
payments in any Alternative Currency, the local time in the place
of settlement for such Alternative Currency as may be determined
by the Administrative Agent or the L/C Issuer, as the case may
be, to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of
payment.
"Applicant Borrower" has the meaning specified in Section
2.14.
"Approved Fund" means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
"Arrangers" means BAS and Scotia Capital, Inc., in their
capacities as joint lead arrangers and joint book managers.
"Assignee Group" means two or more Eligible Assignees that
are Affiliates of one another or two or more Approved Funds
managed by the same investment advisor.
"Assignment and Assumption" means an assignment and
assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in
substantially the form of Exhibit E-1 or any other form approved
by the Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in
respect of any capital lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in
respect of any Synthetic Lease Obligation, the capitalized amount
of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease were accounted
for as a capital lease, and (c) in respect of any asset
securitization transaction of any Person, (i) the actual amount
of any unrecovered investment of purchasers or transferees of
assets so transferred, plus (ii) in the case of any other
recourse, repurchase, or debt obligation described in clause (a)
of the definition of "Off-Balance Sheet Liabilities," the
capitalized amount of such obligation that would appear on a
balance sheet of such Person prepared on such date in accordance
with GAAP if such sale or transfer or assets were accounted for
as a secured loan.
"Audited Financial Statements" means the audited
consolidated balance sheet of the Company and its Subsidiaries
and Consolidated Entities for the fiscal year ended December 31,
2007, and the related consolidated statements of earnings,
shareholders' equity and cash flows
5
for such fiscal year of the Company and its Subsidiaries and
Consolidated Entities, including the notes thereto.
"Availability Period" means the period from and including
the Closing Date to the earliest of (a) the Maturity Date, (b)
the date of termination of the Aggregate Commitments pursuant to
Section 2.06, and (c) the date of termination of the commitment
of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its
successors.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%
and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime
rate." The "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any
change in such rate announced by Bank of America shall take
effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a
Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate. All Base Rate Loans shall be denominated in
Dollars.
"Borrower" and "Borrowers" each has the meaning specified in
the introductory paragraph hereto.
"Borrower Materials" has the meaning specified in Section
6.02.
"Borrowing" means a Committed Borrowing or a Swing Line
Borrowing, as the context may require.
"Bresky Group" means (a) the estate of H. Harry Bresky, Otto
Bresky, Jr. (brother of the late H. Harry Bresky) and the estate
of Marjorie Shifman (deceased sister of the late H. Harry
Bresky), (b) spouses, heirs, legatees, lineal descendants, and
spouses of lineal descendants, other blood relatives, step-
children, adopted children, and/or estates or representatives of
estates of H. Harry Bresky, Otto Bresky, Jr. and Marjorie
Shifman, (c) trusts established for the benefit of spouses,
lineal descendants and spouses of lineal descendants, other blood
relatives, step-children, and/or adopted children of H. Harry
Bresky, Otto Bresky, Jr., and Marjorie Shifman and (d) any person
which is directly or indirectly Controlled by a person described
in the preceding clauses (a), (b) or (c).
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state
6
where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in Dollars, any
fundings, disbursements, settlements and payments in Dollars
in respect of any such Eurocurrency Rate Loan, or any other
dealings in Dollars to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars
are conducted by and between banks in the London interbank
eurodollar market;
(b) if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in Euro, any
fundings, disbursements, settlements and payments in Euro in
respect of any such Eurocurrency Rate Loan, or any other
dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan,
means a TARGET Day;
(c) if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in a currency
other than Dollars or Euro, means any such day on which
dealings in deposits in the relevant currency are conducted
by and between banks in the London or other applicable
offshore interbank market for such currency; and
(d) if such day relates to any fundings,
disbursements, settlements and payments in a currency other
than Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any
other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any
such Eurocurrency Rate Loan (other than any interest rate
settings), means any such day on which banks are open for
foreign exchange business in the principal financial center
of the country of such currency.
"Canadian Dollar" means the lawful currency of Canada.
"Cash Collateralize" has the meaning specified in Section
2.03(g).
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in
any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any
Governmental Authority.
"Change of Control" means an event or series of events by
which any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding (x) any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan, (y) Seaboard Flour and (z) any member of the Bresky Group)
(i) becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire
(such right, an "option right"),
7
whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 50% or more of the
equity securities of the Company entitled to vote for members
of the board of directors or equivalent governing body of the
Company on a fully-diluted basis (and taking into account all
such securities that such person or group has the right to
acquire pursuant to any option right), or (ii) shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the
management or policies of the Company, or control over the equity
securities of the Company entitled to vote for members of the
board of directors or equivalent governing body of the Company on
a fully-diluted basis (and taking into account all such
securities that such Person or group has the right to acquire
pursuant to any option right) representing 50% or more of the
combined voting power of such securities.
"Closing Date" means the first date all the conditions
precedent in Section 4.01 are satisfied or waived in accordance
with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a)
make Committed Loans to the Borrowers pursuant to Section 2.01,
(b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the Dollar
amount set forth opposite such Lender's name on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of
simultaneous Committed Loans of the same Type, in the same
currency and, in the case of Eurocurrency Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed
Borrowing, (b) a conversion of Committed Loans from one Type to
the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Company" has the meaning specified in the introductory
paragraph hereto.
"Company Guaranty" means a Guaranty Agreement in favor of
the Administrative Agent and the Lenders, in substantially the
form of Exhibit J, executed by the Company on behalf of a
Designated Borrower that is a Foreign Obligor.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit D.
"Consolidated Adjusted Leverage Ratio" means, as of any date
of determination, the ratio of (a) the remainder of Consolidated
Funded Indebtedness as of such date, minus all unencumbered cash
and cash equivalents of the Company and its Subsidiaries and
Consolidated
8
Entities as of such date with adjustments for international
tax effects at an assumed withholding rate of 35%, as applicable,
to (b) Consolidated EBITDA for the period of the four fiscal
quarters most recently ended.
"Consolidated EBITDA" means, for any period, for the Company
and its Subsidiaries and Consolidated Entities on a consolidated
basis, an amount equal to Consolidated Net Income for such period
plus (a) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for
such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Company and its Subsidiaries
for such period, (iii) depreciation and amortization expense and
(iv) other expenses, losses or charges of the Company and its
Subsidiaries and Consolidated Entities reducing such Consolidated
Net Income which do not represent a cash item in such period or
any future period, and minus (b) the following to the extent
included in calculating such Consolidated Net Income: (i)
Federal, state, local and foreign income tax credits of the
Company and its Subsidiaries and Consolidated Entities for such
period and (ii) all non-cash items and all other extraordinary,
unusual or nonrecurring gains of the Company and its Subsidiaries
and Consolidated Entities increasing Consolidated Net Income for
such period.
"Consolidated Entity" means an entity, other than a
Subsidiary, that is subject to consolidation under GAAP.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Company and its Subsidiaries and
Consolidated Entities on a consolidated basis, without
duplication, the sum of (a) the outstanding principal amount of
all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced
by bonds, debentures, notes, loan agreements or other similar
instruments, (b) the outstanding principal amount of all purchase
money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar
instruments, (d) the outstanding amount of all obligations in
respect of the deferred purchase price of property or services
(other than trade accounts payable and accrued expenses in the
ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases, Synthetic Lease Obligations and other
Off-Balance Sheet Liabilities, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than
the Company, any Subsidiary or any Consolidated Entity, and (g)
all Indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability
company) in which the Company or a Subsidiary or any Consolidated
Entity is a general partner or joint venturer, unless such
Indebtedness is non-recourse to the Company, such Subsidiary or
such Consolidated Entity.
"Consolidated Interest Charges" means, for any period, for
the Company and its Subsidiaries and Consolidated Entities on a
consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of
the Company and its Subsidiaries and Consolidated Entities in
connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with
GAAP, (b) the portion of rent expense of the Company and its
Subsidiaries and Consolidated Entities with respect to such
period under capital
9
leases that is treated as interest in accordance with GAAP, and
(c) all implicit interest in connection with Synthetic Lease
Obligations and other Off-Balance Sheet Liabilities.
"Consolidated Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness
as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the
Company and its Subsidiaries and Consolidated Entities on a
consolidated basis, the net income of the Company and its
Subsidiaries and Consolidated Entities (excluding extraordinary
gains but including extraordinary losses) for that period.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Company and its Subsidiaries and
Consolidated Entities on a consolidated basis, Shareholders'
Equity on such date minus the Intangible Assets of the Company
and its Subsidiaries and Consolidated Entities on such date.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (a) Consolidated Funded Indebtedness
and (b) Shareholders' Equity on such date.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Cost of Acquisition" means, with respect to any
Acquisition, as at the date of entering into any agreement
therefor, the sum of the following (without duplication): (a)
the value of the Equity Interests of the Company or any
Subsidiary to be transferred in connection therewith, (b) the
amount of any cash and fair market value of other property
(excluding property described in clause (a) and the unpaid
principal amount of any debt instrument) given as consideration,
(c) the amount (determined by using the face amount or the amount
payable at maturity, whichever is greater) of any Indebtedness
incurred, assumed or acquired by the Company or any Subsidiary in
connection with such Acquisition, (d) all additional purchase
price amounts in the form of earnouts and other contingent
obligations that should be recorded on the financial statements
of the Company and its Subsidiaries in accordance with GAAP, (e)
all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial
statements of the Company and its Subsidiaries in accordance with
GAAP, and other affiliated contracts in connection with such
Acquisition, (f) the aggregate fair market value of all other
consideration given by the Company or any Subsidiary in
connection with such Acquisition, and (g) out of pocket
transaction costs for the services and expenses of attorneys,
accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred.
For purposes of determining the Cost of Acquisition for any
transaction, the capital stock of the Company or a Subsidiary
shall be valued (A) in the case of capital stock that is then
designated
10
as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed
on a national securities exchange, the average of the last
reported bid and ask quotations or the last prices reported
thereon, and (B) with respect to any other Equity Interests, as
determined by a committee composed of the disinterested members
of the Board of Directors of the Company and, if requested by the
Administrative Agent, determined to be a reasonable valuation by
the independent public accountants referred to in Section
6.01(a), and (C) with respect to any Acquisition accomplished
pursuant to the exercise of options or warrants or the conversion
of securities, the Cost of Acquisition shall include both the
cost of acquiring such option, warrant or convertible security as
well as the cost of exercise or conversion.
"Credit Extension" means each of the following: (a) a
Borrowing and (b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or
similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an
Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means (a) when used with respect to
Obligations other than Letter of Credit Fees, an interest rate
equal to (i) the Base Rate plus (ii) the Applicable Rate, if any,
applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate and any Mandatory Cost) otherwise
applicable to such Loan plus 2% per annum, and (b) when used with
respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to
fund any portion of the Committed Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be
funded by it hereunder within one Business Day of the date
required to be funded by it hereunder unless such failure has
been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender 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, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Designated Borrower" has the meaning specified in the
introductory paragraph hereto.
"Designated Borrower Sublimit" means an amount equal to the
lesser of the Aggregate Commitments and $50,000,000. The
Designated Borrower Sublimit is part of, and not in addition to,
the Aggregate Commitments.
"Designated Borrower Notice" has the meaning specified in
Section 2.14.
11
"Designated Borrower Request and Assumption Agreement" has
the meaning specified in Section 2.14.
"Disposition" or "Dispose" means the sale, transfer,
license, sales type or direct financing lease or other
disposition (including any sale and leaseback transaction) of any
property by any Person, including any sale, assignment, transfer
or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated
therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to
any amount denominated in Dollars, such amount, and (b) with
respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the
Administrative Agent or the L/C Issuer, as the case may be, at
such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of Dollars
with such Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized
under the laws of any state of the United States or the District
of Columbia.
"Eligible Assignee" means any Person that meets the
requirements to be an assignee under Section 10.06(b)(iii), (v),
(vi) and (vii) subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).
"EMU" means the economic and monetary union in accordance
with the Treaty of Rome 1957, as amended by the Single European
Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty
of 1998.
"EMU Legislation" means the legislative measures of the
European Council for the introduction of, changeover to or
operation of a single or unified European currency.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or
the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of
the Company, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d)
the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
12
"Equity Interests" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership
or profit interests in such Person (including partnership, member
or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Company within
the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the
Participating Member States introduced in accordance with the EMU
Legislation.
"Eurocurrency Rate" means, for any Interest Period with
respect to a Eurocurrency Rate Loan, the rate per annum equal to
the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "Eurocurrency
Rate" for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which
deposits in the relevant currency for delivery on the first day
of such Interest Period in Same Day Funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London
Branch (or other Bank of America branch or Affiliate) to major
banks in the London or other offshore
13
interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears
interest at a rate based on the Eurocurrency Rate. Eurocurrency
Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Committed Loans denominated in an Alternative
Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section
8.01.
"Excluded Assets" has the meaning specified in the
definition of "Excluded Transaction".
"Excluded Transaction" has the meaning specified in Schedule
1.01(b).
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the L/C Issuer or any other recipient of any
payment to be made by or on account of any obligation of any
Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which
such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other
jurisdiction in which such Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause
(A) of Section 3.01(e)(ii), and (d) , in the case of a Foreign
Lender (other than an assignee pursuant to a request by the
Company under Section 10.13), any United States withholding tax
that (i) is required to be imposed on amounts payable to such
Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new
Lending Office) or (ii) is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law)
to comply with clause (B) of Section 3.01(e)(ii), except to the
extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from such Borrower
with respect to such withholding tax pursuant to Section
3.01(a)(i) or (ii). Notwithstanding anything to the contrary
contained in this definition, "Excluded Taxes" shall not include
any withholding tax imposed at any time on payments made by or on
behalf of a Foreign Obligor to any Lender hereunder or under any
other Loan Document, provided that such Lender shall have
complied with Section 3.01(e)(i).
"Existing Five-Year Credit Agreement" has the meaning
specified in the Preliminary Statements hereto.
"Existing Lender" has the meaning specified in the
Preliminary Statements hereto.
"Existing Letters of Credit" has the meaning specified in
Section1.01(b) hereto.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if
14
such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated June 3, 2008,
among the Company, the Administrative Agent and BAS.
"Foreign Lender" means, with respect to any Borrower, any
Lender that is organized under the Laws of a jurisdiction other
than that in which such Borrower is resident for tax purposes
(including such a Lender when acting in the capacity of the L/C
Issuer). For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Obligor" means a Loan Party that is a Foreign
Subsidiary.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States, a
State thereof or the District of Columbia.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"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 activities.
"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, consistently
applied.
"Governmental Authority" means the government of the United
States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Guarantee" means, as to any Person, any (a) obligation,
contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the "primary
obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness
or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the
primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the
15
purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) Lien on any assets
of such Person securing any Indebtedness or other obligation of
any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such
Lien); provided, that "Guarantee" shall not include obligations
relating to the endorsement of checks or other items for
collection in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing
Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments;
(b) all direct or contingent obligations of such
Person arising under letters of credit (including standby
and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(c) net obligations of such Person under any Swap
Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade
accounts payable in the ordinary course of business and, in
each case, not past due for more than 60 days and other than
accrued expenses in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under
conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
16
(f) capital leases, Synthetic Lease Obligations and
other Off-Balance Sheet Liabilities;
(g) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint
venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is non-
recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any
capital lease, Synthetic Lease Obligation or other Off-Balance
Sheet Liability as of any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such date.
Notwithstanding the foregoing, obligations of the Company or
its Subsidiaries under or with respect to the Excluded
Transaction that are not obligations for borrowed money shall not
constitute Indebtedness for purposes of this Agreement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Intangible Assets" means assets that are considered to be
intangible assets under GAAP, including customer lists, goodwill,
computer software, copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges (but excluding
any deferred taxes), unamortized debt discount and capitalized
research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than
a Base Rate Loan, the last day of each Interest Period applicable
to such Loan and the Maturity Date; provided, however, that if
any Interest Period for a Eurocurrency Rate Loan exceeds three
months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), the last Business Day of each March, June,
September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan,
the period commencing on the date such Eurocurrency Rate Loan is
disbursed or converted to or continued as a Eurocurrency Rate
Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Committed Loan
Notice or such other period that is twelve months or less
requested by the Company and consented to by all the Lenders;
provided that:
17
(i) any Interest Period that would otherwise end on a
day that 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;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period shall extend beyond the
Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a)
the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase
or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint
venture interest in such other Person and any arrangement
pursuant to which the investor Guarantees Indebtedness of such
other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another
Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the Institute
of International Banking Law & Practice, Inc. (or such later
version thereof as may be in effect at the time of issuance).
"Issuer Documents" means with respect to any Letter of
Credit, the Letter of Credit Application, and any other document,
agreement and instrument entered into by the L/C Issuer and the
Company (or any Subsidiary) or in favor of the L/C Issuer and
relating to such Letter of Credit.
"Laws" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the
force of law.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its Applicable Percentage. All L/C Advances
shall be denominated in Dollars.
18
"L/C Borrowing" means an extension of credit resulting from
a drawing under any Letter of Credit which has not been
reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date
thereof, or the increase of the amount thereof.
"L/C Issuer" means (a) Bank of America in its capacity as
issuer of Letters of Credit hereunder, (b) Bank of Nova Scotia in
its capacity as issuer of Letters of Credit hereunder, (c)
CoBank, ACB in its capacity as issuer of Letters of Credit
hereunder, (d) The Bank of New York Mellon in its capacity as
issuer of Letters of Credit hereunder, (e) SunTrust Bank in its
capacity as issuer of Letters of Credit hereunder, and (f) any
successor issuer(s) of Letters of Credit hereunder. All singular
references to the L/C Issuer shall mean any L/C Issuer, either
L/C Issuer, the L/C Issuer that has issued the applicable Letter
of Credit, or all L/C Issuers, as the context may require.
"L/C Obligations" means, as at any date of determination,
the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For purposes of computing the
amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance
with Section 1.10. For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms
but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be "outstanding" in the amount so remaining available
to be drawn.
"Lender" has the meaning specified in the introductory
paragraph hereto and, as the context requires, includes the Swing
Line Lender and each L/C Issuer.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such in such Lender's
Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Company and the
Administrative Agent.
"Letter of Credit" means any letter of credit issued
hereunder and shall include the Existing Letters of Credit. A
Letter of Credit may be a commercial letter of credit or a
standby letter of credit. Letters of Credit may be issued in
Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit in
the form from time to time in use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is
seven days prior to the Maturity Date then in effect (or, if such
day is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section
2.03(i).
"Letter of Credit Sublimit" means an amount equal to
$100,000,000. The Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Commitments.
19
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to a
Borrower under Article II in the form of a Committed Loan or a
Swing Line Loan.
"Loan Documents" means this Agreement, each Designated
Borrower Request and Assumption Agreement, each Note, each Issuer
Document and the Fee Letter.
"Loan Parties" means, collectively, the Company and each
Designated Borrower.
"Mandatory Cost" means, with respect to any period, the
percentage rate per annum determined in accordance with Schedule
1.01.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Company or
the Company and its Subsidiaries and Consolidated Entities taken
as a whole; (b) a material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document to which
it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.
"Material Subsidiary" means a Subsidiary that,
(a) at any time during the then current fiscal year or
the two then preceding fiscal years of the Company,
constituted more than three percent (3%) of consolidated
total assets (as shown on the Company's consolidated balance
sheet) or Shareholders' Equity; or
(b) accounted for more than three percent (3%) of the
revenues of the Company and its Subsidiaries, determined on
a consolidated basis, in respect of any one or more of the
then preceding twelve (12) fiscal quarters of the Company.
For purposes of this definition, a Designated Borrower
shall be deemed to be a "Material Subsidiary"
hereunder.
"Maturity Date" means July 10, 2013.
"Multiemployer Plan" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA, to which the
Company or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made
or been obligated to make contributions.
20
"Net Cash Proceeds" means, with respect to the sale of any
asset by the Company or any Subsidiary, the remainder, if any, of
(a) the sum of cash and cash equivalents received in connection
with such sale (including any cash received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) minus (b) the sum of
(i) the principal amount of any Indebtedness that is secured by
such asset and that is required to be repaid in connection with
the sale thereof, (ii) the out-of-pocket expenses incurred by the
Company or any Subsidiary in connection with such sale and (iii)
income taxes reasonably estimated to be actually payable within
two years of the date of the relevant asset sale as a result of
any gain recognized in connection therewith.
"Non-Material Subsidiary" means any Subsidiary that is not a
Material Subsidiary.
"Note" means a promissory note made by a Borrower in favor
of a Lender evidencing Loans made by such Lender to such
Borrower, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising
under any Loan Document or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become
due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims
in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any
Person as of any date of determination thereof, without
duplication and to the extent not included as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in
accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable
purchase facility), the unrecovered investment of purchasers or
transferees of assets so transferred and the principal amount of
any recourse, repurchase or debt obligations incurred in
connection therewith; and (b) the monetary obligations under any
financing lease or so-called "synthetic," tax retention or off-
balance sheet lease transaction which, upon the application of
any Debtor Relief Law to such Person or any of its Subsidiaries,
would be characterized as indebtedness.
"Organization Documents" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto
filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.
"Other Taxes" means all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies arising from any payment made hereunder or
21
under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or
any other Loan Document.
"Outstanding Amount" means (a) with respect to Committed
Loans on any date, the Dollar Equivalent amount of the aggregate
outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Committed Loans
occurring on such date; (b) with respect to Swing Line Loans on
any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or
repayments of such Swing Line Loans occurring on such date; and
(c) with respect to any L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such L/C
Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Company of
Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any
amount denominated in Dollars, the greater of (i) the Federal
Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender,
as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per
annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered
for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 10.06(d).
"Participating Member State" means each state so described
in any EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Company or any ERISA Affiliate or
to which the Company or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer
or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five
plan years.
"Permitted Lines of Business" means (a) meat (including
chicken, turkey, beef, lamb and pork), poultry and seafood
production and processing, (b) ocean transportation and related
ground transportation and support, (c) animal feed production and
processing, (d) flour and feed milling, (e) power production, (f)
commodity merchandising, (g) baking, (h) citrus production and
processing, (i) sugar production and processing, (j) the
production and marketing of alternative energy products
(including bio-diesel and ethanol) and (k) the holding of cash
and investments held for future use by the Company and its
Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
22
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by the Company or,
with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Priority Indebtedness" means, as of any date of
determination, the sum (without duplication) of (a) all
Indebtedness of the Company secured by Liens permitted by Section
7.01(n), plus (b) all Indebtedness of Subsidiaries permitted by
Sections 7.03(c) and (j).
"Public Lender" has the meaning specified in Section 6.02.
"Purchase Money Liens" means Liens securing Indebtedness
(including renewals, extensions and refinancings thereof) in
respect of capital leases, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets; provided
in each case, that (a) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness,
(b) the Indebtedness secured thereby does not exceed the cost or
fair market value, whichever is lower, of the property being
acquired on the date of acquisition, (c) such Lien shall not
extend to or cover any property other than property acquired or
constructed after the Closing Date with the proceeds of the
Indebtedness secured thereby, and shall not secure Indebtedness
other than such Indebtedness, (d) such property is either
expansionary in nature and thus not intended to replace existing
assets of the company, or replaces formerly leased property, and
(e) if the Indebtedness secured thereby is owing to any
Subsidiary, the property being financed thereby has not been
previously owned by the Company or any Subsidiary.
"Qualifying Lender" shall mean a Lender which is
beneficially entitled to interest payable to that Lender in
respect of an advance under a Loan Document and is:
(a) a Lender: (i) which is a bank (as defined for the
purpose of section 349 of the Taxes Act) making an advance
under a Loan Document; or (ii) in respect of an advance made
under a Loan Document by a person that was a bank (as
defined for the purpose of section 349 of the Taxes Act) at
the time that that advance was made, and which is within the
charge to United Kingdom corporation tax as respects any
payments of interest made in respect of that advance; or
(b) a Lender which is (i) a company resident in the
United Kingdom for United Kingdom tax purposes; (ii) a
partnership each member of which is: (aa) a company so
resident in the United Kingdom; or (bb) a company not so
resident in the United Kingdom which carries on a trade in
the United Kingdom through a permanent establishment and
which brings into account in computing its chargeable
profits (for the purposes of section 11(2) of the Taxes Act)
the whole of any share of interest payable in respect of
that advance that falls to it by reason of sections 114 and
115 of the Taxes Act; (iii) a company not so resident in the
United Kingdom which carries on a trade in the United
Kingdom through a permanent establishment and which brings
into account
23
interest payable in respect of that advance in computing the
chargeable profits (for the purposes of section 11(2) of the
Taxes Act) of the company; or;
(c) a Treaty Lender.
"Rand" means the lawful currency of the Republic of South
Africa.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such
Person's Affiliates.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the 30 day
notice period has been waived.
"Request for Credit Extension" means (a) with respect to a
Borrowing, conversion or continuation of Committed Loans, a
Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination,
Lenders having more than 50% of the Aggregate Commitments or, if
the commitment of each Lender to make Loans and the obligation of
the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more
than 50% of the Total Outstandings (with the aggregate amount of
each Lender's risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed "held" by such
Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer,
president, chief financial officer, treasurer or assistant
treasurer or any vice president of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a
Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on
the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any capital stock or other Equity Interest of the
Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
capital stock or other Equity Interest, or on account of any
return of capital to the Company's stockholders, partners or
members (or the equivalent Person thereof).
"Revaluation Date" means (a) with respect to any Loan, each
of the following: (i) each date of a Borrowing of a Eurocurrency
Rate Loan denominated in an Alternative Currency, (ii)
24
each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section 2.02,
and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with
respect to any Letter of Credit, each of the following: (i)
each date of issuance of a Letter of Credit denominated in an
Alternative Currency, (ii) each date of an amendment of any such
Letter of Credit having the effect of increasing or decreasing
the amount thereof (solely with respect to the increased or
decreased amount), (iii) each date of any payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative
Currency, and (iv) such additional dates as the Administrative
Agent or the L/C Issuer shall determine or the Required Lenders
shall require.
"Same Day Funds" means (a) with respect to disbursements and
payments in Dollars, immediately available funds, and (b) with
respect to disbursements and payments in an Alternative Currency,
same day or other funds as may be determined by the
Administrative Agent or the L/C Issuer, as the case may be, to be
customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant
Alternative Currency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Seaboard Flour" means Seaboard Flour LLC, a Delaware
limited liability company.
"Senior Note Agreements" means the Note Purchase Agreements
dated as of September 30, 2002, among the Company and the
purchasers of the Senior Notes.
"Senior Notes" means, collectively, the Company's (a) 5.80%
Senior Notes, Series A, due September 30, 2009, issued in an
initial aggregate principal amount of $32,500,000, (b) 6.21%
Senior Notes, Series B, due September 30, 2009, issued in an
initial aggregate principal amount of $38,000,000, (c) 6.21%
Senior Notes, Series C, due September 30, 2012, issued in an
initial aggregate principal amount of $7,500,000, and (d) 6.92%
Senior Notes, Series D, due September 30, 2012, issued in an
initial aggregate principal amount of $31,000,000.
"Shareholders' Equity" means, as of any date of
determination, consolidated shareholders' equity of the Company
and its Subsidiaries and Consolidated Entities as of that date
determined in accordance with GAAP.
"Special Notice Currency" means at any time an Alternative
Currency, other than the currency of a country that is a member
of the Organization for Economic Cooperation and Development at
such time located in North America or Europe.
"Spot Rate" for a currency means the rate determined by the
Administrative Agent or the L/C Issuer, as applicable, to be the
rate quoted by the Person acting in such capacity as the spot
rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is
made; provided that the Administrative Agent or the L/C Issuer
may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the
Person acting in such
25
capacity does not have as of the date of determination a spot
buying rate for any such currency; and provided further that
the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.
"Subsidiary" of a Person means a corporation, partnership,
joint venture, limited liability company or other business entity
of which a majority of the shares of securities or other
interests having ordinary voting power for the election of
directors or other governing body (other than securities or
interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person.
Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Company.
"Swap Contract" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any
kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under
any Master Agreement.
"Swap Termination Value" means, in respect of any one or
more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap
Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a),
the amount(s) determined as the mark-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market
or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
"Swing Line Borrowing" means a borrowing of a Swing Line
Loan pursuant to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line lender
hereunder.
"Swing Line Loan" has the meaning specified in Section
2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing pursuant to Section 2.04(b), which, if in writing,
shall be substantially in the form of Exhibit B.
26
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $25,000,000 and (b) the Aggregate Commitments. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Synthetic Lease Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic, off-balance sheet or
tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on
the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting
treatment).
"TARGET Day" means any day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer (TARGET)
payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for
the settlement of payments in Euro.
"Tax Confirmation" means a confirmation by the
Administrative Agent, any Lender or an L/C Issuer, as applicable,
that the person beneficially entitled to interest payable to that
Lender in respect of an advance under a Loan Document is either:
(a) a company resident in the United Kingdom for United Kingdom
tax purposes; (b) a partnership each member of which is: (i) a
company so resident in the United Kingdom; or (ii) a company not
so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings
into account in computing its chargeable profits (for the
purposes of section 11(2) of the Taxes Act) the whole of any
share of interest payable in respect of that advance that falls
to it by reason of sections 114 and 115 of the Taxes Act; or (c)
a company not so resident in the United Kingdom which carries on
a trade in the United Kingdom through a permanent establishment
and which brings into account interest payable in respect of that
advance in computing the chargeable profits (for the purposes of
section 11(2) of the Taxes Act) of that company.
"Tax Deduction" shall mean a deduction or withholding for or
on account of Taxes from a payment under a Loan Document or Swap
Contract.
"Taxes" means all present or future taxes, levies, imposts,
duties, deductions, withholdings (including backup withholding),
assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties
applicable thereto.
"Taxes Act" shall mean the Income and Corporation Taxes Act
1988.
"Total Outstandings" means the aggregate Outstanding Amount
of all Loans and all L/C Obligations.
"Treaty Lender" shall mean a Lender which (a) is treated as
a resident of a Treaty State for the purposes of a double
taxation agreement (a Treaty) and (b) does not carry on a
business in the United Kingdom through a permanent establishment
with which that Lender's participation in the Loan is effectively
connected.
27
"Treaty State" shall mean a jurisdiction having a double
taxation agreement (a Treaty) with the United Kingdom which makes
provision for full exemption from tax imposed by the United
Kingdom on interest.
"Type" means, with respect to a Committed Loan, its
character as a Base Rate Loan or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Pension Plan's assets, determined
in accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" and "U.S." mean the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
"Yen" and "Y" mean the lawful currency of Japan.
1.03 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply
equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation." The word "will" shall be construed to
have the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any definition of
or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as
referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person's
successors and assigns, (iii) the words "herein," "hereof"
and "hereunder," and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and
regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such
law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and
contract rights.
28
(b) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including;" the words "to" and "until" each
mean "to but excluding;" and the word "through" means "to
and including."
(c) Section headings herein and in the other Loan
Documents are included for convenience of reference only and
shall not affect the interpretation of this Agreement or any
other Loan Document.
1.04 Accounting Matters. (a) Generally. All accounting terms
not specifically or completely defined herein shall be construed
in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise
specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP
would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the
Company or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall 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 Lenders); provided 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 Company shall provide to the Administrative Agent and
the Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in
GAAP.
(c) Accounting for Acquisitions and Dispositions. (i) With
respect to any Acquisition having a Cost of Acquisition of at
least $50,000,000 consummated on or after the Closing Date, for
each of the four fiscal quarter periods ending next following the
date of any Acquisition, (x) Consolidated EBITDA shall include
the historical results of operations of the Person or assets so
acquired, and which amounts may include such adjustments as are
permitted under Regulation S-X of the SEC and reasonably
satisfactory to the Administrative Agent but (y) for purposes of
determining compliance with the provisions of Section 7.12(a),
any increase in Consolidated Net Income resulting solely from
such pro forma treatment of such Acquisition shall be
disregarded;
(ii)For each of the four periods of four fiscal
quarters ending next following the date of any Disposition of a
Material Subsidiary or all or substantially all of the assets of
a Material Subsidiary, (i) Consolidated EBITDA shall exclude the
results of operations of the Person or assets so disposed of on a
historical pro forma basis, and which amounts shall include only
adjustments reasonably satisfactory to the Administrative Agent;
and
(iii) For each of the four periods of four fiscal
quarters ending next following the date of any Disposition of a
Material Subsidiary or all or substantially all of the assets of
a Material Subsidiary, Consolidated Interest Charges shall be
adjusted on a historical pro forma basis to eliminate interest
expense accrued during such period on (i) any Indebtedness repaid
or
29
assumed from the Material Subsidiary in connection with such
Disposition or (ii) if such Disposition is of all of the Equity
Interests of the Material Subsidiary, any Indebtedness of such
Material Subsidiary for which neither the Borrower nor any other
Subsidiary is directly or indirectly liable.
(d) Consolidation of Variable Interest Entities. All
references herein to consolidated financial statements of the
Company and its Subsidiaries or to the determination of any
amount for the Company and its Subsidiaries on a consolidated
basis or any similar reference shall, in each case, be deemed to
include each variable interest entity that the Company is
required to consolidate pursuant to FASB Interpretation No. 46-
Consolidation of Variable Interest Entities: an interpretation
of ARB No. 51 (January 2003), or any successor pronouncement,
standard or interpretation thereof, as if such variable interest
entity were a Subsidiary as defined herein.
1.05 Rounding. Any financial ratios required to be
maintained by the Company pursuant to the Agreement shall be
calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.06 Exchange Rates; Currency Equivalents. (a) The
Administrative Agent or the L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used
for calculating Dollar Equivalent amounts of Credit Extensions
and Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation
Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next
Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating
financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than
Dollars) for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent or
the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with a
Committed Borrowing, conversion, continuation or prepayment of a
Eurocurrency Rate Loan or the issuance, amendment or extension of
a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Committed
Borrowing, Eurocurrency Rate Loan or Letter of Credit is
denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount
(rounded to the nearest unit of such Alternative Currency, with
0.5 of a unit being rounded upward), as determined by the
Administrative Agent or the L/C Issuer, as the case may be.
1.07 Additional Alternative Currencies. (a) The Company may
from time to time request that Eurocurrency Rate Loans be made
and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of "Alternative
Currency;" provided that such requested currency is a lawful
currency (other than Dollars) that is readily available and
freely transferable and convertible into Dollars. In the case of
any such request with respect to the making of Eurocurrency Rate
Loans, such request shall be subject to the approval of the
Administrative Agent and the Lenders; and in the case of any such
request with respect to the
30
issuance of Letters of Credit, such request shall
be subject to the approval of the Administrative Agent and the
L/C Issuer.
(b) Any such request shall be made to the Administrative
Agent not later than 10:00 a.m., 20 Business Days prior to the
date of the desired Credit Extension (or such other time or date
as may be agreed by the Administrative Agent and, in the case of
any such request pertaining to Letters of Credit, the L/C Issuer,
in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of any
such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. Each Lender
(in the case of any such request pertaining to Eurocurrency Rate
Loans) or the L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not
later than 10:00 a.m., ten Business Days after receipt of such
request whether it consents, in its sole discretion, to the
making of Eurocurrency Rate Loans or the issuance of Letters of
Credit, as the case may be, in such requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case
may be, to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a
refusal by such Lender or the L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit to
be issued in such requested currency. If the Administrative Agent
and all the Lenders consent to making Eurocurrency Rate Loans in
such requested currency, the Administrative Agent shall so notify
the Company and such currency shall thereupon be deemed for all
purposes to be an Alternative Currency hereunder for purposes of
any Committed Borrowings of Eurocurrency Rate Loans; and if the
Administrative Agent and the L/C Issuer consent to the issuance
of Letters of Credit in such requested currency, the
Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If the Administrative Agent shall fail to
obtain consent to any request for an additional currency under
this Section 1.07, the Administrative Agent shall promptly so
notify the Company.
1.08 Change of Currency. (a) Each obligation of the
Borrowers to make a payment denominated in the national currency
unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). If, in relation to the
currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced
by such convention or practice with effect from the date on which
such member state adopts the Euro as its lawful currency;
provided that if any Committed Borrowing in the currency of such
member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Committed
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative
Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European
Union and any relevant market conventions or practices relating
to the Euro.
31
(c) Each provision of this Agreement also shall be subject
to such reasonable changes of construction as the Administrative
Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market
conventions or practices relating to the change in currency.
1.09 Times of Day. Unless otherwise specified, all
references herein to times of day shall be references to
Pacific time (daylight or standard, as applicable).
1.10 Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be
deemed to be the Dollar Equivalent of the stated amount of such
Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount
of such Letter of Credit shall be deemed to be the Dollar
Equivalent of the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make loans
(each such loan, a "Committed Loan") to the Borrowers in Dollars
or in one or more Alternative Currencies from time to time, on
any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving effect
to any Committed Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's
Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, (iii) the aggregate Outstanding Amount of
all Committed Loans made to the Designated Borrowers shall not
exceed the Designated Borrower Sublimit, and (iv) the aggregate
Outstanding Amount of all Committed Loans denominated in
Alternative Currencies shall not exceed the Alternative Currency
Sublimit. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01. Committed Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.
2.02 Borrowings, Conversions and Continuations of Committed
Loans.
(a) Each Committed Borrowing, each conversion of Committed
Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon the Company's
irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the
Administrative Agent not later than 10:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate
Loans denominated in Dollars to Base Rate Committed Loans, (ii)
four Business Days (or five
32
Business Days in the case of a Special Notice Currency) prior to
the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any Borrowing of Base Rate
Committed Loans; provided, however, that if the Company wishes to
request Eurocurrency Rate Loans having an Interest Period other
than one, two, three or six months in duration as provided in the
definition of "Interest Period", the applicable notice must be
received by the Administrative Agent not later than 10:00 a.m.
(i) four Business Days prior to the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans
denominated in Dollars, or (ii) five Business Days (or six
Business days in the case of a Special Notice Currency) prior to
the requested date of such Borrowing, conversion or continuation
of Eurocurrency Rate Loans denominated in Alternative Currencies,
whereupon the Administrative Agent shall give prompt notice to
the Lenders of such request and determine whether the requested
Interest Period is acceptable to all of them. Not later than
10:00 a.m., (i) three Business Days before the requested date of
such Borrowing, conversion or continuation of Eurocurrency Rate
Loans denominated in Dollars, or (ii) four Business Days (or five
Business days in the case of a Special Notice Currency) prior to
the requested date of such Borrowing, conversion or continuation
of Eurocurrency Rate Loans denominated in Alternative Currencies,
the Administrative Agent shall notify the Company (which notice
may be by telephone) whether or not the requested Interest Period
has been consented to by all the Lenders. Each telephonic notice
by the Company pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Committed Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Company is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Eurocurrency Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect
thereto, (vi) the currency of the Committed Loans to be borrowed,
and (vii) if applicable, the Designated Borrower. If the Company
fails to specify a currency in a Committed Loan Notice requesting
a Borrowing, then the Committed Loans so requested shall be made
in Dollars. If the Company fails to specify a Type of Committed
Loan in a Committed Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to,
Base Rate Loans; provided, however, that in the case of a failure
to timely request a continuation of Committed Loans denominated
in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an
Interest Period of one month. Any automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If the Company requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one
month. No Committed Loan may be converted into or continued as a
Committed Loan
33
denominated in a different currency, but instead must be prepaid
in the original currency of such Committed Loan and reborrowed in
the other currency.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the
amount (and currency) of its Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Company, the
Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans or continuation of
Committed Loans denominated in a currency other than Dollars, in
each case as described in the preceding subsection. In the case
of a Committed Borrowing, each Lender shall make the amount of
its Committed Loan available to the Administrative Agent in Same
Day Funds at the Administrative Agent's Office for the applicable
currency not later than 12:00 p.m., in the case of any Committed
Loan denominated in Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all
funds so received available to the Company or the other
applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of such
Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Company; provided,
however, that if, on the date the Committed Loan Notice with
respect to such Borrowing denominated in Dollars is given by the
Company, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing, first, shall be applied to the payment in full
of any such L/C Borrowings, and, second, shall be made available
to the applicable Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency
Rate Loan may be continued or converted only on the last day of
an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted
to or continued as Eurocurrency Rate Loans (whether in Dollars or
any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an
Alternative Currency be prepaid, or redenominated into Dollars in
the amount of the Dollar Equivalent thereof, on the last day of
the then current Interest Period with respect thereto.
(d) The Administrative Agent shall promptly notify the
Company and the Lenders of the interest rate applicable to any
Interest Period for Eurocurrency Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Company
and the Lenders of any change in Bank of America's prime rate
used in determining the Base Rate promptly following the public
announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there
shall not be more than ten Interest Periods in effect with
respect to Committed Loans.
34
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of the
Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit
denominated in Dollars or in one or more Alternative Currencies
for the account of the Company or its Subsidiaries, and to amend
or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the
Company or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect
to any Letter of Credit, (x) the Total Outstandings shall not
exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's
Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each
request by the Company for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Company
that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and
conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Company may,
during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon
and reimbursed. 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.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject to Section 2.03(b)(iii), the expiry date
of such requested Letter of Credit (other than the Existing
Letters of Credit or extensions or renewals thereof) would
occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved
such expiry date; or
(B) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the L/C Issuer or any
35
request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C
Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall
impose upon the L/C Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer
in good faith deems material to it;
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative
Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount less than $100,000, in the case of a
commercial Letter of Credit, or $50,000, in the case of a
standby Letter of Credit;
(D) except as otherwise agreed by the Administrative
Agent and the L/C Issuer, such Letter of Credit is to be
denominated in a currency other than Dollars or an
Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of
such requested Letter of Credit issue Letters of Credit in
the requested currency;
(F) such Letter of Credit (other than the Existing
Letters of Credit or extensions or renewals thereof)
contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(G) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Company or
such Lender to eliminate the L/C Issuer's risk with respect
to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit,
excluding, except with respect to the requirement under Section
2.03(ii)(B) that the expiry date of such Letter of Credit not
occur after the Letter of Credit Expiration Date, all Existing
Letters of Credit, if the L/C Issuer would not be permitted at
such time to issue such Letter of Credit in its amended form
under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to
such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent
in
36
Article IX with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters
of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended,
as the case may be, upon the request of the Company
delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a
Responsible Officer of the Company. Such Letter of Credit
Application must be received by the L/C Issuer and the
Administrative Agent not later than 10:00 a.m. at least two
Business Days (or such other date and time as the
Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer:
(A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested
Letter of Credit; and (H) such other matters as the L/C
Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter
of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to
be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C
Issuer may require. Additionally, the Company shall furnish
to the L/C Issuer and the Administrative Agent such other
documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may
require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of
Credit Application from the Company and, if not, the L/C
Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has received written notice
from any Lender, the Administrative Agent or any Loan Party,
at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of
the Company (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary
business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and
37
unconditionally agrees to, purchase from the L/C Issuer a
risk participation in such Letter of Credit in an amount
equal to the product of such Lender's Applicable Percentage
times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its
sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an
"Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer
to prevent any such extension at least once in each twelve-
month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be agreed upon
at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Company shall not
be required to make a specific request to the L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit
has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration
Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has
determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section
2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Extension Notice Date
(1) from the Administrative Agent that the Required Lenders
have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Company that one
or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing
the L/C Issuer not to permit such extension.
(iv) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the
L/C Issuer will also deliver to the Company and the
Administrative Agent a true and complete copy of such Letter
of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of
Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of
Credit denominated in an Alternative Currency, the Company
shall reimburse the L/C Issuer in such Alternative Currency,
unless (A) the L/C Issuer (at its option with respect to
standby letters of credit, but only with mutual agreement
between the Company and the L/C Issuer with respect to
commercial letters of credit) shall have specified in
such notice that it will require reimbursement in Dollars,
or (B) in the absence of any such requirement for
reimbursement in Dollars, the Company shall have notified
the L/C Issuer promptly following receipt of the notice of
drawing that the Company will reimburse the L/C Issuer in
Dollars (subject to the mutual agreement of the L/C
38
Issuer with respect to reimbursement of commercial
letters of credit). In the case of any such reimbursement
in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency, the L/C Issuer
shall notify the Company of the Dollar Equivalent of
the amount of the drawing promptly following the
determination thereof. Not later than 11:00 a.m. on the
date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, or the Applicable Time
on the date of any payment by the L/C Issuer under a Letter
of Credit to be reimbursed in an Alternative Currency (each
such date, an "Honor Date"), the Company shall reimburse the
L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing and in the applicable
currency. If the Company fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of
the Dollar Equivalent thereof in the case of a Letter of
Credit denominated in an Alternative Currency) (the
"Unreimbursed Amount"), and the amount of such Lender's
Applicable Percentage thereof. In such event, the Company
shall be deemed to have requested a Committed Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the
amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer, in
Dollars, at the Administrative Agent's Office for Dollar-
denominated payments in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00
p.m. on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to
the L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is
not fully refinanced by a Committed Borrowing of Base Rate
Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Company
shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lender's
payment to the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such
Lender in satisfaction of its participation obligation under
this Section 2.03.
39
(iv) Until each Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the
L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Applicable Percentage
of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Committed Loans
or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the
Company, any Subsidiary or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however,
that each Lender's obligation to make Committed Loans
pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by
the Company of a Committed Loan Notice). No such making of
an L/C Advance shall relieve or otherwise impair the
obligation of the Company to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any
amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is
required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus
any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the foregoing.
If such Lender pays such amount (less such interest and fees
as aforesaid), the amount so paid shall constitute such
Lender's Committed Loan included in the relevant Committed
Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C
Issuer submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any
Lender such Lender's L/C Advance in respect of such payment
in accordance with Section 2.03(c), if the Administrative
Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest
thereon (whether directly from the Company or otherwise,
including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof
(appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's L/C
Advance was outstanding) in Dollars and in the same funds as
those received by the Administrative Agent.
40
(ii) If any payment received by the Administrative
Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant
to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Applicable
Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per
annum equal to the applicable Overnight Rate from time to
time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations
and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Company to
reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense or other right that the Company or any Subsidiary
may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or
by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such
Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates
or in the availability of the relevant Alternative Currency
to the Company or any Subsidiary or in the relevant currency
markets generally; or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company or any
Subsidiary.
41
The Company shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in
the event of any claim of noncompliance with the Company's
instructions or other irregularity, the Company will immediately
notify the L/C Issuer. The Company shall be conclusively deemed
to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such
document. None of the L/C Issuer, the Administrative Agent, any
of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any
Letter of Credit or Issuer Document. The Company hereby assumes
all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights
and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee
of the L/C Issuer shall be liable or responsible for any of
the matters described in clauses (i) through (v) of Section
2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Company may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company,
to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by the Company
which the Company proves were caused by the L/C Issuer's willful
misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter
of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective
for any reason.
(g) Cash Collateral. (i) Upon the request of the
Administrative Agent, (A) if the L/C Issuer has honored any
full or partial drawing request under any Letter of Credit
and such drawing has resulted in an L/C Borrowing, or (B)
if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Company
shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations.
(ii) In addition, if the Administrative Agent notifies
the Company at any time that the Outstanding Amount of all
L/C Obligations at such time exceeds 105% of the Letter of
Credit Sublimit then in effect, then, within two Business
Days after receipt of
42
such notice, the Company shall Cash Collateralize the
L/C Obligations in an amount equal to the amount by which
the Outstanding Amount of all L/C Obligations exceeds the
Letter of Credit Sublimit.
(iii) The Administrative Agent may, at any time and
from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be
provided in order to protect against the results of exchange
rate fluctuations.
(iv) Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section
8.02(c), "Cash Collateralize" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit
of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Company hereby grants
to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, interest bearing deposit accounts at
Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise
expressly agreed by the L/C Issuer and the Company when a Letter
of Credit is issued (including any such agreement applicable to
an Existing Letter of Credit), (i) the rules of the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at
the time of issuance shall apply to each commercial Letter of
Credit.
(i) Letter of Credit Fees. The Company shall pay to the
Administrative Agent for the account of each Lender in accordance
with its Applicable Percentage, in Dollars, a Letter of Credit
fee (the "Letter of Credit Fee") for each Letter of Credit equal
to the Applicable Rate times the Dollar Equivalent of the daily
amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.10. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears
and (ii) due and payable on the first Business Day after the end
of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter
of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required
Lenders, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges
Payable to L/C Issuer. The Company shall pay directly to the L/C
Issuer for its own account, in Dollars, a fronting fee (i) with
respect to each commercial Letter of Credit, at the rate equal to
0.125% of the amount of such Letter of Credit, computed on the
Dollar Equivalent of the amount of such Letter of Credit,
43
and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount
of such Letter of Credit, at a rate separately agreed between the
Company and the L/C Issuer, computed on the Dollar Equivalent of
the amount of such increase, and payable upon the effectiveness
of such amendment, and (iii) with respect to each standby Letter
of Credit, at the rate per annum equal to 0.125%, computed on the
Dollar Equivalent of the daily amount available to be drawn under
such Letter of Credit on a quarterly basis in arrears and due
and payable on the first Business Day after the end of each
March, June, September and December in respect of the most
recently-ended quarterly period (or portion thereof, in the case
of the first payment), commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand. For purposes
of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.10. In addition, the
Company shall pay directly to the L/C Issuer for its own account,
in Dollars, the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time
in effect. Such customary fees and standard costs and charges
are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any
conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries.
Notwithstanding that a Letter of Credit issued or outstanding
hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Company shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries
inures to the benefit of the Company, and that the Company's
business derives substantial benefits from the businesses of such
Subsidiaries.
(m) Reporting of Letter of Credit Information. On (i) the
last Business Day of each calendar month, and (ii) each date that
an L/C Credit Extension occurs with respect to any Letter of
Credit, the L/C Issuer shall deliver to the Administrative Agent
a report in the form of Exhibit F hereto, appropriately completed
with the information for every Letter of Credit issued by the L/C
Issuer that is outstanding hereunder
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the
agreements of the other Lenders set forth in this Section 2.04,
to make loans in Dollars (each such loan, a "Swing Line Loan") to
the Company from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when
aggregated with the Applicable Percentage of the Outstanding
Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such
Lender's Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of
all L/C
44
Obligations, plus such Lender's Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment, and provided, further, that the Company
shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company
may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04. Each Swing Line Loan shall
be a Base Rate Loan. Immediately upon the making of a Swing Line
Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to
the product of such Lender's Applicable Percentage times the
amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall
be made upon the Company's irrevocable notice to the Swing Line
Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 10:00 a.m. on
the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000 and (ii) the
requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. Promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice,
the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has
also received such Swing Line Loan Notice and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or
in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender)
prior to 11:00 a.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the
first proviso to the first sentence of Section 2.04(a), or (B)
that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than
12:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to
the Company either (i) at its office by crediting the account of
the Company on the books of the Swing Line Lender in immediately
available funds, or (ii) by wire transfer to any third party for
which the Company has provided wiring instructions to the Swing
Line Lender not less than two Business Days prior to the related
borrowing date.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Company
(which hereby irrevocably authorizes the Swing Line Lender
to so request on its behalf), that each Lender make a Base
Rate Committed Loan in an amount equal to such Lender's
Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan
Notice for purposes hereof) and in accordance with
the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized
portion of the Aggregate Commitments and the conditions set
forth in Section
45
4.02. The Swing Line Lender shall furnish the Company with
a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent.
Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Committed Loan
Notice available to the Administrative Agent in Same Day
Funds for the account of the Swing Line Lender at the
Administrative Agent's Office for Dollar-denominated
payments not later than 10:00 a.m. on the day specified
in such Committed Loan Notice, whereupon, subject to Section
2.04(c) (ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to
the Company in such amount. The Administrative Agent shall
remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with
Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein
shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the
Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c)
by the time specified in Section 2.04(c)(i), the Swing Line
Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such
payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per
annum equal to the applicable Overnight Rate from time to
time in effect, plus any administrative processing or
similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such
amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender's Committed Loan included
in the relevant Committed Borrowing or funded participation
in the relevant Swing Line Loan, as the case may be. A
certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive
absent manifest error.
(iv) Each Lender's obligation to make Committed Loans
or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing
Line Lender, the Company or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that
each Lender's obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth
in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the
Company to repay Swing Line Loans, together with interest as
provided herein.
46
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and
funded a risk participation in a Swing Line Loan, if the
Swing Line Lender receives any payment on account of such
Swing Line Loan, the Swing Line Lender will distribute to
such Lender its Applicable Percentage of such payment
(appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's
risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender
in respect of principal or interest on any Swing Line Loan
is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the
Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable
Overnight Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination
of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing
Line Lender shall be responsible for invoicing the Company
for interest on the Swing Line Loans. Until each Lender funds
its Base Rate Committed Loan or risk participation pursuant to
this Section 2.04 to refinance such Lender's Applicable
Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the
Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company
shall make all payments of principal and interest in respect of
the Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments. (a) Each Borrower may, upon notice from
the Company to the Administrative Agent, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 10:00 a.m.
(A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars, (B) four Business
Days (or five, in the case of prepayment of Loans denominated in
Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies,
and (C) on the date of prepayment of Base Rate Committed Loans;
(ii) any prepayment of Eurocurrency Rate Loans denominated in
Dollars shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; (iii) any prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies
shall be in a minimum principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iv) any prepayment
of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in
each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount
of such prepayment and the Type(s) of Committed Loans to be
prepaid and, if Eurocurrency Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender's Applicable Percentage of such
prepayment. If
47
such notice is given by the Company, the
applicable Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the
date specified therein. Any prepayment of a Eurocurrency Rate
Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant
to Section 3.05. Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their
respective Applicable Percentages.
(b) The Company may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from
time to time, voluntarily prepay Swing Line Loans in whole or in
part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative
Agent not later than 10:00 a.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and
amount of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable
on the date specified therein.
(c) If the Administrative Agent notifies the Company at any
time that the Total Outstandings at such time exceed the
Aggregate Commitments then in effect, then, within two Business
Days after receipt of such notice, the Borrowers shall prepay
Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to
exceed 100% of the Aggregate Commitments then in effect; provided,
however, that, subject to the provisions of Section 2.03(g)(ii),
the Company shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Loans the Total Outstandings exceed the
Aggregate Commitments then in effect. The Administrative Agent
may, at any time and from time to time after the initial deposit
of such Cash Collateral, request that additional Cash Collateral
be provided in order to protect against the results of further
exchange rate fluctuations.
(d) If the Administrative Agent notifies the Company at any
time that the Outstanding Amount of all Loans denominated in
Alternative Currencies at such time exceeds the Alternative
Currency Sublimit then in effect, then, within two Business Days
after receipt of such notice, the Borrowers shall prepay Loans in
an aggregate amount sufficient to reduce such Outstanding Amount
as of such date of payment to an amount not to exceed 100% of the
Alternative Currency Sublimit then in effect.
2.06 Termination or Reduction of Commitments. The Company
may, upon notice to the Administrative Agent, terminate the
Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than
10:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof, (iii) the Company shall not
terminate or reduce the Aggregate Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Aggregate Commitments, and
(iv) if, after giving effect to any reduction of the Aggregate
Commitments, the Alternative Currency Sublimit, the Letter of
Credit Sublimit, the Designated Borrower Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments,
such
48
Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the
Aggregate Commitments. The amount of any such Aggregate
Commitment reduction shall not be applied to the Alternative
Currency Sublimit or the Letter of Credit Sublimit unless
otherwise specified by the Company. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Applicable Percentage. All fees accrued
until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans. (a) Each Borrower shall repay to
the Lenders on the Maturity Date the aggregate principal amount
of Committed Loans made to such Borrower outstanding on such date.
(b) The Company shall repay each Swing Line Loan on the
earlier to occur of (i) the date ten Business Days after such
Loan is made and (ii) the Maturity Date.
2.08 Interest. (a) Subject to the provisions of subsection
(b) below, (i) each Eurocurrency Rate Loan shall bear interest on
the outstanding principal amount thereof for each Interest Period
at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a
Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the
Mandatory Cost; (ii) each Base Rate Committed Loan shall bear
interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid
when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan)
payable by any Borrower under any Loan Document is not paid
when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise,
then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while
any Event of Default exists, the Borrowers shall pay
interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and
payable upon demand.
49
(c) Interest on each Loan shall be due and payable in
arrears on each Interest Payment Date applicable thereto and at
such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof
before and after judgment, and before and after the commencement
of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), (i)
whenever a rate of interest or fee rate hereunder is calculated
on the basis of a year (the "deemed year") that contains fewer
days than the actual number of days in the calendar year of
calculation, such rate of interest or fee rate shall be expressed
as a yearly rate by multiplying such rate of interest or fee rate
by the actual number of days in the calendar year of calculation
and dividing it by the number of days in the deemed year, (ii)
the principle of deemed reinvestment of interest shall not apply
to any interest calculation hereunder and (iii) the rates of
interest stipulated herein are intended to be nominal rates and
not effective rates or yields.
2.09 Fees. In addition to certain fees described in
subsections (i) and (j) of Section 2.03:
(a) Facility Fee. The Company shall pay to the
Administrative Agent for the account of each Lender in
accordance with its Applicable Percentage, a facility fee in
Dollars equal to the Applicable Rate times the actual daily
amount of the Aggregate Commitments (or, if the Aggregate
Commitments have terminated, on the Outstanding Amount of all
Committed Loans, Swing Line Loans and L/C Obligations),
regardless of usage. The facility fee shall accrue at all
times during the Availability Period (and
thereafter so long as any Committed Loans, Swing Line Loans or
L/C Obligations remain outstanding), including at any time during
which one or more of the conditions in Article IV is not met, and
shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing
Date, and on the Maturity Date (and, if applicable, thereafter on
demand). The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.
(b) Other Fees. (i) The Company shall pay to BAS and the
Administrative Agent for their own respective accounts, in
Dollars, fees in the amounts and at the times specified in the
Fee Letter. Such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
(ii) The Company shall pay to the Lenders, in Dollars, such
fees as shall have been separately agreed upon in writing in the
amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation of Interest and Fees; Retroactive
Adjustments of Applicable Rate. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank
of America's "prime rate" shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed.
All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as
50
applicable, being paid than if computed on the basis of a 365-
day year), or, in the case of interest in respect of Committed
Loans denominated in Alternative Currencies as to
which market practice differs from the foregoing, in accordance
with such market practice. Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or
such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall
be conclusive and binding for all purposes, absent manifest
error.
(b) If, as a result of any restatement of or other
adjustment to the financial statements of the Company or for any
other reason, the Company or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Company as of
any applicable date was inaccurate and (ii) a proper
calculation of the Consolidated Leverage Ratio would have
resulted in higher pricing for such period, each Borrower
shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or
the L/C Issuer, as the case may be, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to any Borrower
under Debtor Relief Laws automatically and without further
action by the Administrative Agent, any Lender or the L/C
Issuer), an amount equal to the excess of the amount of interest
and fees that should have been paid for such period over the
amount of interest and fees actually paid for such period.
This paragraph shall not limit the rights of the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII.
The Company's obligations under this paragraph shall survive
the termination of the Aggregate Commitments and the repayment
of all other Obligations hereunder.
2.11 Evidence of Debt. (a) The Credit Extensions made by
each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained
by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made
by the Lenders to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in
the absence of manifest error. Upon the request of any Lender to
a Borrower made through the Administrative Agent, such Borrower
shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender's
Loans to such Borrower in addition to such accounts or records.
Each Lender may attach schedules to a Note and endorse thereon
the date, Type (if applicable), amount, currency and maturity of
its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any
Lender in respect of such
51
matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.12 Payments Generally; Administrative Agent's Clawback.(a)
General. All payments to be made by the Borrowers shall be made
without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided
herein and except with respect to principal of and interest on
Loans denominated in an Alternative Currency, all payments by the
Borrowers hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment
is owed, at the applicable Administrative Agent's Office in
Dollars and in Same Day Funds not later than 11:00 a.m. on the
date specified herein. Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder with respect to
principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed,
at the applicable Administrative Agent's Office in such
Alternative Currency and in Same Day Funds not later than the
Applicable Time specified by the Administrative Agent on the
dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments
due under this Agreement be made in the United States. If, for
any reason, any Borrower is prohibited by any Law from making any
required payment hereunder in an Alternative Currency, such
Borrower shall make such payment in Dollars in the Dollar
Equivalent of the Alternative Currency payment amount. The
Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received
by the Administrative Agent (i) after 11:00 a.m., in the case of
payments in Dollars, or (ii) after the Applicable Time specified
by the Administrative Agent in the case of payments in an
Alternative Currency, shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or
fee shall continue to accrue. If any payment to be made by any
Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and
such extension of time shall be reflected in computing interest
or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative
Agent. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Committed
Borrowing of Eurocurrency Rate Loans (or, in the case of any
Committed Borrowing of Base Rate Loans, prior to 12:00 p.m. on
the date of such Committed Borrowing) that such Lender will not
make available to the Administrative Agent such Lender's share of
such Committed Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed
Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by
Section 2.02) and may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount in Same Day Funds with interest
thereon, for each day from and including the date such amount is
made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the Overnight Rate, plus any
administrative, processing or
52
similar fees customarily charged by the Administrative Agent in
connection with the foregoing, and (B) in the case of a payment
to be made by such Borrower, the interest rate applicable to
Base Rate Loans. If such Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit
to such Borrower the amount of such interest paid by such
Borrower for such period. If such Lender pays its share of
the applicable Committed Borrowing to the Administrative Agent,
then the amount so paid shall constitute such Lender's Committed
Loan included in such Committed Borrowing. Any payment by
such Borrower shall be without prejudice to any claim such
Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have received
notice from a Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or
the L/C Issuer hereunder that such Borrower will not make such
payment, the Administrative Agent may assume that such Borrower
has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders
or the L/C Issuer, as the case may be, the amount due. In such
event, if such Borrower has not in fact made such payment, then
each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or the L/C
Issuer, in Same Day Funds with interest thereon, for each day
from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at
the Overnight Rate.
A notice of the Administrative Agent to any Lender or
Borrower with respect to any amount owing under this subsection
(b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender
makes available to the Administrative Agent funds for any Loan to
be made by such Lender to any Borrower as provided in the
foregoing provisions of this Article II, and such funds are not
made available to such Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such
Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the
Lenders hereunder to make Committed Loans, to fund participations
in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Committed Loan, to fund any
such participation or to make any payment under Section 10.04(c)
on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender
to so make its Committed Loan, to purchase its participation or
to make its payment under Section 10.04(c).
(e) Funding Source. Nothing herein shall be deemed to
obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by
any
53
Lender that it has obtained or will obtain the funds for any Loan
in any particular place or manner.
2.13 Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any
of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it resulting in such
Lender's receiving payment of a proportion of the aggregate
amount of such Committed Loans or participations and accrued
interest thereon greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in
the Committed Loans and subparticipations in the L/C Obligations
and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued
interest on their respective Committed Loans and other amounts
owing them, provided that:
(i) if any such participations or subparticipations
are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest;
and
(ii) the provisions of this Section shall not be
construed to apply to (x) any payment made by a Borrower
pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a
participation in any of its Committed Loans or
subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than to the Company or
any Subsidiary thereof (as to which the provisions of this
Section shall apply).
Each Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff
and counterclaim with respect to such participation as fully as
if such Lender were a direct creditor of such Borrower in the
amount of such participation.
2.14 Designated Borrowers. (a) Effective as of the date
hereof Merriam Financial Services, Ltd., a Bermuda exempt company,
shall be a "Designated Borrower" hereunder and may receive Loans
for its account on the terms and conditions set forth in this
Agreement.
(b) The Company may at any time, upon not less than 15
Business Days' notice from the Company to the Administrative
Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), designate any
additional Subsidiary of the Company (an "Applicant Borrower") as
a Designated Borrower to receive Loans hereunder by delivering to
the Administrative Agent (which shall promptly deliver
counterparts thereof to each Lender) a duly executed notice and
agreement in substantially the form of Exhibit G (a "Designated
Borrower Request and Assumption Agreement"). The parties hereto
acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for
54
herein the Administrative Agent and the Lenders shall have
received (i) in the case of any Applicant
Borrower that is a Foreign Subsidiary, an executed Company
Guaranty and (ii) in the case of all Applicant Borrowers, such
supporting resolutions, incumbency certificates, opinions of
counsel and other documents or information, each in form, content
and scope reasonably satisfactory to the Administrative Agent, as
may be required by the Administrative Agent or the Required
Lenders in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. If the
Administrative Agent and the Required Lenders agree that an
Applicant Borrower shall be entitled to receive Loans hereunder,
then promptly following receipt of all such requested
resolutions, incumbency certificates, opinions of counsel and
other documents or information, the Administrative Agent shall
send a notice in substantially the form of Exhibit H (a
"Designated Borrower Notice") to the Company and the Lenders
specifying the effective date upon which the Applicant Borrower
shall constitute a Designated Borrower for purposes hereof,
whereupon each of the Lenders agrees to permit such Designated
Borrower to receive Loans hereunder, on the terms and conditions
set forth herein, and each of the parties agrees that such
Designated Borrower otherwise shall be a Borrower for all
purposes of this Agreement; provided that no Committed Loan
Notice or Letter of Credit Application may be submitted by or on
behalf of such Designated Borrower until the date five Business
Days after such effective date.
(c) The Obligations of the Company and each Designated
Borrower that is a Domestic Subsidiary shall be joint and several
in nature with respect to Committed Loans made to any Designated
Borrower. The Obligations of all Designated Borrowers that are
Foreign Subsidiaries shall be several in nature.
(d) Each Subsidiary of the Company that is or becomes a
"Designated Borrower" pursuant to this Section 2.14 hereby
irrevocably appoints the Company as its agent for all purposes
relevant to this Agreement and each of the other Loan Documents,
including (i) the giving and receipt of notices, (ii) the
execution and delivery of all documents, instruments and
certificates contemplated herein and all modifications hereto,
and (iii) the receipt of the proceeds of any Loans made by the
Lenders, to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action
which might otherwise be valid or effective only if given or
taken by all Borrowers, or by each Borrower acting singly, shall
be valid and effective if given or taken only by the Company,
whether or not any such other Borrower joins therein. Any
notice, demand, consent, acknowledgement, direction,
certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to
have been delivered to each Designated Borrower.
(e) The Company may from time to time, upon not less than
15 Business Days' notice from the Company to the Administrative
Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate a
Designated Borrower's status as such, provided that there are no
outstanding Loans payable by such Designated Borrower, or other
amounts payable by such Designated Borrower on account of any
Loans made to it, and there are no outstanding Letters of Credit
issued for the benefit of such Designated Borrower, as of the
effective date of such termination. The Administrative Agent will
promptly notify the Lenders of any such termination of a
Designated Borrower's status.
55
2.15 Increase in Commitments.
(a) Request for Increase. Provided there exists no Default
and the Company has made no voluntary reduction of the Aggregate
Commitments pursuant to Section 2.06, upon notice to the
Administrative Agent (which shall promptly notify the Lenders),
the Company may from time to time, request an increase in the
Aggregate Commitments by an amount (for all such requests) not
exceeding $50,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $15,000,000, and (ii)
the Company may make a maximum of three such requests. At the
time of sending such notice, the Company (in consultation with
the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of
such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify
the Administrative Agent within such time period whether or not
it agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding
within such time period shall be deemed to have declined to
increase its Commitment.
(c) Notification by Administrative Agent; Additional
Lenders. The Administrative Agent shall notify the Company and
each Lender of the Lenders' responses to each request made
hereunder. To achieve the full amount of a requested increase
and subject to the approval of the Administrative Agent and the
L/C Issuers (which approvals shall not be unreasonably withheld,
conditioned or delayed), the Company may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the Aggregate
Commitments are increased in accordance with this Section, the
Administrative Agent and the Company shall determine the
effective date (the "Increase Effective Date") and the final
allocation of such increase. The Administrative Agent shall
promptly notify the Company and the Lenders of the final
allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a
condition precedent to such increase, the Company shall deliver
to the Administrative Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer (i) certifying and attaching the
resolutions adopted by the Borrowers approving or consenting to
such increase, and (ii) certifying that, before and after giving
effect to such increase, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and
correct in all material respects on and as of the Increase
Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of
such earlier date, and except that for purposes of this Section
2.15, the representations and warranties contained in subsections
(a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default exists. The
Borrowers shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the
outstanding
56
Committed Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under
this Section.
(f) Conflicting Provisions. This Section shall supersede
any provisions in Sections 2.13 or 10.01 to the contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold;
Payments on Account of Taxes.
(i) Any and all payments by or on account of any
obligation of the respective Borrowers hereunder or under
any other Loan Document shall to the extent permitted by
applicable Laws be made free and clear of and without
reduction or withholding for any Taxes. If, however,
applicable Laws require any Borrower or the Administrative
Agent to withhold or deduct any Tax, such Tax shall be
withheld or deducted in accordance with such Laws as
determined by such Borrower or the Administrative Agent, as
the case may be, upon the basis of the information
and documentation to be delivered pursuant to subsection (e)
below.
(ii) If any Borrower or the Administrative Agent shall
be required by the Code to withhold or deduct any Taxes,
including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions
as are determined by the Administrative Agent to be required
based upon the information and documentation it has received
pursuant to subsection (e) below, (B) the Administrative
Agent shall timely pay the full amount withheld or deducted
to the relevant Governmental Authority in accordance with
the Code, and (C) to the extent that the withholding or
deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by such Borrower shall be increased
as necessary so that after any required withholding or the
making of all required deductions (including deductions
applicable to additional sums payable under this Section)
the Administrative Agent, Lender or L/C Issuer, as the case
may be, receives an amount equal to the sum it would have
received had no such withholding or deduction been made.
(iii) If any Borrower or the Administrative Agent shall
be required by any applicable Laws other than the Code to
withhold or deduct any Taxes from any payment, then (A) such
Borrower or the Administrative Agent, as required by such
Laws, shall withhold or make such deductions as are
determined by it to be required based upon the information
and documentation it has received pursuant to subsection (e)
below, (B) such Borrower or the Administrative Agent, to the
extent required by such Laws, shall make such deductions and
(iii) such Borrower shall timely pay the full amount so
withheld or deducted by it to the relevant Governmental
Authority in accordance with such Laws, and (C) to the
extent that the withholding or deduction is made on account
of Indemnified Taxes or Other Taxes, the sum payable by such
Borrower shall be increased as necessary
57
so that after any required withholding or the making of all
required deductions (including deductions applicable to
additional sums payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may
be, receives an amount equal to the sum it would have
received had no such withholding or deduction been made.
(iv) Notwithstanding the foregoing, no Designated Borrower
that is a Foreign Subsidiary is required to make an
increased payment to the Administrative Agent, a Lender or
an L/C Issuer under this Section 3.01(a) for a Tax Deduction
in respect of a tax imposed by the United Kingdom from a
payment of interest on a Loan, if on the date on which the
payment falls due:
(A) the payment could have been made to the
Administrative Agent, Lender or L/C Issuer without
a Tax Deduction if such Administrative Agent, Lender or
L/C Issuer was a Qualifying Lender, but on that date
such Administrative Agent, Lender or L/C Issuer, as
applicable, is not or has ceased to be a Qualifying
Lender other than as a result of any change after the
date it became the Administrative Agent, a Lender or an
L/C Issuer under this Agreement in (or in the
interpretation, administration, or application of) any
law or Treaty, or any published practice or concession
of any relevant taxing authority; or
(B) (i) the relevant Administrative Agent, Lender
or L/C Issuer is a Qualifying Lender solely under sub-
paragraph (b) of the definition of Qualifying Lender;
(ii) the Board of the Inland Revenue has given (and not
revoked) a direction (a "Direction") under section 349C
of the Taxes Act (as that provision has effect on the
date on which the Administrative Agent, Lender or L/C
Issuer became a party to this Agreement) which relates
to that payment and that the Administrative Agent,
Lender or L/C Issuer has received from such Designated
Borrower that is a Foreign Subsidiary a certified copy
of that Direction; and (iii) the payment could have
been made to such Designated Borrower that is a Foreign
Subsidiary without any Tax Deduction in the absence of
that Direction;
(C) the Administrative Agent, Lender or L/C
Issuer, as applicable, is a Qualifying Lender solely
under subparagraph (b) of the definition of Qualifying
Lender and it has not, other than by reason of any
change after the date of this Agreement in (or in the
interpretation, administration, or application of) any
law, or any published practice or concession of any
relevant taxing authority, given a Tax Confirmation to
such Designated Borrower that is a Foreign Subsidiary;
or
(D) the Administrative Agent, Lender or L/C
Issuer, as applicable, is a Treaty Lender and such
Designated Borrower that is a Foreign Subsidiary making
the payment is able to demonstrate to the
Administrative Agent, such Lender or L/C Issuer, as
applicable, with a certificate or other supporting
evidence from the appropriate Governmental Authority,
that the payment could have been made to the
Administrative Agent, Lender or L/C Issuer, as
applicable, without the Tax Deduction had the
Administrative Agent, such Lender or L/C Issuer
completed all
58
procedural formalities necessary for such Designated
Borrower that is a Foreign Subsidiary to obtain
authorization to make that payment without a Tax
Deduction.
(b) Payment of Other Taxes by the Borrowers. Without
limiting the provisions of subsection (a) above, each Borrower
shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.
(c) Tax Indemnifications.
(i) Without limiting the provisions of subsection (a)
or (b) above, each Borrower shall, and does hereby,
indemnify the Administrative Agent, each Lender and the L/C
Issuer, and shall make payment in respect thereof within ten
days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) withheld or
deducted by such Borrower or the Administrative Agent or
paid by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority provided, that if the
applicable Borrower reasonably believes that such Taxes were
not correctly or legally asserted, the Lender or the L/C
Issuer, as the case may be, will use reasonable efforts to
cooperate with such Borrower to obtain a refund of such
Taxes so long as such efforts would not, in the reasonable
determination of the Lender or the L/C Issuer, as the case
may be, result in any additional costs, expenses or risks or
otherwise be disadvantageous to it. Each Borrower shall
also, and does hereby, indemnify the Administrative
Agent, and shall make payment in respect thereof within ten
days after demand therefor, for any amount which a Lender or
the L/C Issuer for any reason fails to pay indefeasibly to
the Administrative Agent as required by clause (ii) of this
subsection. A certificate as to the amount of any such
payment or liability delivered to a Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf
of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.
(ii) Without limiting the provisions of subsection (a)
or (b) above, each Lender and the L/C Issuer shall, and does
hereby, indemnify each Borrower and the Administrative Agent,
and shall make payable in respect thereof within ten days
after demand therefore, against any and all Taxes and any
and all related losses, claims, liabilities, penalties,
interest and expenses (including the fees, charges and
disbursements of any counsel for any Borrower or the
Administrative Agent) incurred by or asserted against any
Borrower or the Administrative Agent by any Governmental
Authority as a direct result of the failure by such Lender
or the L/C Issuer, as the case may be, to deliver, or as a
direct result of the inaccuracy, inadequacy or deficiency of,
any documentation required to be delivered by such Lender or
the L/C Issuer, as the case may be, to such Borrower or the
Administrative Agent pursuant to subsection (e). Each
Lender and the L/C Issuer hereby authorizes the
Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender or the L/C Issuer,
as the case may be, under this Agreement or any other Loan
Document against any amount due to
59
the Administrative Agent under this clause (ii). The
agreements in the clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or
the L/C Issuer, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all other
Obligations.
(d) Evidence of Payments. Upon request by a Borrower or the
Administrative Agent, as the case may be, after any payment of
Taxes by such Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, such
Borrower shall deliver to the Administrative Agent or the
Administrative Agent shall deliver to such Borrower, as the case
may be, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of
any return required by Laws to report such payment or other
evidence of such payment reasonably satisfactory to such Borrower
or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Company and to
the Administrative Agent, at the time or times prescribed by
applicable Laws or when reasonably requested by the Company
or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by
the taxing authorities of any jurisdiction and such other
reasonably requested information as will permit the Company
or the Administrative Agent, as the case may be, to
determine (A) whether or not payments made by the respective
Borrowers hereunder or under any other Loan Document are
subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender's entitlement
to any available exemption from, or reduction of, applicable
Taxes in respect of all payments to be made to such Lender
by the respective Borrowers pursuant to this Agreement or
otherwise to establish such Lender's status for withholding
tax purposes in the applicable jurisdictions.
(ii) Without limiting the generality of the foregoing,
if a Borrower is resident for tax purposes in the
United States,
(A) any Lender that is a "United States
person" within the meaning of Section 7701(a)(30) of
the Code shall deliver to the Company and the
Administrative Agent executed originals of Internal
Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably
requested by the Company or the Administrative Agent as
will enable such Borrower or the Administrative Agent,
as the case may be, to determine whether or not such
Lender is subject to backup withholding or information
reporting requirements; and
(B) Each Foreign Lender that is entitled under
the Code or any applicable treaty to an exemption from
or reduction of withholding tax with respect to
payments hereunder or under any other Loan Document
shall deliver to the Company and the Administrative
Agent (in such number of copies as shall be requested
by the recipient) on or prior to the date on which such
Foreign Lender
60
becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Company on
behalf of such Borrower or the Administrative Agent,
but only if such Foreign Lender is legally entitled to
do so), whichever of the following is applicable:
(I)executed originals of Internal Revenue
Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the
United States is a party,
(II) executed originals of Internal Revenue
Service Form W-8ECI,
(III) executed originals of Internal
Revenue Service Form W-8IMY and all required
supporting documentation,
(IV) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender
is not (A) a "bank" within the meaning of section
881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of such Borrower within the meaning
of section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in
section 881(c)(3)(C) of the Code and (y) executed
originals of Internal Revenue Service Form W-8BEN,
or
(V) executed originals of any other form
prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United
States Federal withholding tax together with such
supplementary documentation as may be prescribed
by applicable Laws to permit such Borrower or the
Administrative Agent to determine the withholding
or deduction required to be made.
(iii) Each Lender shall promptly (A) notify the
Company and the Administrative Agent of any change in
circumstances which would modify or render invalid any
claimed exemption or reduction, and (B) take such steps as
shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws of any
jurisdiction that any Borrower or the Administrative Agent
make any deduction or withholding for taxes from amounts
payable to such Lender.
(iv) Each of the Borrowers shall promptly deliver to
the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably
request, on or prior to the Closing Date (or such later date
on which it first becomes a Borrower), and in a timely
fashion thereafter, such documents and forms required by any
relevant taxing authorities under the Laws of any
jurisdiction, duly executed and completed by such Borrower,
as are required to be furnished by such Lender or the
Administrative Agent under such Laws in connection with any
payment by the Administrative Agent or any
61
Lender of Taxes or Other Taxes, or otherwise in connection
with the Loan Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. Unless required by
applicable Laws, at no time shall the Administrative Agent
have any obligation to file for or otherwise pursue on behalf of
a Lender or the L/C Issuer, or have any obligation to pay to any
Lender or the L/C Issuer, any refund of Taxes withheld or
deducted from funds paid for the account of such Lender or the
L/C Issuer, as the case may be. If the Administrative Agent,
any Lender or the L/C Issuer determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by any Borrower or with respect to
which any Borrower has paid additional amounts pursuant to this
Section, it shall pay to such Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or
additional amounts paid, by such Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses and net of any loss or gain
realized in the conversion of such funds from or to another
currency incurred by the Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with
respect to such refund), provided that each Borrower, upon the
request of the Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent,
such Lender or the L/C Issuer in the event the Administrative
Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. This subsection shall not
be construed to require the Administrative Agent, any Lender or
the L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential)
to any Borrower or any other Person.
3.02 Illegality. If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurocurrency Rate Loans
(whether denominated in Dollars or an Alternative Currency), or
to determine or charge interest rates based upon the Eurocurrency
Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell,
or to take deposits of, Dollars or any Alternative Currency in
the applicable interbank market, then, on notice thereof by such
Lender to the Company through the Administrative Agent, any
obligation of such Lender to make or continue Eurocurrency Rate
Loans in the affected currency or currencies or, in the case of
Eurocurrency Rate Loans in Dollars, to convert Base Rate
Committed Loans to Eurocurrency Rate Loans, shall be suspended
until such Lender notifies the Administrative Agent and the
Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrowers
shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans
are denominated in Dollars, convert all such Eurocurrency Rate
Loans of such Lender to Base Rate Loans, either on the last day
of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain
such Eurocurrency Rate Loans. Upon any such prepayment or
conversion, the Borrowers shall also pay accrued interest on the
amount so prepaid or converted.
3.03 Inability to Determine Rates. If the Required Lenders
determine that for any reason in connection with any request for
a Eurocurrency Rate Loan or a conversion to or
62
continuation thereof that (a) deposits (whether in Dollars or an
Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate
Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan (whether
denominated in Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such
Eurocurrency Rate Loan, the Administrative Agent will promptly so
notify the Company and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the
Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the
Company may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed
to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(i) (i) impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge
or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by,
any Lender (except (A) any reserve requirement contemplated
by Section 3.04(e) and (B) the requirements of the Bank of
England and the Financial Services Authority or the European
Central Bank reflected in the Mandatory Cost, other than as
set forth below) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of
any kind whatsoever with respect to this Agreement, any
Letter of Credit, any participation in a Letter of Credit or
any Eurocurrency Rate Loan made by it, or change the basis
of taxation of payments to such Lender or the L/C Issuer in
respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change
in the rate of, any Excluded Tax payable by such Lender or
the L/C Issuer);
(iii) result in the failure of the Mandatory Cost, as
calculated hereunder, to represent the cost to any Lender of
complying with the requirements of the Bank of England and/
or the Financial Services Authority or the European Central
Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or
(iv) impose on any Lender or the L/C Issuer or the
London interbank market any other condition, cost or expense
affecting this Agreement or Eurocurrency Rate Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurocurrency
Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the L/C Issuer
of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue
any
63
Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender or the L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, the Company will pay
(or cause the applicable Designated Borrower to pay) to such
Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C
Issuer, as the case may be, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer
determines that any Change in Law affecting such Lender or the
L/C Issuer or any Lending Office of such Lender or such Lender's
or the L/C Issuer's holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of
return on such Lender's or the L/C Issuer's capital or on the
capital of such Lender's or the L/C Issuer's holding company, if
any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by
the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender's or the L/C Issuer's holding company
could have achieved but for such Change in Law (taking into
consideration such Lender's or the L/C Issuer's policies and the
policies of such Lender's or the L/C Issuer's holding company
with respect to capital adequacy), then from time to time the
Company will pay (or cause the applicable Designated Borrower to
pay) to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender's or the L/C Issuer's holding
company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a
Lender or the L/C Issuer setting forth in reasonable detail the
amount or amounts necessary to compensate such Lender or the L/C
Issuer or its holding company, as the case may be, as specified
in subsection (a) or (b) of this Section and the manner of
determining such amount and delivered to the Company shall be
conclusive absent manifest error. The Company shall pay (or
cause the applicable Designated Borrower to pay) such Lender or
the L/C Issuer, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a
waiver of such Lender's or the L/C Issuer's right to demand such
compensation, provided that no Borrower shall be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that
such Lender or the L/C Issuer, as the case may be, notifies the
Company of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or the L/C Issuer's intention
to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Additional Reserve Requirements. The Company shall pay
(or cause the applicable Designated Borrower to pay) to each
Lender, (i) as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to the
actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good
64
faith, which determination shall be conclusive), and (ii) as long
as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any other central banking
or financial regulatory authority imposed in respect of the
maintenance of the Commitments or the funding of the Eurocurrency
Rate Loans, such additional costs (expressed as a percentage per
annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such
Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive, which in
each case shall be due and payable on each date on which interest
is payable on such Loan, provided the Company shall have received
at least ten days' prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from
such Lender. If a Lender fails to give notice ten days prior to
the relevant Interest Payment Date, such additional interest or
costs shall be due and payable ten days from receipt of such
notice.
3.05 Compensation for Losses. Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the
Company shall promptly compensate (or cause the applicable
Designated Borrower to compensate) such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it
as a result of:
(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by the Company or the applicable
Designated Borrower;
(c) any failure by any Borrower to make payment of any Loan
or drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date
or any payment thereof in a different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day
other than the last day of the Interest Period therefor as a
result of a request by the Company pursuant to Section 10.13;
including any foreign exchange losses and any loss or expense
arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan, from fees payable to terminate the
deposits from which such funds were obtained or from the
performance of any foreign exchange contract. The Company shall
also pay (or cause the applicable Designated Borrower to pay) any
customary administrative fees charged by such Lender in
connection with the foregoing.
For purposes of calculating amounts payable by the Company (or
the applicable Designated Borrower) to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Rate for
such Loan by a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable
amount and for a comparable period, whether or not such
Eurocurrency Rate Loan was in fact so funded. Any demand for
compensation shall set forth in reasonable detail the amount and
method of determining the loss, cost or expenses claimed.
65
3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any
Lender requests compensation under Section 3.04, or any Borrower
is required to pay any additional amount to any Lender, the L/C
Issuer or any Governmental Authority for the account of any
Lender or the L/C Issuer pursuant to Section 3.01, or if any
Lender gives a notice pursuant to Section 3.02, then such Lender
or the L/C Issuer shall, as applicable, use reasonable efforts to
designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the
judgment of such Lender or the L/C Issuer, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant
to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender
or the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such
Lender or the L/C Issuer, as the case may be. The Company hereby
agrees to pay (or to cause the applicable Designated Borrower to
pay) all reasonable costs and expenses incurred by any Lender or
the L/C Issuer in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 3.04, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01,
the Company may replace such Lender in accordance with Section
10.13.
3.07 Survival. All of the Borrowers' obligations under this
Article III shall survive termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and
resignation of the Administrative Agent.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation
of the L/C Issuer and each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agent's receipt of the following,
each of which shall be originals or telecopies (followed
promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each
dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the
Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement,
sufficient in number for distribution to the Administrative
Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each
Lender requesting Notes;
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(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(iv) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each Loan Party is duly organized or formed, and that the
Company is validly existing, in good standing and qualified
to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct
of its business requires such qualification, except to the
extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect;
(v) a favorable opinion of Stinson Morrison Hecker
LLP, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set
forth in Exhibit I and such other matters concerning the
Loan Parties and the Loan Documents as the Required Lenders
may reasonably request;
(vi) a certificate of a Responsible Officer of each
Loan Party either (A) attaching copies of all consents,
licenses and approvals required in connection with the
execution, delivery and performance by such Loan Party and
the validity against such Loan Party of the Loan Documents
to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of
the Company certifying (A) that the conditions specified in
Sections 4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect; and (C) a calculation
of the Consolidated Leverage Ratio as of March 29, 2008;
(viii) executed counterparts of a Company Guaranty for
each Foreign Obligor that is a Designated Borrower on the
Closing Date, if any; and
(ix) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C
Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing
Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company
shall have paid all fees, charges and disbursements of counsel to
the Administrative Agent to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to
be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of
accounts between the Company and the Administrative Agent).
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Without limiting the generality of the provisions of the
last paragraph of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.01,
each Lender 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 required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender
unless the Administrative Agent shall have received notice from
such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions to all Credit Extensions. The obligation of
each Lender to honor any Request for Credit Extension (other than
a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurocurrency Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties of (i) the Borrowers
contained in Article V and (ii) each Loan Party contained in each
other Loan Document or in any document furnished at any time
under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as
of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer
to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such
proposed Credit Extension or the application of the proceeds
thereof.
(c) The Administrative Agent and, if applicable, the L/C
Issuer or the Swing Line Lender shall have received a Request for
Credit Extension in accordance with the requirements hereof.
(d) If the applicable Borrower is a Designated Borrower,
then the conditions of Section 2.14 to the designation of such
Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.
(e) In the case of a Credit Extension to be denominated in
an Alternative Currency, there shall not have occurred any change
in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which
in the reasonable opinion of the Administrative Agent, the
Required Lenders (in the case of any Loans to be denominated in
an Alternative Currency) or the L/C Issuer (in the case of any
Letter of Credit to be denominated in an Alternative Currency)
would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency.
Each Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Committed Loans to
the other Type or a continuation of Eurocurrency Rate Loans)
submitted by the Company shall be deemed to be a representation
and warranty by each Loan Party that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the
date of the applicable Credit Extension.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative
Agent and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with
Laws. Each Loan Party and each Subsidiary thereof (a) is duly
organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and
approvals to (i) own its assets and carry on its business and
(ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified and is
licensed and in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license,
and (d) is in compliance with all Laws; except in each case
referred to in clause (a) (but only with respect to Non-Material
Subsidiaries), and clauses (b)(i), (c) or (d), to the extent
that failure to do so could not reasonably be expected to have
a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution,
delivery and performance by each Loan Party of each Loan Document
have been duly authorized by all necessary corporate action, and
do not and will not (a) contravene the terms of any of such
Person's Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under,
or require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such
Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law. The Company
and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent
that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, any Borrower
of this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement has been, and each
other Loan Document, when delivered hereunder, will have been,
duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document
when so delivered will constitute, a legal, valid and binding
obligation of each Borrower, enforceable against each Borrower in
accordance with its terms, except as enforceability may be
limited by Debtor Relief Laws and subject to equitable remedies.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein;
(ii) fairly present in all material respects the financial
condition of the Company and its
69
Subsidiaries and Consolidated Entities as of the date thereof
and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted
therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Company and its
Subsidiaries and Consolidated Entities as of the date thereof,
including liabilities for taxes, material commitments and
indebtedness.
(b) The unaudited consolidated balance sheet of the Company
and its Subsidiaries and Consolidated Entities dated
March 29, 2008 and the related consolidated statements of
earnings, shareholders equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly
present in all material respects the financial condition of the
Company and its Subsidiaries and Consolidated Entities as of the
date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other
liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries and Consolidated Entities on the
Closing Date that are not shown on such financial statements,
including liabilities for taxes, material commitments and
Indebtedness.
(c) Since the date of the Audited Financial Statements,
there has been no event or circumstance, either individually or
in the aggregate, that has had or could reasonably be expected to
have a Material Adverse Effect.
5.06 Litigation. There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Company,
threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or
any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions
contemplated hereby, or (b) either individually or in the
aggregate could reasonably be expected to have a Material Adverse
Effect
5.07 No Default. Neither any Loan Party nor any Subsidiary
thereof is in default under or with respect to any Contractual
Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement
or any other Loan Document.
5.08 Ownership of Property; Liens. Each of the Company and
each Subsidiary has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business,
except for such defects in title as could not, individually or
in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Company and its
Subsidiaries is subject to no Liens, other than Liens permitted
by Section 7.01.
5.09 Environmental Compliance. The Company and its
Subsidiaries conduct in the ordinary course of business a review
of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any
Environmental Law on their
70
respective businesses, operations and properties, and as a
result thereof the Company has reasonably concluded that such
Environmental Laws and claims could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
5.10 Insurance. The properties of the Company and its
Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Company, in such
amounts (including self-insurance, if adequate reserves are
maintained with respect thereto), with such deductibles and
covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in
localities where the Company or the applicable Subsidiary
operates.
5.11 Taxes. The Company and its Subsidiaries have filed
all Federal, material state and other material tax returns and
reports required to be filed, and have paid all Federal,
material state and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed
tax assessment against the Company or any Subsidiary that would,
if made, have a Material Adverse Effect. Neither the Company nor
any Subsidiary thereof is party to any tax sharing agreement.
5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of the Company, nothing has
occurred which would prevent, or cause the loss of, such
qualification. The Company and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412
of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) the aggregate Unfunded Pension Liability
of all Pension Plans does not exceed $35,000,000; (iii) neither
the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Company
nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect
to a Multiemployer Plan; and (v) neither the Company nor
71
any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. As of the Closing Date,
the Company has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13 (which Schedule indicates
those Subsidiaries that are Non-Material Subsidiaries), and all
of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and nonassessable and are
owned, directly or indirectly, by the Company in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all
Liens. As of the Closing Date, the Company has no Equity
Interests (other than those permitted by Section 7.02(a)) in any
other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13, and has no control over
any other entity except as disclosed in Part (c) of Schedule
5.13.
5.14 Margin Regulations; Investment Company Act.
(a) No Borrower is engaged and no Borrower will engage,
principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or
drawing under each Letter of Credit, not more than twenty-five
percent (25%) of the value of the assets (either of such Borrower
only or of the Company and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 7.01 or Section 7.05
or subject to any restriction contained in any agreement or
instrument between such Borrower and any Lender or any Affiliate
of any Lender relating to Indebtedness and within the scope of
Section 8.01(e) will be margin stock.
(b) None of the Company, any Person Controlling the Company,
or any Subsidiary is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 Disclosure. The Company has disclosed to the
Administrative Agent and the Lenders all agreements, instruments
and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected
(in light of the circumstances existing at each respective time
this representation is made) to result in a Material Adverse
Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on
behalf of the Company to the Administrative Agent or any Lender
in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under
any other Loan Document (in each case, as modified or
supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that, (a) with respect to projected financial
information, the Company represents only that such information
was prepared in good faith based upon assumptions believed to
be reasonable at the time and (b) with respect to general
industry information, the foregoing representation is only to
the best of the Company's knowledge.
5.16 Compliance with Laws. Each Loan Party and each
Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and
72
decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual Property; Licenses, Etc. The Company and
its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual
property rights (collectively, "IP Rights") that are reasonably
necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the
best knowledge of the Company, no slogan or other advertising
device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the
Company or any Subsidiary infringes upon any rights held by any
other Person. No claim or litigation regarding any of the
foregoing is pending or, to the best knowledge of the Company,
threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect
5.18 Taxpayer Identification Number; Other Identifying
Information. The true and correct U.S. taxpayer identification
number of the Company and each Designated Borrower that is a
Domestic Subsidiary and a party hereto on the Closing Date is set
forth on Schedule 10.02. The true and correct unique
identification number of each Designated Borrower that is a
Foreign Subsidiary and a party hereto on the Closing Date that
has been issued by its jurisdiction of organization and the name
of such jurisdiction are set forth on Schedule 5.18.
5.19 Representations as to Foreign Obligors. Each of the
Company and each Foreign Obligor represents and warrants to the
Administrative Agent and the Lenders that:
(a) Such Foreign Obligor is subject to civil and commercial
Laws with respect to its obligations under this Agreement and the
other Loan Documents to which it is a party (collectively as to
such Foreign Obligor, the "Applicable Foreign Obligor
Documents"), and the execution, delivery and performance by such
Foreign Obligor of the Applicable Foreign Obligor Documents
constitute and will constitute private and commercial acts and
not public or governmental acts. Neither such Foreign Obligor
nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under the laws of the
jurisdiction in which such Foreign Obligor is organized and
existing in respect of its obligations under the Applicable
Foreign Obligor Documents.
(b) The Applicable Foreign Obligor Documents are in proper
legal form under the Laws of the jurisdiction in which such
Foreign Obligor is organized and existing for the enforcement
thereof against such Foreign Obligor under the Laws of such
jurisdiction, and to ensure the legality, validity,
enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents. It is not necessary to
ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Obligor
Documents that the Applicable Foreign Obligor Documents be filed,
registered or recorded with, or executed or notarized before, any
court or other authority in the jurisdiction in which such
Foreign Obligor is organized and existing or that any
registration charge or stamp or similar tax be paid on or in
73
respect of the Applicable Foreign Obligor Documents or any other
document, except for (i) any such filing, registration, recording,
execution or notarization as has been made or is not required to
be made until the Applicable Foreign Obligor Document or any
other document is sought to be enforced and (ii) any charge or
tax as has been timely paid.
(c) There is no tax, levy, impost, duty, fee, assessment or
other governmental charge, or any deduction or withholding,
imposed by any Governmental Authority in or of the jurisdiction
in which such Foreign Obligor is organized and existing either
(i) on or by virtue of the execution or delivery of the
Applicable Foreign Obligor Documents or (ii) on any payment to be
made by such Foreign Obligor pursuant to the Applicable Foreign
Obligor Documents, except as has been disclosed to the
Administrative Agent.
(d) The execution, delivery and performance of the
Applicable Foreign Obligor Documents executed by such Foreign
Obligor are, under applicable foreign exchange control
regulations of the jurisdiction in which such Foreign Obligor is
organized and existing, not subject to any notification or
authorization except (i) such as have been made or obtained or
(ii) such as cannot be made or obtained until a later date
(provided that any notification or authorization described in
clause (ii) shall be made or obtained as soon as is reasonably
practicable).
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
the Company shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, and 6.03) cause each Subsidiary
to:
6.01 Financial Statements. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company (or, if earlier,
15 days after the date required to be filed with the SEC (without
giving effect to any extension permitted thereby)), a
consolidated balance sheet of the Company and its Subsidiaries
and Consolidated Entities as at the end of such fiscal year, and
the related consolidated statements of earnings, shareholders'
equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with
GAAP, such consolidated statements to be audited and accompanied
by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as
to the scope of such audit; and
(b) as soon as practicable, but in any event within 50 days
after the end of each of the first three fiscal quarters of each
fiscal year of the Company (commencing with the fiscal quarter
ended June 28, 2008) (or, if earlier, five days after the date
required to be filed with the SEC
74
(without giving effect to any extension permitted thereby)), a
consolidated balance sheet of the Company and its Subsidiaries
and Consolidated Entities as at the end of such fiscal quarter,
and the related consolidated statements of earnings and cash
flows for such fiscal quarter and for the portion of the
Company's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter
of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, certified by a
Responsible Officer of the Company as fairly presenting in all
material respects the financial condition, results of earnings
and cash flows of the Company and its Subsidiaries and
Consolidated Entities in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant
to Section 6.02(c), the Company shall not be separately required
to furnish such information under clause (a) or (b) above, but
the foregoing shall not be in derogation of the obligation of the
Company to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein
6.02 Certificates; Other Information. Deliver to the
Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required
Lenders:
(a) Not later than ten days after the delivery of the
financial statements referred to in Sections 6.01(a) and (b)
(commencing with the delivery of the financial statements for
the fiscal quarter ended June 28, 2008), a duly completed
Compliance Certificate signed by a Responsible Officer of the
Company;
(b) with reasonable promptness after any request by the
Administrative Agent or any Lender, copies of any detailed audit
reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of
directors) of the Company by independent accountants in
connection with the accounts or books of the Company or any
Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Company, and copies
of all annual, regular, periodic and special reports and
registration statements which the Company may file or be required
to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered
to the Administrative Agent pursuant hereto;
(d) promptly, after the same are available, copies of each
notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other
inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof; and
(e) with reasonable promptness, such additional
information regarding the business, financial or corporate
affairs of any Loan Party or any Subsidiary, or compliance with
the terms of the Loan Documents, as the Administrative Agent or
any Lender may from time to time reasonably request.
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Documents required to be delivered pursuant to Section
6.01(a) or (b) or Section 6.02(c) (to the extent any such
documents are included in materials otherwise filed with the SEC)
may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the
Company posts such documents, or provides a link thereto on the
Company's website on the Internet at the website address listed
on Schedule 10.02; or (ii) on which such documents are posted on
the Company's behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored
by the Administrative Agent); provided that: (i) the Company
shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to
deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or
such Lender and (ii) the Company shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper
copies of the Compliance Certificates required by Section 6.02(a)
to the Administrative Agent. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility
to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such
documents.
Each Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arrangers will make available to
the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrowers hereunder
(collectively, "Borrower Materials") by posting the Borrower
Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders (each, a "Public
Lender") may have personnel who do not wish to receive material
non-public information with respect to any of the Borrowers or
their respective Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons'
securities. Each Borrower hereby agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall
be clearly and conspicuously marked "PUBLIC" which, at a minimum,
shall mean that the word "PUBLIC" shall appear prominently on the
first page thereof; (x) by marking Borrower Materials "PUBLIC",
the Borrowers shall be deemed to have authorized the
Administrative Agent, the Arrangers, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to any Borrower or
its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated
as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of
the Platform designated "Public Side Information"; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat
any Borrower Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not
designated "Public Side Information".
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6.03 Notices. Notify the Administrative Agent and each
Lender:
(a) immediately, and in any event within three (3) days
upon becoming aware of the occurrence of any Default;
(b) promptly, of any matter that could reasonably be
expected to result in a Material Adverse Effect (including (i)
breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Subsidiary; (ii) any dispute,
litigation, or proceeding between the Company or any Subsidiary
and any Governmental Authority or the suspension of any permit or
license issued by any Governmental Authority and needed by the
Company or any Subsidiary to operate; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to
any applicable Environmental Laws);
(c) immediately, and in any event within three (3) days,
upon becoming aware of the occurrence of any ERISA Event; and
(d) promptly, of any material change in accounting policies
or financial reporting practices by the Company or any Subsidiary,
including any determination by the Company referred to in Section
2.10(b).
Each notice pursuant to this Section 6.03 shall be
accompanied by a statement of a Responsible Officer of the
Company setting forth details of the occurrence referred to
therein and stating what action the Company has taken and
proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that
have been breached.
6.04 Payment of Obligations. Pay and discharge as the same
shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the
Company or such Subsidiary; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property, unless
the same are disputed or are being contested, in each case, in
good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained
by the Company or such Subsidiary; and (c) all Indebtedness, as
and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing
or relating to such Indebtedness, except, in the case of clauses
(a), (b) and (c), to the extent that any such obligations or
liabilities, individually or in the aggregate, are not reasonably
likely to result in a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew
and maintain in full force and effect its legal existence and
good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or
7.05, and except (but only with respect to Non-Material
Subsidiaries) where the failure to do so could not reasonably be
expected to have a Material Adverse Effect; (b) take all
reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal
conduct of its
77
business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which
could reasonably be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties. (a) Maintain, preserve and
protect all of its material properties and equipment necessary in
the operation of its business in good working order and
condition, ordinary wear, tear and obsolescence excepted; (b)
make all necessary repairs thereto and renewals and replacements
thereof (provided that the Company and its Subsidiaries may
discontinue the operation and maintenance of any of its
properties if such discontinuance is desirable in the conduct of
its business) except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c)
use the standard of care typical in the industry in the operation
and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain with financially
sound and reputable insurance companies that are not Affiliates
of the Company, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of
such types and in such amounts (including self-insurance, if
adequate reserves are maintained with respect thereto) as are
customarily carried under similar circumstances by such other
Persons.
6.08 Compliance with Laws. Comply in all material respects
with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or
(b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
6.09 Books and Records. (a) Maintain proper books of record
and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and
business of the Company or such Subsidiary, as the case may be;
and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Company or such
Subsidiary, as the case may be.
6.10 Inspection Rights. Permit representatives and
independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and
independent public accountants, at such reasonable times during
normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however,
that (a) so long as no Event of Default exists, such inspection
shall be limited to once per fiscal year of the Company and shall
be at the expense of the Lender(s) requesting such inspection and
(b) when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the
expense of the Borrowers at any time during normal business hours
and without advance notice.
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6.11 Use of Proceeds. Use the proceeds of the Credit
Extensions (a) to refinance Indebtedness outstanding under the
Existing Five-Year Credit Agreement and (b) for general corporate
purposes not in contravention of any Law or of any Loan Document.
6.12 Approvals and Authorizations. Maintain all
authorizations, consents, approvals and licenses from, exemptions
of, and filings and registrations with, each Governmental
Authority of the jurisdiction in which each Foreign Obligor is
organized and existing, and all approvals and consents of each
other Person in such jurisdiction, in each case that are required
in connection with the Loan Documents.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
the Company shall not, nor shall it permit any Subsidiary to,
directly or indirectly:
7.01 Negative Pledge. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens in the Excluded Assets (and the cash payments
being held in escrow) to secure obligations under or with respect
to the Excluded Transaction;
(c) Liens for taxes not yet due or which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance
with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable
Person;
(e) pledges or deposits in the ordinary course of business
in connection with workers' compensation, unemployment insurance
and other social security legislation, other than any Lien
imposed by ERISA;
(g) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are
not substantial in amount, and which do not in any case
79
materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business
of the applicable Person;
(i) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) or
securing appeal or other surety bonds related to such judgments;
(j) Purchase Money Liens;
(k) Liens securing Indebtedness (including renewals,
extensions and refinancings thereof) on property in existence at
the time such property is acquired by the Company or a Subsidiary
in connection with an Acquisition not prohibited herein; provided,
that such Liens do not at any time encumber any property other
than the property so acquired;
(l) Liens under UCC 4-210 and Liens in deposit accounts or
in other assets in the possession of a financial institution
created under the standard deposit agreement of any financial
institution at which the Company or any Subsidiary maintains a
deposit account;
(m) Liens on property owned by a Subsidiary, provided that
such Liens secure only obligations owing to the Company or a
wholly-owned Subsidiary;
(n) Liens on goods purchased with import letters of credit
permitted by Section 7.03(h) that secure Indebtedness under such
import letters of credit;
(o) Liens not otherwise permitted by this Section 7.01;
provided, that the aggregate amount of Indebtedness secured by
Liens permitted by this clause (n) shall not at any time, when
added to all other Priority Indebtedness, exceed 10% of
Consolidated Tangible Net Worth determined at such time.
In the case any property shall be subjected to a Lien in
violation of this Section 7.01, the Company shall forthwith make
or cause to be made to the fullest extent permitted by applicable
law, provision whereby the Obligations will be secured equally
and ratably with all other obligations secured by such Lien
pursuant to such agreements and instruments as shall be
reasonably approved by the Administrative Agent, and the Company
shall cause to be delivered to the Administrative Agent and each
Lender an opinion of independent counsel reasonably satisfactory
to the Administrative Agent to the effect that such agreements
and instruments are enforceable in accordance with their terms,
and in any such case the Obligations shall have the benefit, to
the fullest extent that, and with such priority as, the holders
of the Obligations may be entitled under applicable law, of an
equitable Lien on such property (and the proceeds thereof)
securing the Obligations. Such violation of this Section 7.01
will constitute an Event of Default hereunder, whether or not any
such provision is made pursuant to this Section 7.01.
7.02 Investments. Make or hold any Investments, except:
(a) Investments held by the Company or such Subsidiary in
the form of cash equivalents or readily marketable debt or equity
securities;
80
(b) (i) Loans to officers, directors and employees of the
Company or any Subsidiary that would not be prohibited by the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated thereunder, provided that the aggregate amount of all
such loans outstanding at any time shall not exceed $5,000,000
and (ii) advances to any member of the Bresky Group or to any
officer, director or employee of the Company or any
Subsidiary, provided such advances are for travel, entertainment,
relocation and analogous ordinary course business purposes
provided that the aggregate amount of all such advances at any
time outstanding shall not exceed $500,000;
(c) Investments of the Company in any Subsidiary and
Investments of any Subsidiary in the Company or in another
Subsidiary;
(d) Investments of the Company and Subsidiaries existing on
the Closing Date, as set forth on Schedule 5.13;
(e) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
(f) Guarantees permitted by Section 7.03;
(g) Investments incurred in order to consummate
Acquisitions permitted hereby;
(h) Investments in "seller take-back" notes arising in
connection with a Disposition of assets permitted hereby;
provided that the principal amount of any such "seller take-back"
note does not exceed the fair market value of the assets so
Disposed; and
(i) other Investments not permitted by this Section 7.02;
provided, that, (i) the aggregate value of all such Investments
made in any fiscal year shall not exceed $50,000,000 unless both
immediately before and immediately after making such Investment
the Consolidated Adjusted Leverage Ratio is less than 3.00 to
1.00, and (ii) to the extent that any such Investment would cause
the aggregate value of all such Investments made (which are still
outstanding or owed) in any fiscal year to exceed $50,000,000,
the Company shall have furnished to the Administrative Agent a
certificate of a Responsible Officer, which certificate shall
calculate the Consolidated Adjusted Leverage Ratio both
immediately before and immediately after making such Investment.
7.03 Subsidiary Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any
Indebtedness other than:
(a) Indebtedness under the Loan Documents;
(b) Intentionally omitted;
(c) Indebtedness (including renewals, extensions and
refinancings thereof so long as the principal amount thereof is
not increased) in respect of capital leases, Synthetic Lease
81
Obligations and purchase money obligations for fixed or capital
assets within the limitations set forth in clause (a) of the
definition of "Purchase Money Liens";
(d) Swap Contracts entered into (i) to hedge interest rate
and/or currency risk with respect to Indebtedness incurred in the
ordinary course of business and pursuant to prudent and
reasonable business practices that are consistent with the
business practices of other companies similarly situated, (ii) to
hedge currency risk with respect to any such payments expected to
be received or made pursuant to a contract entered into in the
ordinary course of business and pursuant to prudent and
reasonable business practices that are consistent with the
business practices of other companies similarly situated (iii) to
hedge commodity risk with respect to any commodity held, required
to be delivered or anticipated to be received in the ordinary
course of business and pursuant to prudent and reasonable
business practices that are consistent with the business
practices of other companies similarly situated or (iv) to hedge
shipping, freight or other transportation risk with respect to
any obligation to deliver any goods or commodities required to be
delivered in the ordinary course of business and pursuant to
prudent and reasonable business practices that are consistent
with the business practices of other companies similarly
situated;
(e) Intentionally omitted;
(f) Indebtedness of a Subsidiary owing to the Company or a
Subsidiary; provided such indebtedness has a tenor of less than
365 days;
(g) Industrial Development Revenue Bonds at Seaboard Foods,
Inc. existing on the Closing Date, in an aggregate principal
amount not to exceed $35,000,000 at any time;
(h) import letters of credit (other than Letters of Credit
issued hereunder), in an aggregate undrawn face amount not to
exceed $40,000,000 at any time; and
(i) Indebtedness of Ingenio v Refineria San Martin del
Tabacal, in an aggregate principal amount not to exceed
$80,000,000 at any time; and
(j) Indebtedness (including renewals, extensions and
refinancings thereof so long as the principal amount thereof is
not increased) not otherwise permitted under this Section 7.03;
provided, that the aggregate amount of Indebtedness permitted by
this clause (j) shall not at any time, when added together with
all Indebtedness outstanding pursuant to clause (c) above and all
other Priority Indebtedness, exceed 10% of Consolidated Tangible
Net Worth determined at such time.
7.04 Fundamental Changes. Merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any Person, except that, so long as
no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Company, provided
that the Company shall be the continuing or surviving Person, or
(ii) any one or more other Subsidiaries, provided that when any
wholly-owned Subsidiary is merging with another Subsidiary, the
wholly-owned Subsidiary shall be the continuing or surviving
Person;
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(b) any Subsidiary may Dispose of all or substantially all
of its assets (upon voluntary liquidation or otherwise) to the
Company or to another Subsidiary; provided that if the transferor
in such a transaction is a wholly-owned Subsidiary, then the
transferee must either be the Company or a wholly-owned
Subsidiary; and
(c) a merger by the Company or a Subsidiary with a Person
to consummate an Acquisition permitted by Section 7.11.
(d) except for the Company and any Designated Borrower, any
Non-Material Subsidiary may be dissolved, liquidated or otherwise
have its existence terminated.
7.05 Dispositions. Make any Disposition or enter into any
agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether
now owned or hereafter acquired, in the ordinary course of
business;
(b) Dispositions of inventory in the ordinary course of
business;
(c) Dispositions of equipment or real property to the
extent that (i) such property is exchanged for credit against the
purchase price of similar replacement property or (ii) the Net
Cash Proceeds of such Disposition are reasonably promptly applied
to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to the
Company or to any wholly-owned Subsidiary;
(e) Dispositions permitted by Section 7.04;
(f) Disposition of the Excluded Assets pursuant to the
Excluded Transaction;
(g) Dispositions by the Company or a Subsidiary that
satisfy each of the following conditions and which shall not be
deemed to be a Disposition under this clause (g) until all of the
following conditions have been satisfied:
(i) the Company shall have delivered a written notice
to the Administrative Agent contemporaneously with the
consummation of the Disposition in which the Company:
(A) identifies the property that is the subject
of the Disposition,
(B) states the nature and terms of the
transaction and the nature and use of the proceeds of
the transaction, and
(C) states that, within three hundred and sixty-
five (365) days following the consummation of such
Disposition, the entire proceeds of such Disposition
(or portion thereof which has not been allocated by the
Company to clause (h) below), net of reasonable and
ordinary transaction costs and expenses
83
incurred in connection with such Disposition and any
Indebtedness required by its terms to be repaid in
connection with such Disposition, shall be applied to
the acquisition by the Company or any Subsidiary of
operating assets or Equity Interests of a Person which
will become a Subsidiary and which owns operating
assets and which operating assets will be used in the
ordinary course of business of the Company and its
Subsidiaries, and
(ii) the proceeds of such Disposition shall have been
applied as described in such written notice;
(h) Dispositions by the Company and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i) at
the time of such Disposition, no Default shall exist or would
result from such Disposition and (ii) the aggregate book value of
all property Disposed of in reliance on this clause (h) shall not
exceed 25% of Consolidated Tangible Net Worth as of the Closing
Date;
provided, however, that any Disposition pursuant to clauses (a)
through (h) shall be for fair market value.
7.06 Restricted Payments. Declare or make, directly or
indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that, so long as no
Default shall have occurred and be continuing at the time of any
action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to any
Persons that own an Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity
Interest in respect of which such Restricted Payment is being
made;
(b) the Company and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the
common stock or other common Equity Interests of such Person;
(c) the Company and each Subsidiary may purchase, redeem or
otherwise acquire Equity Interests issued by it with the proceeds
received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests; and
(d) the Company may declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire for cash
Equity Interests issued by it; provided, that, (i) the aggregate
amount of all such dividends, purchases, redemptions and
acquisitions shall not exceed $15,000,000 in any given fiscal
year of the Company unless both immediately before and
immediately after making such payment the Consolidated Adjusted
Leverage Ratio is less than 2.50 to 1.00, and (ii) to the extent
any such dividend, purchase, redemption or acquisition would
cause the aggregate amount of all such Restricted Payments in any
fiscal year to exceed $15,000,000, the Company shall have
furnished to the Administrative Agent a certificate of a
Responsible Officer, which certificate shall calculate the
Consolidated Adjusted Leverage Ratio both immediately before and
immediately after making such dividend, purchase, redemption or
and acquisition, as the case may be.
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7.07 Change in Nature of Business. Engage in any material
line of business substantially different from those lines
of business conducted by the Company and its Subsidiaries on the
date hereof or any business substantially related or incidental
thereto. In furtherance of the foregoing, the Company shall at
all times cause (i) the amount of revenues of the Company and its
Subsidiaries derived from Permitted Lines of Business to be at
least sixty-six and two-thirds percent (66-2/3%) of the amount of
all revenues of the Company and its Subsidiaries, determined in
each case for the then most recently ended period of twelve (12)
fiscal months on a consolidated basis, or (ii) the net book value
of assets of the Company and its Subsidiaries used in Permitted
Lines of Business to be at least sixty-six and two-thirds percent
(66-2/3%) of the amount of the net book value of all assets of
the Company and its Subsidiaries, in each case determined as of
the end of then most recently ended calendar month on a
consolidated basis.
7.08 Transactions with Affiliates. Enter into any
transaction of any kind with any Affiliate of the Company,
whether or not in the ordinary course of business, other than on
fair and reasonable terms substantially as favorable to the
Company or such Subsidiary as would be obtainable by the Company
or such Subsidiary at the time in a comparable arm's length
transaction with a Person other than an Affiliate.
7.09 Burdensome Agreements. Be a party to or enter into any
Contractual Obligation (including for this purpose, its
organizational documents) other than this Agreement, any other
Loan Document, the Senior Note Agreements (and refinancings or
renewals thereof, on the same or substantially similar terms))
that (a) limits the ability (i) of any Subsidiary to make
Restricted Payments to the Company or to otherwise transfer
property to the Company, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Company or (iii) of the Company or any
Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause
(iii) shall not prohibit any negative pledge incurred or provided
in favor of any holder of Indebtedness in respect of a capital
lease, Synthetic Lease Obligation or purchase money obligation
for fixed or capital assets solely to the extent any such
negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien
to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.
7.10 Use of Proceeds. Use the proceeds of any Credit
Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry
margin stock (within the meaning of Regulation U of the FRB) or
to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally
incurred for such purpose.
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7.11 Acquisitions. Enter into any agreement, contract,
binding commitment or other arrangement providing for any
Acquisition, or take any action to solicit the tender of
securities or proxies in respect thereof in order to effect any
Acquisition, unless (a) no Default or Event of Default shall have
occurred and be continuing either immediately prior to or
immediately after giving effect to such Acquisition and, if the
Cost of Acquisition is in excess of $50,000,000, the Company
shall have furnished to the Administrative Agent (i)
pro forma historical financial statements as of the end of
the most recently completed fiscal year of the Company and most
recent interim fiscal quarter, if applicable giving effect to
such Acquisition and (ii) a Compliance Certificate prepared
on a historical pro forma basis as of the most recent date for
which financial statements have been furnished pursuant to
Section 6.01(a) or (b) (or if no such financial statements have
been furnished, from the date of the financial statements
referred to in Section 5.05(b)) giving effect to such
Acquisition, which certificate shall demonstrate that no Default
or Event of Default would exist immediately after giving effect
thereto, (b) the Person acquired shall be a Subsidiary, or
be merged into the Company or a Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired,
the acquiror shall be the Company or a Subsidiary), and (c)
after giving effect to such Acquisition, the aggregate Costs of
Acquisition incurred in any fiscal year of the Company shall not
exceed $50,000,000 (on a noncumulative basis, with the effect
that amounts not incurred in any fiscal year may not be carried
forward to a subsequent period) unless, both immediately before
and immediately after making such Acquisition, the Consolidated
Adjusted Leverage Ratio is less than 3.00 to 1.00.
7.12 Financial Covenants.
(a) Consolidated Tangible Net Worth. Permit Consolidated
Tangible Net Worth at any time to be less than the sum of (i)
$1,150,000,000 and (ii) an amount equal to 25% of the
Consolidated Net Income earned in each full fiscal quarter ending
after March 29, 2008 (with no deduction for a net loss in any
such fiscal quarter).
(b) Debt to Capitalization. Permit Consolidated Funded
Indebtedness at any time to be greater than 50% of Consolidated
Total Capitalization.
(c) Consolidated Adjusted Leverage Ratio. Permit the
Consolidated Adjusted Leverage Ratio at any time to be greater
than 3.50 to 1.00.
7.13 Amendments to Senior Note Agreements. Enter into or
suffer to exist any amendment or modification (a) to the
amortization schedule or prepayment provisions (excluding the
waiver of any prepayment premium or penalty) of the Indebtedness
created under the Senior Note Agreements or (b) to any other
terms or conditions contained in the Senior Note Agreements
if such modification (i) would conflict with or be more
restrictive than the terms or provisions of this Agreement, (ii)
would provide for collateral security for such Indebtedness in
excess of that provided under such agreements as of the Closing
Date (as defined in the Existing Five-Year Credit Agreement) of
the Existing Five-Year Credit Agreement, (iii) would expand any
negative pledge provision provided for therein or (iv) would
alter any provision of the events of default under those
agreements.
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ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall
constitute an Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party
fails to pay (i) when and as required to be paid herein, and
in the currency required hereunder, any amount of principal of
any Loan or any L/C Obligation, or (ii) within five days after
the same becomes due, any interest on any Loan or on any L/C
Obligation, or any fee due hereunder, or (iii) within five days
after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or
observe any term, covenant or agreement contained in any of
Sections 6.03, 6.10, or 6.11 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or
observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in any Loan Document on
its part to be performed or observed and such failure continues
for ten days, in the case of any failure under Sections 6.01 or
6.02, or 30 days, in the case of any failure under other such
covenant or agreement, after such Loan Party has knowledge
thereof; or
(d) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made
by or on behalf of the Company herein, in any other Loan
Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material
respect when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary (A)
fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or
otherwise, but giving effect to any applicable grace or cure
period) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed
or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than
$10,000,000, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or
Guarantee (including but not limited to the Senior Notes) or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries
of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or
to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its
stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which the Company or any Subsidiary is an
Affected Party (as so defined) and, in either event,
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the Swap Termination Value owed by the Company or such Subsidiary
as a result thereof is greater than $10,000,000; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of
its Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment
for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for
60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and
continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Company or
any Subsidiary becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due, or (ii)
any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against the Company or any
Subsidiary (i) a final, non-appealable judgment or order for the
payment of money in an aggregate amount exceeding $50,000,000 (to
the extent coverage by any applicable independent third-party
insurer has been denied), or (ii) any one or more non-monetary
final, non-appealable judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings
are commenced by any creditor upon such judgment or order; or (B)
there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company
under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of $10,000,000, or
(ii) the Company or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the $10,000,000; or
(j) Invalidity of Loan Documents. Any provision of any
Loan Document, at any time after its execution and delivery and
for any reason other than as expressly permitted hereunder or
satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Borrower or any other Person contests in
any manner the validity or enforceability of any provision of any
Loan Document; or any Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any provision of any Loan Document;
or
(k) Change of Control. There occurs any Change of Control.
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8.02 Remedies Upon Event of Default. If any Event of
Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and
any obligation of the L/C Issuer to make L/C Credit Extensions to
be terminated, whereupon such commitments and obligation shall
be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers;
(c) require that the Company Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount
thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C
Issuer all rights and remedies available to it, the Lenders and
the L/C Issuer under the Loan Documents;
provided, however, that upon the occurrence of an actual or
deemed entry of an order for relief with respect to any Borrower
under the Bankruptcy Code of the United States, the obligation of
each Lender to make Loans and any obligation of the L/C Issuer to
make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Company to Cash Collateralize
the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative
Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies
provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer (including fees and time
charges for attorneys who may be employees of any Lender or the
L/C Issuer) and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans, L/C
Borrowings and other Obligations, ratably among the Lenders and
the
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L/C Issuer in proportion to the respective amounts described
in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings,
ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the
L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit;
and
Last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Company or as otherwise
required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to
clause Fifth above shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall
be applied to the other Obligations, if any, in the order set
forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority. Each of the Lenders and the
L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as
are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the
L/C Issuer, and no Borrower shall have rights as a third party
beneficiary of any of such provisions.
9.02 Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent
and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder
in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor
or in any other advisory capacity for and generally engage in any
kind of business with the Borrowers or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the
Lenders.
9.03 Exculpatory Provisions. The Administrative Agent shall
not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting
the generality of the foregoing, the Administrative Agent:
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(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing;
(b) shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other
Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided
that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary
to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in
the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information
relating to any of the Borrowers or any of their respective
Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in
any capacity.
The Administrative Agent shall not be liable for any action
taken or not taken by it (i) with the consent or at the request
of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, a Lender or the
L/C Issuer.
The Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v)
the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by
the proper Person. The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by
it to have been made by the proper Person, and shall not incur
any liability for relying thereon. In determining compliance with
any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Lender or the L/C Issuer,
the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary
from such Lender
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or the L/C Issuer prior to the making of such Loan or the
issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Company),
independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or
experts.
9.05 Delegation of Duties. The Administrative Agent may
perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through
any one or more sub agents appointed by the Administrative Agent.
The Administrative Agent and any such sub agent may perform any
and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub agent and
to the Related Parties of the Administrative Agent and any such
sub agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06 Resignation of Administrative Agent. The Administrative
Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Company. Upon receipt of any
such notice of resignation, the Required Lenders shall have the
right, in consultation with the Company, to appoint a successor,
which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.
If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf
of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the
Company and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2)
all payments, communications and determinations provided to be
made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such
time as the Required Lenders appoint a successor Administrative
Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The
fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After
the retiring Administrative Agent's resignation hereunder and
under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
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Any resignation by Bank of America as Administrative Agent
pursuant to this Section shall also constitute its resignation as
L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer
and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line
Lender shall be discharged from all of their respective duties
and obligations hereunder or under the other Loan Documents, and
(c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at
the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such
Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and the L/C Issuer acknowledges that it has,
independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that
it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.
In the event of any dismissal or resignation by any other
L/C Issuer, any Letters of Credit issued by such retiring L/C
Issuer shall remain outstanding until termination pursuant to
their terms and such retiring L/C Issuer shall retain all the
rights and obligations of an L/C Issuer hereunder with respect to
all such Letters of Credit and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)), but excluding the right to
consent to Eligible Assignees and the obligation to issue new
Letters of Credit.
9.08 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Joint Book Managers, Arrangers or
other titles as necessary listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement
or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or an L/C
Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case
of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of
any Loan or L/C Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective
of whether the Administrative Agent shall have made any demand on
any Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or
advisable in order to have the
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claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders, the L/C
Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender and the L/C Issuer
to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making
of such payments directly to the Lenders and the L/C Issuer, to
pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09 and
10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting
the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the
claim of any Lender or the L/C Issuer in any such proceeding.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent to any departure by the Company or any other Loan Party
therefrom, shall be effective unless in writing signed by the
Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent
shall:
(a) waive any condition set forth in Section 4.01(a)
without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document without the written consent of each
Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to
clause (iv) of the second proviso to this Section 10.01) any fees
or
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other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of
"Default Rate" or to waive any obligation of any Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used
therein) even if the effect of such amendment would be to reduce
the rate of interest on any Loan or L/C Borrowing or to reduce
any fee payable hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that
would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(f) amend Section 1.07 or the definition of "Alternative
Currency" without the written consent of each Lender; or
(g) change any provision of this Section or the definition
of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination
or grant any consent hereunder without the written consent of
each Lender.
and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the L/C Issuer in addition
to the Lenders required above, affect the rights or duties of the
L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed
by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under
this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or
duties of the Administrative Agent under this Agreement or any
other Loan Document; and (iv) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed
only by the parties thereto. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.
10.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices
and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made
to the applicable telephone number, as follows:
(i) if to a Borrower, the Administrative Agent, the
L/C Issuer or the Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.02; and
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(ii) if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight
courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at
the opening of business on the next business day for the
recipient). Notices and other communications delivered through
electronic communications to the extent provided in subsection
(b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other
communications to the Lenders and the L/C Issuer hereunder may be
delivered or furnished by electronic communication (including
e mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer
pursuant to Article II if such Lender or the L/C Issuer, as
applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Company may, in
its discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall
be deemed received upon the sender's receipt of an
acknowledgement from the intended recipient (such as by the
"return receipt requested" function, as available, return e-mail
or other written acknowledgement), provided that if such notice
or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next
business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and
identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT
THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively,
the "Agent Parties") have any liability to any Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims,
damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower's or the
Administrative Agent's transmission of Borrower Materials through
the Internet, except to
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the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to
have resulted from such Agent Party's gross negligence, willful
misconduct or breach in bad faith of its obligations under the
Loan Documents; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).
(d) Change of Address, Etc. Each of the Borrowers, the
Administrative Agent, the L/C Issuer and the Swing Line Lender
may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other
communications hereunder by notice to the Company, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.
In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone
number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate
wire instructions for such Lender. Furthermore, each Public
Lender agrees to cause at least one individual at or on behalf of
such Public Lender to at all times have selected the "Private
Side Information" or similar designation on the content
declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender's
compliance procedures and applicable Law, including United States
Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the "Public Side
Information" portion of the Platform and that may contain
material non-public information with respect to any Borrower or
its securities for purposes of United States Federal or state
securities laws.
(e) Reliance by Administrative Agent, L/C Issuer and
Lenders. The Administrative Agent, the L/C Issuer and the Lenders
shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices)
believed in good faith to have been given by or on behalf of any
Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from
any confirmation thereof. The Company shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each
notice believed in good faith to have been given by or on behalf
of any Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 No Waiver; Cumulative Remedies; Enforcement. No
failure by any Lender or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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Notwithstanding anything to the contrary contained herein or
in any other Loan Document, the authority to enforce rights and
remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and
all actions and proceedings at law in connection with such
enforcement shall be instituted and maintained exclusively by,
the Administrative Agent in accordance with Section 8.02 for the
benefit of all the Lenders and the L/C Issuer; provided, however,
that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies
that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from
exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer or Swing Line Lender, as
the case may be) hereunder and under the other Loan Documents,
(c) any Lender from exercising setoff rights in accordance with
Section 10.08 (subject to the terms of Section 2.13), or (d) any
Lender form filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding
relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting
as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to
Section 8.02 and (ii) in addition to the matters set forth in
clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required
Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all
reasonable out of pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent in an
amount not to exceed $50,000), in connection with the syndication
of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents (which in the case of
administration shall be expenses which are consistent with
practices and activities that are generally accepted and
customary for administrative agents in the syndicated loan
market) or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all
reasonable out of pocket expenses incurred by the L/C Issuer in
connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and
(iii) all out of pocket expenses incurred by the Administrative
Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent,
any Lender or the L/C Issuer), and shall pay all fees and time
charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with
this Agreement and the other Loan Documents, including its rights
under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out of
pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Company. The Company shall
indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an
"Indemnitee")
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against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for
any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any
Indemnitee or asserted against any Indemnitee by any third party
or by any Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery
of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents
(including in respect of any matters addressed in Section 3.01),
(ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer
to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by any Borrower or any
of its Subsidiaries, or any Environmental Liability related in
any way to any Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third
party or by the Company or any other Loan Party, and regardless
of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Company or any other Loan
Party against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan
Document, if the Company or such other Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the
Company for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), the
L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the
case may be, such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or any such sub-
agent) or the L/C Issuer in its capacity as such, or against any
Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of
Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable law, no Borrower shall assert, and
hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of,
in connection with, or as a result of, this Agreement, any
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other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable
for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct
or actual damages resulting from the gross negligence, willful
misconduct or breach in bad faith by such Indemnitee of the Loan
Documents as determined by a final and nonappealable judgment of
a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive
the resignation of the Administrative Agent, the L/C Issuer and
the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by
or on behalf of any Borrower is made to the Administrative Agent,
the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, the L/C
Issuer or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, in the
applicable currency of such recovery or payment. The obligations
of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns
permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of
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subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C
Issuer and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time
assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment \
and the Loans at the time owing to it or in the case of
an assignment to a Lender, an Affiliate of a Lender or
an Approved Fund, no minimum amount need be assigned;
and
(B) in any case not described in subsection (b)
(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment
and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the
Company otherwise consents (each such consent not to be
unreasonably withheld, conditioned or delayed);
provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount
has been met.
(ii) Proportionate Amounts. Each partial assignment
shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this
Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to
the Swing Line Lender's rights and obligations in respect of
Swing Line Loans;
(iii) Required Consents. No consent shall be required
for any assignment except to the extent required by
subsection (b)(i)(B) of this Section and, in addition:
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(A) the consent of the Company (such consent not
to be unreasonably withheld, conditioned or delayed)
shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such
assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such
consent not to be unreasonably withheld, conditioned or
delayed) shall be required if such assignment is to a
Person that is not a Lender, an Affiliate of such
Lender or an Approved Fund with respect to such Lender;
(C) the consent of the L/C Issuer (such consent
not to be unreasonably withheld, conditioned or
delayed) shall be required for any assignment that
increases the obligation of the assignee to participate
in exposure under one or more Letters of Credit
(whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such
consent not to be unreasonably withheld, conditioned or
delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each
assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500;
provided, however, that the Administrative Agent may, in its
sole discretion, elect to waive such proceeding and
recordation fee in the case of any assignment. The assignee,
if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire
(v) No Assignment to Company. No such assignment
shall be made to the Company or any of the Company's
Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such
assignment shall be made to a natural person.
(vii)No Assignment Resulting in Additional Indemnified
Taxes. No such assignment shall be made to any Person
that, through its Lending Offices, is not capable of
lending the applicable Alternative Currencies to the
relevant Borrowers without the imposition of any additional
Indemnified Taxes.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of
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such assignment. Upon request, each Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender.
Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at the
Administrative Agent's Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive,
and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by each of the
Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Administrative
Agent, sell participations to any Person (other than a natural
person or the Company or any of the Company's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans
(including such Lender's participations in L/C Obligations and/or
Swing Line Loans) owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement.
Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification
described in clauses (c) or (d) of the first proviso to Section
10.01 that affects such Participant. Subject to subsection (e)
of this Section, each Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant
shall not be entitled to receive any greater payment under
Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. In
addition and without limitation of the foregoing sentence, a
Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 3.01 unless the
Company is
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notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 3.01(e) and Section 3.06 as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights
under this Agreement (including under its Note(s), if any) to
secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
(g) Resignation as L/C Issuer or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained
herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of
America may, (i) upon 30 days' notice to the Company and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to
the Company, resign as Swing Line Lender and the Company may (i)
upon 30 calendar days' written notice to Bank of America, remove
Bank of America as L/C Issuer and/or (ii) upon 30 calendar days'
notice to Bank of America, remove Bank of America as Swing Line
Lender. In the event of any such resignation or removal as L/C
Issuer or Swing Line Lender, the Company shall be entitled to
appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the
Company to appoint any such successor shall affect the
resignation or removal of Bank of America as L/C Issuer or Swing
Line Lender, as the case may be. If Bank of America resigns or
is removed as L/C Issuer, it shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its
resignation or removal as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to
make Base Rate Committed Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America resigns or is removed as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation or
removal, including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring or
removed L/C Issuer or Swing Line Lender, as the case may be, and
(b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at
the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of
Credit.
10.07 Treatment of Certain Information; Confidentiality.
Each of the Administrative Agent, the Lenders and the L/C Issuer
agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent
required by applicable laws or
104
regulations or by any subpoena or similar legal process, (d) to
any other party hereto, (e) in connection with the exercise of
any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.15
(c) or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to
a Borrower and its obligations, (g) with the consent of the
Company or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any
Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Company.
For purposes of this Section, "Information" means all
information received from the Company or any Subsidiary relating
to the Company or any Subsidiary or any of their respective
businesses, other than any such information that is available to
the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Company or any
Subsidiary, provided that, in the case of information received
from the Company or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord
to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C
Issuer acknowledges that (a) the Information may include material
non-public information concerning any Borrower or a Subsidiary,
as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance
with applicable Law, including United States Federal and state
securities Laws.
10.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender, the L/C Issuer and each
of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account
of any Borrower against any and all of the obligations of such
Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer
shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower may be
contingent or unmatured or are owed to a branch or office of such
Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Company and the
Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
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10.09 Interest Rate Limitation. Notwithstanding anything
to the contrary contained in any Loan Document, the interest paid
or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable
Law (the "Maximum Rate"). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Company. In determining whether the interest
contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the
extent permitted by applicable Law, (a) characterize any payment
that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal
or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness. This
Agreement and the other Loan Documents may be executed in
counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents constitute
the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement and
the other Loan Documents shall become effective when it shall
have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement and any other Loan Document by
telecopy or other electronic imaging means shall be effective as
delivery of a manually executed counterpart of this Agreement and
the other Loan Documents.
10.11 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. Such representations
and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default at
the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.
10.12 Severability. If any provision of this Agreement
or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of
the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
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10.13 Replacement of Lenders. If any Lender requests
compensation under Section 3.04, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01,
if any Lender is a Defaulting Lender or if any other circumstance
exists hereunder that gives the Company the right to replace a
Lender as a party hereto, then the Company may, at its sole
expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that
shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the Company shall have paid (or caused a Designated
Borrower to pay) to the Administrative Agent the assignment fee
specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and L/C Advances,
accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from the assignee (to
the extent of such outstanding principal and accrued interest and
fees) or the Company or applicable Designated Borrower (in the
case of all other amounts);
(c) in the case of any such assignment resulting from a
claim for compensation under Section 3.04 or payments required to
be made pursuant to Section 3.01, such assignment will result in a
reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment
or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to
require such assignment and delegation cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
(b) SUBMISSION TO JURISDICTION. EACH IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY
107
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY
COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
10.16 No Advisory or Fiduciary Responsibility. In
connection with all aspects of each transaction contemplated
hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), each
Borrower acknowledges and agrees that: (i) (A) the arranging and
other services regarding this Agreement provided by the
Administrative Agent and the Arrangers are arm's-length
commercial transactions between such Borrower and its respective
Affiliates, on the one hand, and the Administrative Agent and the
108
Arrangers, on the other hand, (B) such Borrower has consulted its
own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) such Borrower is capable of
evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the
other Loan Documents; (ii) (A), the Administrative Agent and the
each Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for such Borrower or any of its
Affiliates or any other Person and (B) neither the Administrative
Agent nor the Arrangers has any obligation to such Borrower or
any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the
Administrative Agent and the Arrangers and their respective
Affiliates may be engaged in a board range of transactions that
involve interests that differ from those of such Borrower and its
Affiliates, and neither the Administrative Agent nor the
Arrangers has any obligation to disclose any of such interests to
such Borrower or its Affiliates. To the fullest extent permitted
by law, each of the Borrowers hereby waives and releases any
claims that it may have against the Administrative Agent and the
Arrangers with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.
10.17 Electronic Execution of Assignments and Certain
Other Documents. The words "execution," "signed," "signature,"
and words of like import in any Assignment and Assumption shall
be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as
the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based
on the Uniform Electronic Transactions Act.
10.18 USA PATRIOT Act Notice. Each Lender that is
subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrowers that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26,2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrowers,
which information includes the name and address of each Borrower
and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Borrower in
accordance with the Act. Each Borrower shall, promptly following
a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing
obligations under applicable "know your customer" and anti-money
laundering rules and regulations, including the Act.
10.19 Judgment Currency. If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final
judgment is given. The obligation of each Borrower in respect of
any such sum due from it to the Administrative Agent or any
Lender hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than that in which such sum is denominated in
109
accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent or
such Lender, as the case may be, of any sum adjudged to be so due
in the Judgment Currency, the Administrative Agent or such
Lender, as the case may be, may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent
or any Lender from any Borrower in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or such
Lender, as the case may be, against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent or any Lender in such
currency, the Administrative Agent or such Lender, as the case
may be, agrees to return the amount of any excess to such
Borrower (or to any other Person who may be entitled thereto
under applicable law).
[SIGNATURE PAGES FOLLOW]
110
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
SEABOARD CORPORATION
By: /s/ Robert L. Steer
Name: Robert L. Steer
Title: Senior Vice President and Chief
Financial Officer
MERRIAM FINANCIAL SERVICES, LTD.
By: /s/ Robert L. Steer
Name: Robert L. Steer
Title: Vice President and Treasurer
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Joan Mok
Name: Joan Mok
Title: Vice President
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer and Swing Line Lender
By: /s/ David L. Catherall
Name: David L. Catherall
Title: Senior Vice President
COBANK, ACB
By: /s/ Alan Schuler
Name: Alan Schuler
Title: Vice President
AGFIRST FARM CREDIT BANK
By: /s/ Bruce B. Fortner
Name: Bruce B. Fortner
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Paula Czach
Name: Paula Czach
Title: Director & Head of Execution
U.S. AGBANK, FCB, as disclosed
agent
By: /s/ Travis W. Ball
Name: Travis W. Ball
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND"
By: /s/ Rebecca O. Morrow
Name: Rebecca O. Morrow
Title: Executive Director
By: /s/ James V. Kenwood
Name: James V. Kenwood
Title: Executive Director
SUNTRUST BANK
By: /s/ Dan Komitor
Name: Dan Komitor
Title: Director
THE BANK OF NEW YORK MELLON
By: /s/ Jane Angelini
Name: Jane Angelini
Title: First Vice President
SCHEDULES AND EXHIBITS TO AMENDED AND
RESTATED CREDIT AGREEMENT
Following is a list of Schedules and Exhibits to the Amended
and Restated Credit Agreement, which are omitted from the
Amended and Restated Credit Agreement which is filed with
the Securities and Exchange Commission ("SEC"). Seaboard
Corporation ("Seaboard") undertakes to provide to the SEC
the Schedules and Exhibits, as requested, subject to
Seaboard's right to request confidential treatment under the
Freedom of Information Act.
Schedule 1.01 -- Mandatory Cost Formulae
Schedule 1.01(a) -- Applicable Rate
Schedule 1.01(b) -- Definition of "Excluded Transaction"
Schedule 2.01 -- Commitments and Applicable Percentages
Schedule 5.05 -- Supplement to Interim Financial Statements
Schedule 5.13 -- Subsidiaries; Other Equity Investments
Schedule 5.18 -- Identification Numbers for Designated Borrowers that
are Foreign Subsidiaries
Schedule 10.02 -- Administrative Agent's Office; Certain Addresses for
Notices
Exhibit A -- Form of Committed Loan Notice
Exhibit B -- Form of Swing Line Loan Notice
Exhibit C -- Form of Note
Exhibit D -- Form of Compliance Certificate
Exhibit E-1 -- Assignment and Assumption
Exhibit E-2 -- Form of Administrative Questionnaire
Exhibit F -- Form of Letter of Credit Information Report
Exhibit G -- Form of Designated Borrower Request and Assumption
Agreement
Exhibit H -- Form of Designated Borrower Notice
Exhibit I -- Opinion
Exhibit J -- Form of Company Guaranty