Exhibit 4.2
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LONG TERM CREDIT AGREEMENT
Dated as of July 3, 2002,
among
REPUBLIC SERVICES, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
BANK ONE, NA,
SUNTRUST BANK,
and
BARCLAYS BANK PLC,
as Co-Documentation Agents
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
BANC OF AMERICA SECURITIES LLC
and
SALOMON SMITH BARNEY, INC.
as
Joint Lead Arrangers and Joint Book Managers
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ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms...................................................................................1
1.2 Other Interpretive Provisions..........................................................................19
1.3 Accounting Principles..................................................................................20
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments.......................................................................20
2.2 Loan Accounts..........................................................................................20
2.3 Procedure for Committed Borrowing......................................................................21
2.4 Conversion and Continuation Elections for Committed Borrowings.........................................22
2.5 Voluntary Termination or Reduction of Commitments......................................................23
2.6 Optional Prepayments...................................................................................23
2.7 Repayment..............................................................................................24
2.8 Interest...............................................................................................24
2.9 Fees...................................................................................................25
2.10 Computation of Fees and Interest.......................................................................26
2.11 Payments by the Company................................................................................26
2.12 Payments by the Lenders to the Administrative Agent....................................................27
2.13 Sharing of Payments, Etc...............................................................................27
2.14 Swing Line Commitment..................................................................................29
2.15 Borrowing Procedures for Swing Line Loans..............................................................29
2.16 Prepayment or Refunding of Swing Line Loans............................................................30
2.17 Participations in Swing Line Loans.....................................................................30
2.18 Participation Obligations Unconditional................................................................31
2.19 Conditions to Swing Line Loans.........................................................................31
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility.......................................................................31
3.2 Issuance, Amendment and Renewal of Letters of Credit...................................................33
3.3 Risk Participations, Drawings and Reimbursements.......................................................35
3.4 Repayment of Participations............................................................................36
3.5 Role of the Issuing Lenders............................................................................37
3.6 Obligations Absolute...................................................................................37
3.7 Cash Collateral Pledge.................................................................................38
3.8 Letter of Credit Fees..................................................................................39
3.9 Applicability of ISP98 and UCP.........................................................................39
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes..................................................................................................40
4.2 Illegality.............................................................................................41
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4.3 Increased Costs and Reduction of Return................................................................42
4.4 Funding Losses.........................................................................................42
4.5 Inability to Determine Rates...........................................................................43
4.6 Certificates of Lenders................................................................................43
4.7 Mitigation.............................................................................................44
4.8 Substitution of Lenders................................................................................44
4.9 Survival...............................................................................................44
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness............................................................................44
5.2 Conditions to All Credit Extensions....................................................................46
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence and Power..........................................................................47
6.2 Corporate Authorization; No Contravention..............................................................47
6.3 Governmental Authorization.............................................................................47
6.4 Binding Effect.........................................................................................48
6.5 Litigation.............................................................................................48
6.6 No Default.............................................................................................48
6.7 ERISA Compliance.......................................................................................48
6.8 Use of Proceeds; Margin Regulations....................................................................49
6.9 Title to Properties....................................................................................49
6.10 Taxes..................................................................................................49
6.11 Financial Condition....................................................................................49
6.12 Environmental Matters..................................................................................50
6.13 Regulated Entities.....................................................................................50
6.14 No Burdensome Restrictions.............................................................................50
6.15 Copyrights, Patents, Trademarks and Licenses, etc......................................................50
6.16 Subsidiaries...........................................................................................50
6.17 Insurance..............................................................................................51
6.18 Solvency...............................................................................................51
6.19 Full Disclosure........................................................................................51
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Financial Statements...................................................................................51
7.2 Certificates; Other Information........................................................................52
7.3 Notices................................................................................................53
7.4 Preservation of Corporate Existence, Etc...............................................................54
7.5 Maintenance of Property................................................................................54
7.6 Insurance..............................................................................................54
7.7 Payment of Obligations.................................................................................54
7.8 Compliance with Laws...................................................................................55
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7.9 Compliance with ERISA..................................................................................55
7.10 Inspection of Property and Books and Records...........................................................55
7.11 Environmental Laws.....................................................................................55
7.12 Use of Proceeds........................................................................................55
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Financial Condition Covenants..........................................................................56
8.2 Limitation on Liens....................................................................................56
8.3 Disposition of Assets..................................................................................57
8.4 Consolidations and Mergers.............................................................................58
8.5 Loans and Investments..................................................................................58
8.6 Limitation on Subsidiary Indebtedness..................................................................58
8.7 Transactions with Affiliates...........................................................................58
8.8 Use of Proceeds........................................................................................59
8.9 Restricted Payments....................................................................................59
8.10 ERISA..................................................................................................59
8.11 Change in Business.....................................................................................59
8.12 Accounting Changes.....................................................................................59
8.13 Burdensome Agreements..................................................................................59
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default.......................................................................................60
9.2 Remedies...............................................................................................62
9.3 Rights Not Exclusive...................................................................................62
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization of Administrative Agent..................................................62
10.2 Delegation of Duties...................................................................................63
10.3 Liability of Administrative Agent......................................................................63
10.4 Reliance by Administrative Agent.......................................................................64
10.5 Notice of Default......................................................................................64
10.6 Credit Decision; Disclosure of Information by Administrative Agent.....................................64
10.7 Indemnification of Administrative Agent................................................................65
10.8 Administrative Agent in its Individual Capacity........................................................66
10.9 Successor Administrative Agent.........................................................................66
10.10 Administrative Agent May File Proofs of Claim..........................................................67
10.11 Other Agents; Arrangers and Managers...................................................................67
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ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers.................................................................................68
11.2 Notices and Other Communications; Facsimile Copies.....................................................69
11.3 No Waiver; Cumulative Remedies.........................................................................70
11.4 Attorney Costs, Expenses and Taxes.....................................................................70
11.5 Indemnification by the Company.........................................................................70
11.6 Payments Set Aside.....................................................................................71
11.7 Successors and Assigns.................................................................................71
11.8 Assignments, Participations, etc.......................................................................72
11.9 Confidentiality........................................................................................75
11.10 Set-off................................................................................................76
11.11 Notification of Addresses, Lending Offices, Etc........................................................76
11.12 Counterparts...........................................................................................76
11.13 Severability...........................................................................................77
11.14 No Third Parties Benefited.............................................................................77
11.15 Tax Forms..............................................................................................77
11.16 Governing Law and Jurisdiction.........................................................................78
11.17 Waiver of Right to Trial by Jury.......................................................................79
11.18 Entire Agreement.......................................................................................79
11.19 Survival of Representations and Warranties.............................................................79
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LONG TERM CREDIT AGREEMENT
This LONG TERM CREDIT AGREEMENT is entered into as of July 3, 2002,
among REPUBLIC SERVICES, INC., a Delaware corporation (the "Company"), the
several financial institutions from time to time party to this Agreement
(collectively the "Lenders"; individually each a "Lender") and BANK OF AMERICA,
N.A., as administrative agent for the Lenders.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
ACQUIRED PLAN means any Plan which was originally established
and maintained by a Person other than the Company or an ERISA Affiliate
and which became, or hereafter becomes, a Plan as a result of an
Acquisition by the Company or any Subsidiary.
ACQUISITION means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of all or substantially all of any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than
a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
ADJUSTED PRO RATA SHARE means for any Lender at any time the
proportion (expressed as a decimal, rounded to the ninth decimal place)
which such Lender's Commitment constitutes of the combined Commitments
(or, after the Commitments have terminated, which (i) the principal
amount of such Lender's Loans PLUS (without duplication) the
participation of such Lender in (or in the case of an Issuing Lender or
the Swing Line Lender, its unparticipated portion of) the Effective
Amount of all L/C Obligations and the principal amount of all Swing
Line Loans constitutes of (ii) the aggregate principal amount of all
Loans PLUS (without duplication) the Effective Amount of all L/C
Obligations).
ADMINISTRATIVE AGENT means BofA in its capacity as agent for
the Lenders hereunder, and any successor agent arising under SECTION
10.9.
ADMINISTRATIVE AGENT-RELATED PERSONS means the Administrative
Agent, together with its Affiliates (including, in the case of BofA in
its capacity as the Administrative Agent, BAS), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
ADMINISTRATIVE AGENT'S PAYMENT OFFICE means the address for
payments set forth on SCHEDULE 11.2 or such other address as the
Administrative Agent may from time to time specify by notice to the
Company and the Lenders.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
AFFILIATE means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract or
otherwise.
AGREEMENT means this Credit Agreement.
APPLICABLE MARGIN - see SCHEDULE 1.1.
APPROVED FUND - see SUBSECTION 11.8(G).
ARRANGERS means collectively, BAS and Salomon Smith Barney,
Inc.
ASSIGNEE - see SUBSECTION 11.8(A).
ASSIGNMENT AND ASSUMPTION means an Assignment and Assumption
substantially in the form of EXHIBIT C.
ATTORNEY COSTS means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
ATTRIBUTABLE INDEBTEDNESS means, on any date, (a) 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 (b)
in respect of any Securitization Transaction, the aggregate amount of
obligations owed to (including the amount of investment in transferred
assets by) Persons other than the Company or its Subsidiaries.
BANKRUPTCY CODE means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C.ss.101, ET SEQ.).
BAS means Banc of America Securities LLC, in its capacity as
joint lead arranger and joint book manager.
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 BofA as its "prime rate." The "prime
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rate" is a rate set by BofA based upon various factors including BofA'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 BofA 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, or an L/C
Advance, that bears interest based on the Base Rate.
BOFA means Bank of America, N.A., a national banking
association.
BORROWING means a borrowing hereunder consisting of Committed
Loans of the same Type, made to the Company on the same day by one or
more Lenders under ARTICLE II and, other than in the case of Base Rate
Committed Loans, having the same Interest Period. A Borrowing is a
Committed Borrowing.
BORROWING DATE means any date on which a Borrowing occurs
under SECTION 2.3 or a Swing Line Loan is made under SECTION 2.14.
BUSINESS DAY means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Chicago or San
Francisco are authorized or required by law to close and, if the
applicable Business Day relates to any Offshore Rate Loan, means such a
day on which dealings in Dollars are carried on in the London interbank
market.
CANADIAN CURRENCY EQUIVALENT AMOUNT means, with respect to the
Canadian Dollar and a specified Dollar amount, the amount of Canadian
Dollars into which such Dollar amount would be converted, based on the
Exchange Rate.
CANADIAN DOLLARS means the lawful currency of Canada.
CANADIAN L/C means a Letter of Credit which is denominated in
Canadian Dollars.
CAPITAL ADEQUACY REGULATION means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
CAPITAL LEASE means, with respect to any Person, any lease of
(or other agreement conveying the right to use) any real or personal
property by such Person that, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of such Person.
CASH COLLATERALIZE means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Administrative
Agent, the Issuing Lenders and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances
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pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Required Lenders. Derivatives of such term
shall have corresponding meanings. Cash collateral shall be maintained
in blocked accounts at the Administrative Agent or, with the
Administrative Agent's consent, the applicable Issuing Lender.
CHANGE OF CONTROL means (a) if any Person or group of Persons
acting in concert shall own or control, directly or indirectly, more
than 20% of the outstanding securities (on a fully diluted basis and
taking into account any securities or contract rights exercisable,
exchangeable or convertible into equity securities) of the Company
having voting rights in the election of directors; or (b) during any
period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of such Person cease to
be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at
the time of such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one
or more directors by any person or group other than a solicitation for
the election of one or more directors by or on behalf of the board of
directors).
CODE means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
COMMITMENT - see SECTION 2.1. As of the Effective Date, the
amount of the combined Commitments of all Lenders is $450,000,000.
COMMITTED BORROWING means a Borrowing hereunder consisting of
Committed Loans made by the Lenders ratably according to their
respective Pro Rata Shares.
COMMITTED LOAN means a Loan by a Lender to the Company under
SECTION 2.1, which may be a Base Rate Committed Loan or an Offshore
Rate Loan (each a "Type" of Committed Loan).
COMPANY - see the PREAMBLE.
COMPLIANCE CERTIFICATE means a certificate substantially in
the form of EXHIBIT D.
COMPUTATION PERIOD means any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
CONSOLIDATED EBITDA means, with respect to the Company and its
Subsidiaries for any period of computation thereof during such period,
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the sum of, without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense during such period, plus (iii) taxes on
income during such period, plus (iv) amortization during such period,
plus (v) depreciation during such period, determined, to the extent
applicable as a result of Acquisitions during such period, on a pro
forma basis in accordance with Article 11 of Regulation S-X of the SEC.
CONSOLIDATED INTEREST EXPENSE means, with respect to any
period of computation thereof, the gross interest expense of the
Company and its Subsidiaries, including, without limitation, (i) the
amortization of debt discounts, (ii) the amortization of all fees
payable in connection with the incurrence of Indebtedness to the extent
included in interest expense, (iii) the portion of any liabilities
incurred in connection with Capital Leases allocable to interest
expense and (iv) consolidated yield or discount accrued on the
aggregate outstanding investment or claim held by purchasers, assignees
or other transferees of (or of interests in) receivables of the Company
and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
CONSOLIDATED NET INCOME means, for any period of computation
thereof, the gross revenues from operations of the Company and its
Subsidiaries, less all operating and non-operating expenses of the
Company and its Subsidiaries, including taxes on income but excluding
all non-cash, nonrecurring charges and all extraordinary gains or
losses.
CONSOLIDATED SHAREHOLDERS' EQUITY means consolidated
shareholders' equity as shown on the Company's balance sheet, excluding
the amount of any foreign currency translation adjustment which is
included in the equity section of such balance sheet (whether positive
or negative) and minus all loans and advances by the Company or any
Subsidiary to any Affiliate (other than the Company or a Subsidiary).
CONSOLIDATED TANGIBLE ASSETS means the consolidated total
assets of the Company and its Subsidiaries but excluding goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights and
any other intangible assets.
CONTINGENT OBLIGATION means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, (a) with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (iv) otherwise
to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each a "Guaranty Obligation"); (b)
with respect to any Surety Instrument issued for the account of such
Person or as to which such Person is otherwise liable for reimbursement
of drawings or payments; or (c) to purchase any materials,
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supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property,
or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or
such services are ever performed or tendered. The amount of any
Contingent Obligation shall (a) in the case of Guaranty Obligations, be
deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made
(subject to any limitation set forth in such guaranty) or, if not
stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof, and (b) in the case of other Contingent
Obligations, be equal to the maximum reasonably anticipated liability
in respect thereof.
CONTRACTUAL OBLIGATION means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other document to which
such Person is a party or by which it or any of its property is bound.
CONVERSION/CONTINUATION DATE means any date on which, under
SECTION 2.4, the Company (a) converts Committed Loans of one Type to
the other Type or (b) continues Offshore Rate Loans for a new Interest
Period.
CREDIT EXTENSION means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
DOLLAR EQUIVALENT AMOUNT means, with respect to a Canadian
Dollar amount, the amount of Dollars into which the Canadian Dollar
amount would be converted, based on the applicable Exchange Rate.
DOLLAR VALUE of a Letter of Credit in a Canadian Dollar amount
means the Dollar Equivalent Amount of the stated amount of such Letter
of Credit as recorded in the Administrative Agent's records pursuant to
SECTION 3.1(C).
DOLLARS, DOLLARS and $ each mean lawful money of the United
States.
EFFECTIVE AMOUNT means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date, any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letter of
Credit or any reduction in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
EFFECTIVE DATE - see SECTION 5.1.
ELIGIBLE ASSIGNEE - see SUBSECTION 11.8(G).
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ENVIRONMENTAL CLAIMS means all written claims, however
asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
ENVIRONMENTAL LAWS means all federal, state, local or
municipal laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative or judicial
orders, directed duties, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authorities, in each case
relating to environmental matters.
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 of
its Affiliates 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.
ERISA means the Employee Retirement Income Security Act of
1974, and the regulations promulgated thereunder.
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 substantial cessation of operations which is treated
as such a withdrawal; (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 a Pension Plan under Section
4041(c) of ERISA, the termination of a Multiemployer Plan under 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
might reasonably be expected to constitute 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 PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
EVENT OF DEFAULT means any of the events or circumstances
specified in SECTION 9.1; provided that any requirement of notice or
lapse of time (or both) has been satisfied.
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EXCHANGE RATE means, with respect to the issuance of a
Canadian L/C, the Spot Rate of Exchange as of the date two Business
Days preceding the Valuation Date.
EXISTING CREDIT AGREEMENTS means, collectively, (i) that
certain Short Term Credit Agreement, dated as of July 10, 1998, as
amended, by and among the Company, Bank of America, N.A., as agent, and
the lenders party thereto, and (ii) that certain Long Term Credit
Agreement, dated as of July 10, 1998, as amended, by and among the
Company, Bank of America, N.A., as agent, and the lenders party
thereto.
EXISTING LETTERS OF CREDIT means the letters of credit listed
on SCHEDULE 3.3.
FACILITY FEE RATE - see SCHEDULE 1.1.
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 on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
BofA on such day on such transactions as determined by the
Administrative Agent.
FRB means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
FUND - see SUBSECTION 11.8(G).
FURTHER TAXES means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to SECTION 4.1.
GAAP means generally accepted accounting principles set forth
from time to time 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 agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
GOVERNMENTAL AUTHORITY means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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GUARANTY OBLIGATION has the meaning specified in the
definition of Contingent Obligation.
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.
HONOR DATE has the meaning specified in SUBSECTION 3.3 (A).
INDEBTEDNESS of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
in the ordinary course of business on ordinary terms); (c) all
reimbursement or payment obligations of such Person with respect to
Surety Instruments; (d) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments; (e) all indebtedness
of such Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property);
(f) all obligations of such Person with respect to Capital Leases; (g)
Attributable Indebtedness; (h) all indebtedness of the types referred
to in CLAUSES (A) through (G) above secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, provided
that the amount of any such Indebtedness shall be deemed to be the
lesser of the face principal amount thereof and the fair market value
of the property subject to such Lien; and (i) all Guaranty Obligations
of such Person in respect of Indebtedness of the types described above;
PROVIDED that Indebtedness shall not include obligations arising out of
the endorsement of instruments for deposit or collection in the
ordinary course of business. For all purposes of this Agreement, the
Indebtedness of any Person shall include all Indebtedness of any
partnership or joint venture in which such Person is a general partner
or a joint venturer (other than any such Indebtedness which is
expressly non-recourse to such Person).
INDEMNIFIED LIABILITIES - see SECTION 11.5.
INDEMNITEES - see SECTION 11.5.
INDEPENDENT AUDITOR - see SUBSECTION 7.1(A).
INSOLVENCY PROCEEDING means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the
9
benefit of creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; in each case undertaken under
any U.S. Federal, state or foreign law, including the Bankruptcy Code.
INTEREST PAYMENT DATE means, as to any Loan other than a Base
Rate Committed Loan or Swing Line Loan, the last day of each Interest
Period applicable to such Loan and, as to any Base Rate Committed Loan
or Swing Line Loan, the last Business Day of each calendar quarter,
provided that if any Interest Period for an Offshore Rate Loan exceeds
three months, each three-month anniversary of the first day of such
Interest Period also shall be an Interest Payment Date.
INTEREST PERIOD means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the date on
which such Loan is converted into or continued as an Offshore Rate
Loan, and ending on the date one, two, three or six months thereafter
as selected by the Company in its Notice of Committed Borrowing or
Notice of Conversion/Continuation, as the case may be; PROVIDED that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period for an Offshore Rate Loan
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 for any Loan shall extend
beyond the Termination Date.
INVESTMENT - see SECTION 8.5.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
ISSUANCE DATE has the meaning specified in SUBSECTION 3.1(A).
ISSUE means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
ISSUING LENDER means BofA in its capacity as issuer of one or
more Letters of Credit hereunder, together with (i) any replacement
letter of credit issuer arising under SUBSECTION 10.1(B) or SECTION
10.9 and (ii) any other Lender or any Affiliate of a Lender which has
agreed in writing to become an "Issuing Lender" hereunder.
10
L/C ADVANCE means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C AMENDMENT APPLICATION means an application form for
amendment of an outstanding standby letter of credit as shall at any
time be in use by the applicable Issuing Lender, as such Issuing Lender
shall request.
L/C APPLICATION means an application form for issuance of a
standby letter of credit as shall at any time be in use by the
applicable Issuing Lender, as such Issuing Lender shall request;
provided, however, that to the extent an L/C Application is
inconsistent with the provisions of this Agreement, the provisions of
this Agreement shall control.
L/C BORROWING means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Committed Loans
under SUBSECTION 3.3(C).
L/C COMMITMENT means the commitment of the Issuing Lenders to
Issue, and the commitment of the Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding under ARTICLE
III (including the Existing Letters of Credit) in an aggregate amount
not to exceed on any date the lesser of (a) $450,000,000 or (b) the
combined Commitments. The L/C Commitment is part of, and not in
addition to, the combined Commitments.
L/C FEE RATE - see SCHEDULE 1.1.
L/C OBLIGATIONS means at any time the sum of (a) the aggregate
Dollar Equivalent Amount of all undrawn Canadian L/Cs and Dollar amount
of all other undrawn Letters of Credit then outstanding, plus (b) the
Dollar Equivalent Amount of all unreimbursed drawings under all
Canadian L/Cs, plus (c) the Dollar amount of all unreimbursed drawings
under all other Letters of Credit, including all outstanding L/C
Borrowings.
L/C-RELATED DOCUMENTS means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the applicable
Issuing Lender's standard form documents for letter of credit
issuances.
LENDER - see the PREAMBLE. References to the "Lenders" shall
include BofA in its capacity as Swing Line Lender and each Issuing
Lender in its capacity as such; for purposes of clarification only, to
the extent that the Swing Line Lender or any Issuing Lender may have
any rights or obligations in addition to those of the other Lenders due
to its status as Swing Line Lender or Issuing Lender, its status as
such will be specifically referenced.
LENDING OFFICE means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending
11
Office" or "Offshore Lending Office", as the case may be, on SCHEDULE
11.2, or such other office or offices as such Lender may from time to
time notify the Company and the Administrative Agent.
LETTER OF CREDIT means each Existing Letter of Credit and any
other standby letter of credit Issued by an Issuing Lender pursuant to
ARTICLE III.
LIBOR - see the definition of Offshore Rate.
LIEN means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
Capital Lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
LOAN means an extension of credit by a Lender to the Company
under ARTICLE II or ARTICLE III in the form of a Committed Loan, Swing
Line Loan or L/C Advance.
LOAN DOCUMENTS means this Agreement, any Notes, the
L/C-Related Documents and all other documents delivered to the
Administrative Agent or any Lender in connection herewith.
MARGIN STOCK means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
MATERIAL ADVERSE EFFECT means a material adverse change in, or
a material adverse effect upon, the operations, business, properties,
assets or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
MATERIAL FINANCIAL OBLIGATIONS means Indebtedness,
Attributable Indebtedness, Contingent Obligations and obligations under
Swap Contracts of the Company or any Subsidiary, and obligations of the
Company or any Subsidiary in respect of any Securitization Transaction,
in an aggregate amount (or in the case of a Swap Contract having a Swap
Contract Value), for all such Indebtedness, Attributable Indebtedness,
Contingent Obligations, obligations under Swap Contracts and
obligations in respect of Securitization Transactions, but without
duplication, equal to $25,000,000 or more.
MOODY'S means Moody's Investor Service, Inc., a Delaware
corporation.
MULTIEMPLOYER PLAN means a "multiemployer plan", within the
meaning of Section 4001 (a) (3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
NOTE means a promissory note executed by the Company in favor
of a Lender pursuant to SUBSECTION 2.2(B), in substantially the form of
EXHIBIT F.
12
NOTICE OF COMMITTED BORROWING means a notice in substantially
the form of EXHIBIT A.
NOTICE OF CONVERSION/CONTINUATION means a notice in
substantially the form of EXHIBIT B.
NOTICE OF SWING LINE LOAN means a notice substantially in the
form of EXHIBIT G.
OBLIGATIONS means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Lender, the Administrative Agent or any other
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
or now existing or hereafter arising.
OFFSHORE RATE means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/32nd of 1%) determined
by the Administrative Agent pursuant to the following formula:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means, for any day
during any Interest Period, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on
such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Offshore Rate for each
outstanding Offshore Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar
Reserve Percentage; and
"LIBOR" means, for such Interest Period:
(a) the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate that
appears on the page of the Telerate screen (or any successor
thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause
(a) does not appear on such page or service or such page or
service shall not be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the
13
offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding clauses
(a) and (b) are not available, the rate per annum determined
by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of
the Offshore Rate Loan being made, continued or converted by
BofA and with a term equivalent to such Interest Period would
be offered by BofA's London Branch to major banks in the
London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Business Days prior
to the first day of such Interest Period.
OFFSHORE RATE LOAN means a Committed Loan that bears interest
based on the Offshore Rate.
ORGANIZATION DOCUMENTS means (i) for any corporation, the
certificate of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint
venture, the partnership or joint venture agreement and any other
organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating
agreement and any other organizational document of such limited
liability company, (iv) for any trust, the declaration of trust, the
trust agreement and any other organizational document of such trust and
(v) for any other entity, the document or agreement pursuant to which
such entity was formed and any other organizational document of such
entity.
OTHER TAXES means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
PARTICIPANT - see SUBSECTION 11.8(D).
PAYMENT SHARING NOTICE means a written notice from the Company
or any Lender informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the Administrative
Agent to allocate payments received from the Company in accordance with
SUBSECTION 2.13 (B).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
14
PENSION PLAN means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA, other than a Multiemployer
Plan, with respect to which the Company or any ERISA Affiliate may have
any liability.
PERMITTED LIENS - see SECTION 8.2.
PERSON means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
PLAN ACQUISITION DATE means, with respect to any Acquired
Plan, the first date on which the Company or any ERISA Affiliate may
have any liability with respect to such Acquired Plan.
PLAN means an employee benefit plan (as defined in Section
3(3) of ERISA), other than a Multiemployer Plan, with respect to which
the Company or any ERISA Affiliate may have any liability, and includes
any Pension Plan.
PRO RATA SHARE means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place) which such
Lender's Commitment constitutes of the combined Commitments, or, after
the Commitments have terminated, which (i) the principal amount of such
Lender's Committed Loans PLUS (without duplication) the participation
of such Lender in (or in the case of an Issuing Lender or the Swing
Line Lender, the unparticipated portion of) the Effective Amount of all
L/C Obligations and the principal amount of all Swing Line Loans
constitutes of (ii) the aggregate principal amount of all Committed
Loans and Swing Line Loans PLUS (without duplication) the Effective
Amount of all L/C Obligations.
RATING means the long-term, unsecured, unenhanced debt rating
assigned to senior Indebtedness of the Company by S&P and Moody's.
REPORTABLE EVENT means, any of the events set forth in Section
4043 (c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
REQUIRED LENDERS means Lenders holding Adjusted Pro Rata
Shares aggregating more than 50%; PROVIDED that if and so long as any
Lender fails to fund any Committed Loan when required by SECTION 2.16
or SECTION 3.3 or a participation in a Swing Line Loan or an L/C
Borrowing pursuant to SECTION 2.17 or SECTION 3.3, as the case may be,
such Lender's Adjusted Pro Rata Share shall be deemed for purposes of
this definition to be reduced by the percentage which the defaulted
amount constitutes of the combined Commitments (or, if the Commitments
have terminated, the Total Outstandings), and the Adjusted Pro Rata
Share of the applicable Issuing Lender or the Swing Line Lender, as the
case may be, shall be deemed for purposes of this definition to be
increased by such percentage.
REQUIREMENT OF LAW means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental
15
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
RESPONSIBLE OFFICER means the chief executive officer, the
president or any vice president of the Company, or any other officer
having substantially the same authority and responsibility; or, with
respect to financial matters, the chief financial officer, the vice
president-finance, the treasurer or any assistant treasurer of the
Company, or any other officer having substantially the same authority
and responsibility.
RESTRICTED CASH means that amount of cash of the Company and
its Subsidiaries reserved in a restricted trustee controlled account,
as shown on the balance sheet of the Company, at any Computation Date,
on the line item "Restricted Cash."
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 of
any option, warrant or other right to acquire any such capital stock or
other equity interest.
S&P means Standard & Poors Rating Group, a division of
McGraw-Hill.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
SECURITIZATION TRANSACTION means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or any
Subsidiary or any interest in any of the foregoing, together in each
case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or
other property or claims in favor of the Company or such Subsidiary
supporting or securing payment by the obligor thereon of, or otherwise
related to, any such receivables.
SHORT TERM CREDIT AGREEMENT means that certain Short Term
Credit Agreement dated as of July 3, 2002 among the Company, certain
financial institutions as lenders and BofA as administrative agent,
issuing lender and swing line lender.
SOLVENT means, when used with respect to any Person, that at
the time of determination:
(a) the fair value of its assets (both at fair valuation and
at present fair saleable value on an orderly basis) is in excess of the
total amount of its liabilities, including Contingent Obligations; and
(b) it is then able and expects to be able to pay its debts as
they mature; and
16
(c) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
SPOT RATE OF EXCHANGE means, (i) in determining the Dollar
Equivalent Amount of a specified Canadian Dollar amount as of any date,
the spot exchange rate determined by the Administrative Agent in
accordance with its usual procedures for the purchase by the
Administrative Agent of Dollars with Canadian Dollars at approximately
10:00 A.M. on the Business Day that is two (2) Business Days prior to
such date, and (ii) in determining the Canadian Currency Equivalent
Amount of a specified Dollar amount on any date, the spot exchange rate
determined by the Administrative Agent in accordance with its usual
procedures for the purchase by the Administrative Agent of Canadian
Dollars with Dollars at approximately 10:00 A.M. on the Business Day
that is two (2) Business Days prior to such date.
SUBSIDIARY of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
SURETY INSTRUMENTS means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
SWAP CONTRACT means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or bill option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
SWAP CONTRACT VALUE means, with respect to each Swap Contract,
the net obligations of the Company or any Subsidiary thereunder that
would be payable in accordance with its provisions as a result of the
occurrence of an early termination date under such Swap Contract, as
determined in accordance with its provisions.
SWING LINE COMMITMENT means the commitment of the Swing Line
Lender to make Swing Line Loans hereunder.
SWING LINE LENDER means BofA in its capacity as swing line
lender hereunder, together with any replacement swing line lender
arising under SECTION 10.9.
SWING LINE LOAN - see SECTION 2.14.
17
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).
TAXES means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on or
measured by its net income.
TERMINATION DATE means the earlier to occur of:
(a) July 3, 2007; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
TOTAL DEBT means, at any time, the sum (determined on a
consolidated basis and without duplication) of all Indebtedness of the
Company and its Subsidiaries, excluding contingent obligations with
respect to Surety Instruments (other than any letter of credit issued
for the account of the Company or any Subsidiary to support
Indebtedness of a Person other than the Company or any Subsidiary).
TOTAL DEBT TO EBITDA RATIO means in respect of any Computation
Period the ratio of (a) Total Debt MINUS Restricted Cash, as at the end
of such Computation Period, to (b) Consolidated EBITDA for such
Computation Period.
TOTAL OUTSTANDINGS means the sum of the aggregate principal
amount of all outstanding Loans (whether Committed Loans or Swing Line
Loans) plus the Effective Amount of all L/C Obligations.
TYPE has the meaning specified in the definition of "Committed
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 such Plan's assets, determined in accordance with
the assumptions used for funding such Pension Plan pursuant to Section
412 of the Code for the applicable plan year.
UNITED STATES and U.S. each means the United States of
America.
UNMATURED EVENT OF DEFAULT means any event or circumstance
which, with the giving of notice, the lapse of time or both, will (if
not cured or otherwise remedied during such time) constitute an Event
of Default.
UTILIZATION FEE RATE - see SCHEDULE 1.1.
18
VALUATION DATE means any of (i) the date of any Credit
Extension, (ii) the date of any L/C Borrowing, and (iii) any other date
when there are outstanding Canadian L/Cs that the Administrative Agent
shall determine the Dollar Equivalent Amount of Canadian L/Cs.
WHOLLY-OWNED SUBSIDIARY means any Subsidiary in which (other
than directors' qualifying shares required by law) 100% of the capital
stock, membership interests or other equity interests of each class
having ordinary voting power, and 100% of the capital stock, membership
interests or other equity interests of every other class, in each case,
at the time as of which any determination is being made, is owned,
beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and subsection, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) 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."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in
19
accordance with their terms. Unless otherwise expressly provided
herein, any reference to any action of the Administrative Agent, the
Lenders or the Required Lenders by way of consent, approval or waiver
shall be deemed modified by the phrase "in its/their reasonable
discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the
Administrative Agent, the Company and the other parties, and are the
products of all parties. Accordingly, they shall not be construed
against the Lenders or the Administrative Agent merely because of the
Administrative Agent's or Lenders' involvement in their preparation.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise requires, all accounting
terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied, but without giving effect
to any change in GAAP which would require the Company to
"mark-to-market" its obligations under Swap Contracts (unless the
Company and the Required Lenders agree to give effect to such change);
PROVIDED that if the Company notifies the Administrative Agent that the
Company wishes to amend any covenant in ARTICLE VIII to eliminate the
effect of any change in GAAP on the operation of such covenant (or if
the Administrative Agent notifies the Company that the Required Lenders
wish to amend ARTICLE VIII for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required
Lenders.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS. Each Lender severally agrees, on
the terms and conditions set forth herein, to make Committed Loans to the
Company from time to time on any Business Day during the period from the
Effective Date to the Termination Date, in an aggregate amount not to exceed at
any time outstanding the amount set forth on SCHEDULE 2.1 (such amount, as
reduced pursuant to SECTION 2.5, or changed by one or more assignments under
SECTION 11.8, such Lender's "Commitment"); PROVIDED, HOWEVER, that, after giving
effect to any Committed Borrowing, the Total Outstandings shall not exceed the
combined Commitments; AND PROVIDED, FURTHER, that the aggregate principal amount
of the Committed Loans of any Lender PLUS the participation of such Lender in
the principal amount of all outstanding Swing Line Loans and in the Effective
Amount of all L/C Obligations shall not at any time exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this SECTION
2.1, prepay under SECTION 2.6 and reborrow under this SECTION 2.1. If for any
reason the Total Outstandings at any
20
time exceed the combined Commitments then in effect, the Company shall
immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess.
2.2 LOAN ACCOUNTS.
(a) The Loans made by each Lender and the Letters of Credit
Issued by each Issuing Lender shall be evidenced by one or more
accounts or records maintained by such Lender or Issuing Lender, as the
case may be, in the ordinary course of business. The accounts or
records maintained by the Administrative Agent, each Issuing Lender and
each Lender shall be rebuttable presumptive evidence of the amount of
the Loans made by the Lenders to the Company and the Letters of Credit
Issued for the account of the Company, and the interest and payments
thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans or any
Letter of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by
one or more Notes, instead of or in addition to loan accounts. Each
such Lender shall endorse on the schedules annexed to its Note(s) the
date, amount and maturity of each Loan evidenced thereby and the amount
of each payment of principal made by the Company with respect thereto.
Each such Lender is irrevocably authorized by the Company to endorse
its Note(s) and each Lender's record shall be rebuttable presumptive
evidence of the amount of the Loans evidenced thereby, and the interest
and payments thereon; provided, however, that the failure of a Lender
to make, or an error in making, a notation thereon with respect to any
Loan shall not limit or otherwise affect the obligations of the Company
hereunder or under any such Note to such Lender.
2.3 PROCEDURE FOR COMMITTED BORROWING.
(a) Each Committed Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Administrative Agent in the
form of a Notice of Committed Borrowing, which notice must be received
by the Administrative Agent prior to (i) 10:30 a.m. (Chicago time)
three Business Days prior to the requested Borrowing Date, in the case
of Offshore Rate Loans, and (ii) 10:30 a.m. (Chicago time) on the
requested Borrowing Date, in the case of Base Rate Committed Loans,
specifying:
(A) the amount of the Committed Borrowing,
which shall be in an aggregate amount of $10,000,000
or a higher multiple of $1,000,000;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising such
Committed Borrowing; and
(D) in the case of Offshore Rate Loans, the
duration of the initial Interest Period applicable to
such Loans.
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(b) The Administrative Agent will promptly notify each Lender
of its receipt of any Notice of Committed Borrowing and of the amount
of such Lender's Pro Rata Share of such Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of
each Committed Borrowing available to the Administrative Agent for the
account of the Company at the Administrative Agent's Payment Office by
12:00 noon (Chicago time) on the Borrowing Date requested by the
Company in funds immediately available to the Administrative Agent. The
proceeds of all such Loans will then promptly be made available to the
Company by the Administrative Agent by wire transfer in accordance with
written instructions provided to the Administrative Agent by the
Company of like funds as received by the Administrative Agent.
(d) After giving effect to any Committed Borrowing, unless the
Administrative Agent otherwise consents, the number of Interest Periods
in effect hereunder shall not exceed 10.
2.4 CONVERSION AND CONTINUATION ELECTIONS FOR COMMITTED BORROWINGS.
(a) The Company may, upon irrevocable written notice to the
Administrative Agent in accordance with SUBSECTION 2.4(B):
(i) elect, as of any Business Day, in the
case of Base Rate Committed Loans, or as of the last day of
the applicable Interest Period, in the case of Offshore Rate
Loans, to convert such Loans (or any part thereof in an
aggregate amount of $10,000,000 or a higher integral multiple
of $1,000,000) into Committed Loans of the other Type; or
(ii) elect, as of the last day of the
applicable Interest Period, to continue any Offshore Rate
Loans having Interest Periods expiring on such day (or any
part thereof in an aggregate amount of $10,000,000 or a higher
integral multiple of $1,000,000) for another Interest Period;
PROVIDED that if at any time the aggregate amount of Offshore Rate
Loans in respect of any Borrowing is reduced, by payment, prepayment,
or conversion of any part thereof, to be less than $10,000,000, such
Offshore Rate Loans shall automatically convert into Base Rate
Committed Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not
later than 10:30 a.m. (Chicago time) (i) three Business Days in advance
of the Conversion/Continuation Date, if the Committed Loans are to be
converted into or continued as Offshore Rate Loans; and (ii) on the
Conversion/Continuation Date, if the Committed Loans are to be
converted into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
22
(B) the aggregate amount of Committed Loans
to be converted or continued;
(C) the Type of Committed Loans resulting
from the proposed conversion or continuation; and
(D) in the case of conversion into or
continuation of Offshore Rate Loans, the duration of
the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans (or any
Event of Default or Unmatured Event of Default exists and the Required
Lenders have not given the consent referred to in subsection (e)
below), such Offshore Rate Loans shall automatically convert into Base
Rate Committed Loans effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company, the Administrative Agent will
promptly notify each Lender of the details of any automatic conversion.
All conversions and continuations shall be made ratably according to
the respective outstanding principal amounts of the Committed Loans
with respect to which the notice was given held by each Lender.
(e) Unless the Required Lenders otherwise consent, the Company
may not elect to have a Loan converted into or continued as an Offshore
Rate Loan during the existence of an Event of Default or Unmatured
Event of Default.
(f) After giving effect to any conversion or continuation of
Loans, unless the Administrative Agent shall otherwise consent, the
number of Interest Periods in effect hereunder shall not exceed 10.
2.5 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Company may,
upon not less than three Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Commitments by a
minimum amount of $10,000,000 or a higher integral multiple of $1,000,000;
UNLESS, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the Total Outstandings would exceed the amount of the
combined Commitments then in effect. Once reduced in accordance with this
Section, the Commitments may not be increased. Any reduction of the Commitments
shall be applied to reduce the Commitment of each Lender according to its Pro
Rata Share. If the Company terminates the Commitments or reduces the Commitments
to zero, the Company shall pay all accrued and unpaid interest, fees and other
amounts payable hereunder on the date of such termination.
2.6 OPTIONAL PREPAYMENTS. Subject to the proviso to SUBSECTION 2.4(A)
and to SECTION 4.4, the Company may, from time to time, upon irrevocable notice
to the Administrative Agent, which notice must be received by the Administrative
Agent prior to 10:30 a.m. Chicago time (i) three Business Days prior to the date
of prepayment, in the case of Offshore Rate Loans, and (ii) on the date of
prepayment, in the case of Base Rate Committed Loans, ratably prepay Committed
23
Loans in whole or in part, in an aggregate amount of $10,000,000 or a higher
integral multiple of $1,000,000 (or, if any Base Rate Committed Loans have been
made pursuant to SUBSECTION 3.3(A), in an aggregate amount equal to the
aggregate amount of such Base Rate Committed Loans). Such notice of prepayment
shall specify the date and amount of such prepayment and the Committed Loans to
be prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of any such notice and of such Lender's Pro Rata Share 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, together with, in the case of Offshore
Rate Loans, accrued interest to such date on the amount prepaid and any amounts
required pursuant to SECTION 4.4.
2.7 REPAYMENT.
(a) The Company shall repay all Committed Loans on the
Termination Date.
(b) The Company shall repay each Swing Line Loan on the
earlier to occur of (i) the fourth Business Day following the giving of
notice from the Swing Line Lender to the Company and (ii) the
Termination Date.
2.8 INTEREST.
(a) Each Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate
per annum equal to (i) the Offshore Rate plus the Applicable Margin or
(ii) the Base Rate, as the case may be (and subject to the Company's
right to convert to the other Type of Committed Loan under SECTION
2.4). 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 or such other rate as may be agreed to
from time to time by the Company and the Swing Line Lender; provided
that after any purchase by the Lenders of a participation in a Swing
Line Loan, the rate of interest on such Swing Line Loan shall not be
less than the Base Rate.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest also shall be paid on the date of any
conversion of Offshore Rate Loans under SECTION 2.4 and prepayment of
Offshore Rate Loans under SECTION 2.6, in each case for the portion of
the Loans so converted or prepaid.
(c) Notwithstanding the foregoing provisions of this Section,
upon notice to the Company from the Agent (acting at the request or
with the consent of the Required Lenders) during the existence of any
Event of Default, and for so long as such Event of Default continues,
the Company shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal
amount of all outstanding Loans and, to the extent permitted by
applicable law, on any other amount payable hereunder or under any
other Loan Document, at a rate per annum which is determined by adding
2% per annum to the rate otherwise applicable thereto pursuant to the
terms hereof or such other Loan Document (or, if no such rate is
specified, the Base Rate). All such interest shall be payable on
demand.
24
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to
the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
such Lender would be contrary to the provisions of any law applicable
to such Lender limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Lender, and in
such event the Company shall pay such Lender interest at the highest
rate permitted by applicable law.
2.9 FEES. In addition to certain fees described in SECTION 3.8:
(a) ARRANGEMENT, AGENCY FEES. The Company agrees to pay to the
Administrative Agent and the Arrangers such fees at such times and in
such amounts as are mutually agreed to from time to time by the
Company, the Administrative Agent and the Arrangers.
(b) FACILITY FEES. The Company shall pay to the Administrative
Agent for the account of each Lender a facility fee computed at the
Facility Fee Rate per annum on the amount of such Lender's Commitment
as in effect from time to time (whether used or unused) or, if the
Commitments have terminated, on the sum (without duplication) of (i)
the principal amount of such Lender's Committed Loans plus (ii) the
participation of such Lender in (or in the case of an Issuing Lender or
the Swing Line Lender, its unparticipated portion of) the Effective
Amount of all L/C Obligations and the principal amount of all Swing
Line Loans. Such facility fee shall accrue from the Effective Date to
the Termination Date, and thereafter until all Committed Loans are paid
in full, and shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter, with the final payment to be
made on the Termination Date (or, if later, on the date all Committed
Loans and L/C Obligations are paid in full).
(c) UTILIZATION FEES. If, at any time, the sum of (1) the
Total Outstandings plus (2) the "Total Outstandings" under and as
defined in the Short Term Credit Agreement, exceeds 50% of the sum of
(1) the aggregate Commitments, plus (2) the aggregate "Commitments"
under and as defined in the Short Term Credit Agreement, the Company
shall pay to the Administrative Agent for the account of each Lender a
utilization fee for any period computed at a rate per annum equal to
the Utilization Fee Rate on the sum (without duplication) of (i) the
principal amount of such Lender's Committed Loans and L/C Obligations
plus (ii) the participation of such Lender in (or in the case of an
Issuing Lender or the Swing Line Lender, its unparticipated portion of)
the Effective Amount of all L/C Obligations and the principal amount of
all Swing Line Loans. Such utilization fee shall accrue from the
Effective Date to the Termination Date, and thereafter until all
Committed Loans are paid in full, and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter,
with the final payment to be made on the Termination Date (or, if
later, on the date all Committed Loans and L/C Obligations are paid in
full).
25
2.10 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest for Base Rate Committed Loans
(and Swing Line Loans bearing interest at the Base Rate) when the Base
Rate is determined by BofA'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 interest and fees shall be made on the basis
of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which such interest or such fees are
computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and
the Lenders in the absence of manifest error. The Administrative Agent
will, at the request of the Company or any Lender, deliver to the
Company or such Lender, as the case may be, a statement showing the
quotations used by the Administrative Agent in determining any interest
rate and the resulting interest rate.
2.11 PAYMENTS BY THE COMPANY.
(a) All payments to be made by the Company shall be made
without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Company shall be made to the Administrative Agent
for the account of the Lenders at the Administrative Agent's Payment
Office, and shall be made in Dollars and in immediately available
funds, no later than 1:00 p.m. (Chicago time) on the date specified
herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as expressly
provided herein) of such payment in like funds as received. Any payment
received by the Administrative Agent later than 1:00 p.m. (Chicago
time) shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day (unless,
in the case of a payment with respect to an Offshore Rate Loan, the
following Business Day is in another calendar month, in which case such
payment shall be made on the preceding Business Day), and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Company has notified the Administrative Agent,
prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Company will not make such
payment, the Administrative Agent may assume that the Company has
timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in
fact made to the Administrative Agent in immediately available funds,
then, if the Company failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of
such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
26
repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect. A notice of the
Administrative Agent to the Company with respect to any amount owing
under this subsection (c) shall be conclusive, absent manifest error.
2.12 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT.
(a) Unless the any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to
the Administrative Agent hereunder, that such Lender will not make such
payment, the Administrative Agent may assume that such Lender has
timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in
fact made to the Administrative Agent in immediately available funds,
then, if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Company to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Committed Loan included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Company, and
the Company shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the Administrative Agent or the Company may have against any Lender as
a result of any default by such Lender hereunder. A notice of the
Administrative Agent to any Lender with respect to any amount owing
under this subsection (a) shall be conclusive, absent manifest error.
(b) The obligations of the Lenders hereunder to make Committed
Loans and to fund participations in Letters of Credit and Swing Line
Loans are several and not joint. The failure of any Lender to make any
Committed Loan or to fund any such participation 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 or
purchase its participation.
2.13 SHARING OF PAYMENTS, ETC.
(a) Except as otherwise expressly provided herein, whenever
any payment received by the Administrative Agent to be distributed to
the Lenders is insufficient to pay in full the amounts then due and
payable to the Lenders, and the Administrative Agent has not received a
Payment Sharing Notice, such payment shall be distributed to the
Lenders (and for purposes of this Agreement shall be deemed to have
been applied by the Lenders, notwithstanding the fact that any Lender
may have made a different
27
application in its books and records) in the following order: FIRST, to
the payment of reimbursement obligations of the Company in respect of
any Letter of Credit; SECOND, to the payment of the principal amount of
the Loans which is then due and payable, ratably among the Lenders in
accordance with the aggregate principal amount owed to each Lender;
THIRD, to the payment of interest then due and payable on the Loans and
on the reimbursement obligations in respect of Letters of Credit,
ratably among the Lenders in accordance with the aggregate amount of
interest owed to each Lender; FOURTH, to the payment of the facility
fees and utilization fees payable under SUBSECTIONS 2.9(B) and (C) and
letter of credit fees payable under SECTION 3.8, ratably among the
Lenders in accordance with the amount of such fees owed to each Lender;
and FIFTH, to the payment of any other amount payable under this
Agreement, ratably among the Lenders in accordance with the aggregate
amount owed to each Lender.
(b) After the Administrative Agent has received a Payment
Sharing Notice, and for so long thereafter as any Event of Default
exists, all payments received by the Administrative Agent to be
distributed to the Lenders shall be distributed to the Lenders (and for
purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a
different application in its books and records) in the following order:
FIRST, to the payment of amounts payable under SECTIONS 11.4 and 11.5,
ratably among the Lenders in accordance with the aggregate amount owed
to each Lender; SECOND, to the payment of facility fees and utilization
fees payable under SUBSECTIONS 2.9(B) and (C) and letter of credit fees
payable under SECTION 3.8, ratably among the Lenders in accordance with
the amount of such fees owed to each Lender; THIRD, to the payment of
the interest accrued on and the principal amount of all of the Loans
and reimbursement obligations (including contingent reimbursement
obligations) regardless of whether any such amount is then due and
payable, ratably among the Lenders in accordance with the aggregate
accrued interest plus the aggregate principal amount owed to each
Lender; and FOURTH, to the payment of any other amount payable under
this Agreement, ratably among the Lenders in accordance with the
aggregate amount owed to each Lender.
(c) If, other than as expressly provided elsewhere herein, any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of principal of or interest on any Loan, or any
other amount payable hereunder, in excess of the share of payments and
other recoveries such Lender would have received if such payment or
other recovery had been distributed pursuant to the provisions of
SUBSECTION 2.13(A) or (B) (whichever is applicable at the time of such
payment or other recovery), such Lender shall immediately (i) notify
the Administrative Agent of such fact and (ii) purchase from the other
Lenders such participations in the Loans made by (or other Obligations
owed to) them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery pro rata with each of them
in accordance with the order of payments set forth in SUBSECTION
2.13(A) or (B), as the case may be; PROVIDED that if all or any portion
of such excess payment or other recovery is thereafter recovered from
the purchasing Lender, such purchase shall to that extent be rescinded
and each other Lender shall repay to the purchasing Lender the purchase
price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount
28
of such paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Company agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of
set-off, but subject to SECTION 11.10) with respect to such
participation as fully as if such Lender were the direct creditor of
the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such
purchases or repayments.
(d) Any amount that would be applied to a contingent
obligation of the Company in respect of a Letter of Credit under CLAUSE
THIRD of SUBSECTION 2.13(B) shall be held by the Administrative Agent
as Cash Collateral hereunder. If such Letter of Credit is thereafter
drawn upon, the Administrative Agent shall pay the applicable Issuing
Lender an amount equal to the lesser of the amount of such drawing and
the amount of the funds so held as Cash Collateral for such Letter of
Credit. If and to the extent that such Letter of Credit expires or
terminates (or the maximum amount available for drawing thereunder is
reduced), the funds so held as Cash Collateral for such Letter of
Credit (or the portion thereof in excess of the maximum amount
available for drawing thereunder) shall be applied by the
Administrative Agent as set forth in SUBSECTION 2.13(A) or 2.13(B), as
applicable.
2.14 SWING LINE COMMITMENT. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to the Company on a
revolving basis (each such loan, a "Swing Line Loan") from time to time on any
Business Day during the period from the Effective Date to the Termination Date
in an aggregate principal amount at any one time outstanding not to exceed
$25,000,000; PROVIDED that after giving effect to any proposed Swing Line Loan,
the Total Outstandings shall not exceed the combined Commitments.
2.15 BORROWING PROCEDURES FOR SWING LINE LOANS. The Company shall
provide a Notice of Swing Line Loan or telephonic notice (followed by a
confirming Notice of Swing Line Loan) of a proposed Swing Line Loan to the
Administrative Agent and the Swing Line Lender not later than 12:00 noon
(Chicago time) on the proposed Borrowing Date. Each such notice shall be
effective upon receipt by the Administrative Agent and the Swing Line Lender and
shall specify the date and the principal amount of such Swing Line Loan. Unless
the Swing Line Lender has received written notice prior to 12:00 noon (Chicago
time) on the proposed Borrowing Date from the Administrative Agent or any Lender
that one or more of the conditions precedent set forth in ARTICLE V with respect
to such Swing Line Loan is not then satisfied, the Swing Line Lender shall pay
over the requested principal amount to the Company on the requested Borrowing
Date in immediately available funds. Each Swing Line Loan shall be made on a
Business Day and shall be in the amount of $1,000,000 or an integral multiple
thereof. The Swing Line Lender will promptly notify the Administrative Agent of
the making and amount of each Swing Line Loan.
29
2.16 PREPAYMENT OR REFUNDING OF SWING LINE LOANS.
(a) The Company may, at any time and from time to time, prepay
any Swing Line Loan in whole or in part, in an amount equal to
$1,000,000 or an integral multiple thereof. The Company shall deliver a
notice of prepayment in accordance with SECTION 11.2 to be received by
the Administrative Agent and the Swing Line Lender not later than 11:00
a.m. (Chicago time) on the Business Day of such prepayment, specifying
the date and amount of such prepayment. If such notice is given by the
Company, the payment amount specified in such notice shall be due and
payable on the date specified therein.
(b) The Swing Line Lender may, at any time in its sole and
absolute discretion, on behalf of the Company (which hereby irrevocably
directs the Swing Line Lender to act on its behalf), request each
Lender to make a Committed Loan in an amount equal to such Lender's Pro
Rata Share of the principal amount of the Swing Line Loans outstanding
on the date such notice is given. Unless any of the events described in
SUBSECTION 9.1(F) or (G) shall have occurred (in which event the
procedures of SECTION 2.17 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making of
Committed Loans are then satisfied or the aggregate amount of such
Committed Loans is not in the minimum or integral amount otherwise
required hereunder, each Lender shall make the proceeds of its
Committed Loan available to the Administrative Agent for the account of
the Swing Line Lender at the Administrative Agent's Payment Office
prior to 12:00 noon (Chicago time) in immediately available funds on
the Business Day next succeeding the date such notice is given. The
proceeds of such Committed Loans shall be immediately applied to repay
the outstanding Swing Line Loans. All Committed Loans made pursuant to
this SECTION 2.16 shall be Base Rate Committed Loans (but, subject to
the other provisions of this Agreement, may be converted to Offshore
Rate Loans).
2.17 PARTICIPATIONS IN SWING LINE LOANS.
(a) If an event described in SUBSECTION 9.1(F) or (G) exists
(or for any reason the Lenders may not make Committed Loans pursuant to
SECTION 2.16), each Lender will, upon notice from the Administrative
Agent, purchase from the Swing Line Lender (and the Swing Line Lender
will sell to each Lender) an undivided participation interest in all
outstanding Swing Line Loans in an amount equal to its Pro Rata Share
of the outstanding principal amount of the Swing Line Loans (and each
Lender will immediately transfer to the Administrative Agent, for the
account of the Swing Line Lender, in immediately available funds, the
amount of its participation).
(b) Whenever, at any time after the Swing Line Lender has
received payment for any Lender's participation interest in the Swing
Line Loans pursuant to SUBSECTION 2.17(A), the Swing Line Lender
receives any payment on account thereof, the Swing Line Lender will
distribute to the Administrative Agent for the account of such Lender
its participation interest in such amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during
which such Lender's participation interest was outstanding and funded)
in like funds as received; PROVIDED, HOWEVER, that in the event that
such payment received by the Swing Line Lender is required to be
returned, such Lender will return to the Administrative Agent for the
account of the Swing Line
30
Lender any portion thereof previously distributed by the Swing Line
Lender to it in like funds as such payment is required to be returned
by the Swing Line Lender.
2.18 PARTICIPATION OBLIGATIONS UNCONDITIONAL.
(a) Each Lender's obligation to make Committed Loans pursuant
to SECTION 2.16 and/or to purchase participation interests in Swing
Line Loans pursuant to SECTION 2.17 shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever, including (a)
any set-off, 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 an Event of Default or Unmatured Event of Default; (c)
any adverse change in the condition (financial or otherwise) of the
Company or any other Person; (d) any breach of this Agreement or any
other Loan Document by the Company or any other Person; (e) any
inability of the Company to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which any such
Loan is to be made or any participation interest therein is to be
purchased; or (f) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of SUBSECTION 2.18(A), no
Lender shall be required to make any Committed Loan to the Company to
refund a Swing Line Loan pursuant to SECTION 2.16 or to purchase a
participation interest in a Swing Line Loan pursuant to SECTION 2.17
if, prior to the making by the Swing Line Lender of such Swing Line
Loan, the Swing Line Lender received written notice from any Lender
specifying that such Lender believed in good faith that one or more of
the conditions precedent to the making of such Swing Line Loan were not
satisfied and, in fact, such conditions precedent were not satisfied at
the time of the making of such Swing Line Loan; provided that the
obligation of such Lender to make such Committed Loans and to purchase
such participation interests shall be reinstated upon the earlier to
occur of (i) the date on which such Lender notifies the Swing Line
Lender that its prior notice has been withdrawn and (ii) the date on
which all conditions precedent to the making of such Swing Line Loan
have been satisfied (or waived by the Required Lenders or all Lenders,
as applicable).
2.19 CONDITIONS TO SWING LINE LOANS. Notwithstanding any other
provision of this Agreement, the Swing Line Lender shall not be obligated to
make any Swing Line Loan if an Event of Default or Unmatured Event of Default
exists or would result therefrom.
ARTICLE III
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY.
(a) Subject to the terms and conditions set forth herein, (i)
each Issuing Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this ARTICLE III, (A) from time to time on
any Business Day during the period from the Effective Date to the date
which is seven Business Days prior to the Termination Date to Issue
31
standby Letters of Credit for the account of the Company, and to amend
or renew standby Letters of Credit previously issued by it, in
accordance with SUBSECTIONS 3.2(C) and 3.2(D), and (B) to honor
properly drawn drafts under the Letters of Credit issued by it; and
(ii) the Lenders severally agree to participate in standby Letters of
Credit Issued for the account of the Company; provided that no Issuing
Lender shall be obligated to Issue, and (subject to SECTION 3.2(b)) no
Lender shall be obligated to participate in, any Letter of Credit if as
of the date of Issuance of such Letter of Credit (the "Issuance Date")
(1) the Total Outstandings exceed the combined Commitments, (2) the
Effective Amount of all L/C Obligations would exceed the L/C Commitment
or (3) the participation of any Lender in the Effective Amount of all
L/C Obligations plus the participation of such Lender in the principal
amount of all outstanding Swing Line Loans plus the outstanding
principal amount of the Committed Loans of such Lender would exceed
such Lender's Commitment. Within the foregoing limits, and subject to
the other 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 which have expired or which have been drawn
upon and reimbursed.
(b) No Issuing Lender shall be under any obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain such Issuing Lender from Issuing
such Letter of Credit, or any Requirement of Law applicable to
such Issuing Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority
with jurisdiction over such Issuing Lender shall prohibit, or
request that such Issuing Lender refrain from, the Issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon such Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on
the Effective Date and which such Issuing Lender in good faith
deems material to it (it being understood that the applicable
Issuing Lender shall promptly notify the Company and the
Administrative Agent of any of the foregoing events or
circumstances);
(ii) such Issuing Lender has received
written notice from any Lender, the Administrative Agent or
the Company, on or prior to the Business Day immediately
preceding the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions
contained in ARTICLE V is not then satisfied;
(iii) the expiry date of such requested
Letter of Credit is after the earlier of the seventh Business
Day prior to the Termination Date or the eighteen month
anniversary of its issuance (subject to periodic extensions
32
for periods not to exceed one year), unless all of the Lenders
have approved such expiry date in writing; or
(iv) such Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
acceptable to such Issuing Lender, or the Issuance of a Letter
of Credit would violate any applicable policies of such
Issuing Lender;
(v) such Letter of Credit is denominated in
a currency other than Dollars, or, in the case of BofA only,
in a currency other than Dollars or Canadian Dollars.
(c) On the terms and conditions set forth herein, BofA may
Issue upon request and for the account of the Company a standby
Canadian L/C. For purposes of determining L/C Obligations, any Canadian
L/C shall be recorded in the Administrative Agent's account in Dollars
based on the Dollar Equivalent Amount on the date of issuance of such
Canadian L/C; PROVIDED, HOWEVER, that the Administrative Agent shall
determine the Dollar Equivalent Amount of any Canadian L/C on the
Valuation Date for the purpose of determining L/C Obligations. Any draw
on a Canadian L/C shall be repaid in Canadian Dollars in an amount
equal to the amount of the draw in Canadian Dollars. If at any time
there is a drawing under a Canadian L/C and the Company shall not
promptly reimburse such drawing as provided in SECTION 3.3, the Company
shall be obligated to immediately repay to the Administrative Agent for
the benefit of the Lenders an amount in Dollars equal to the Dollar
Equivalent Amount of the Canadian Dollars paid by BofA to the
beneficiary of such Canadian L/C on the date of such drawing.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Company delivered to the
applicable Issuing Lender (with a copy to the Administrative Agent) in
the form of a L/C Application, appropriately completed and signed by a
Responsible Officer of the Company. Such L/C Application must be
received by the applicable Issuing Lender and the Administrative Agent
not later than 11:00 a.m. at least two Business Days (or such later
date and time as the applicable Issuing Lender may agree in a
particular instance in its 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 L/C
Application shall specify in form and detail satisfactory to the
applicable Issuing Lender: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount 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; and (G) such other matters as the applicable Issuing Lender
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such L/C Application shall specify in
form and detail satisfactory to the applicable Issuing Lender (A) the
Letter of Credit to be amended; (B) the proposed date of
33
amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the applicable
Issuing Lender may require.
(b) Promptly after receipt of any L/C Application or L/C
Amendment Application, the applicable Issuing Lender will confirm with
the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such L/C Application or L/C
Amendment Application from the Company, and, if not, the applicable
Issuing Lender will provide the Administrative Agent with a copy
thereof. Upon receipt by the applicable Issuing Lender of confirmation
from the Administrative Agent that the requested issuance or amendment
is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the applicable Issuing Lender shall, on
the requested date, issue a Letter of Credit for the account of the
Company or enter into the applicable amendment, as the case may be, in
each case in accordance with such Issuing Lender'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
unconditionally agrees to, purchase from the applicable Issuing Lender
a risk participation in such Letter of Credit in an amount equal to the
product of such Lender's Pro Rata Share times the amount of such Letter
of Credit.
(c) If the Company so requests in any applicable L/C
Application, the applicable Issuing Lender may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an "Auto-Renewal Letter of
Credit"); PROVIDED that any such Auto-Renewal Letter of Credit must
permit the applicable Issuing Lender to prevent any such renewal 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 "Nonrenewal 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 applicable
Issuing Lender, the Company shall not be required to make a specific
request to the applicable Issuing Lender for any such renewal. Once an
Auto-Renewal Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the applicable Issuing
Lender to permit the renewal of such Letter of Credit at any time to an
expiry date not later than seven Business Days prior to the Termination
Date; provided, however, that the applicable Issuing Lender shall not
permit any such renewal if (A) the applicable Issuing Lender has
determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason
of the provisions of SECTION 3.1(B) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before
the day that is two Business Days before the Nonrenewal Notice Date (1)
from the Administrative Agent that the Required Lenders have elected
not to permit such renewal or (2) from the Administrative Agent, any
Lender or the Company that one or more of the applicable conditions
specified in SECTION 5.2 is not then satisfied.
(d) 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 applicable Issuing Lender
will also deliver to the Company and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
34
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the applicable
Issuing Lender shall notify the Company and the Administrative Agent
thereof. Not later than 11:00 a.m. on the date of any payment by the
applicable Issuing Lender under a Letter of Credit (each such date, an
"HONOR DATE"), the Company shall reimburse the applicable Issuing
Lender through the Administrative Agent in an amount equal to the
amount of such drawing. If the Company fails to so reimburse the
applicable Issuing Lender by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount of
such Lender's Pro Rata Share thereof. In such event, the Company shall
be deemed to have requested a Committed Borrowing of Base Rate
Committed 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 2.3 for the principal amount of Base Rate
Committed Loans, but subject to the amount of the unutilized portion of
the combined Commitments and the conditions set forth in SECTION 5.2
(other than the delivery of a Notice of Committed Borrowing). Any
notice given by the applicable Issuing Lender or the Administrative
Agent pursuant to this SECTION 3.03(A) 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
(b) Each Lender (including the Lender acting as applicable
Issuing Lender) shall upon any notice pursuant to SECTION 3.3(A) make
funds available to the Administrative Agent for the account of the
applicable Issuing Lender at the Administrative Agent's Payment Office
in an amount equal to its Pro Rata Share 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 3.3(C), 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 applicable Issuing Lender.
(c) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Committed Loans
because the conditions set forth in SECTION 5.2 cannot be satisfied or
for any other reason, the Company shall be deemed to have incurred from
the applicable Issuing Lender 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 rate set forth in SECTION 2.8(C). In such event,
each Lender's payment to the Administrative Agent for the account of
the applicable Issuing Lender pursuant to SECTION 3.3(B) 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 ARTICLE III.
(d) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this SECTION 3.3 to reimburse the applicable Issuing Lender
for any amount drawn under
35
any Letter of Credit, interest in respect of such Lender's Pro Rata
Share of such amount shall be solely for the account of the applicable
Issuing Lender.
(e) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the applicable Issuing Lender for amounts drawn
under Letters of Credit, as contemplated by this SECTION 3.3, shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the
applicable Issuing Lender, the Company or any other Person for any
reason whatsoever; (B) the occurrence or continuance of an Unmatured
Event of 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 3.3 is subject to the conditions set forth in SECTION 5.2
(other than delivery by the Company of a Notice of Committed
Borrowing). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Company to reimburse the applicable
Issuing Lender for the amount of any payment made by the applicable
Issuing Lender under any Letter of Credit, together with interest as
provided herein.
(f) If any Lender fails to make available to the
Administrative Agent for the account of the applicable Issuing Lender
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this SECTION 3.3 by the time specified in SECTION 3.3(B),
the applicable Issuing 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 applicable Issuing Lender at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of the
applicable Issuing Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
subsection (f) shall be conclusive absent manifest error.
3.4 REPAYMENT OF PARTICIPATIONS.
(a) At any time after the applicable Issuing Lender 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 3.3, if the Administrative Agent receives for the account of
the applicable Issuing Lender 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 Pro Rata Share 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 the
same funds as those received by the Administrative Agent.
(b) If any payment received by the Administrative Agent for
the account of the applicable Issuing Lender pursuant to SECTION 3.3(A)
is required to be returned under any of the circumstances described in
SECTION 11.6 (including pursuant to any settlement entered into by the
applicable Issuing Lender in its discretion), each Lender shall pay to
the Administrative Agent for the account of the applicable Issuing
Lender its Pro Rata
36
Share 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 Federal Funds
Rate from time to time in effect.
3.5 ROLE OF THE ISSUING LENDERS. Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the applicable Issuing
Lender 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 applicable Issuing Lender, any Agent-Related Person nor
any of the respective correspondents, participants or assignees of the
applicable Issuing Lender 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 L/C Application. 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 applicable Issuing
Lender, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the applicable Issuing Lender, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
SECTION 3.6; PROVIDED, HOWEVER, that anything in such clauses to the contrary
notwithstanding, the Company may have a claim against the applicable Issuing
Lender, and the applicable Issuing Lender 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 applicable Issuing Lender's willful misconduct or gross negligence or the
Applicable Issuing Lender'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 applicable
Issuing Lender 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 applicable Issuing Lender 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.
3.6 OBLIGATIONS ABSOLUTE. The obligation of the Company to reimburse
the applicable Issuing Lender 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 agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Company may have at any time against any
beneficiary or any transferee of such
37
Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the applicable Issuing Lender 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 applicable Issuing Lender 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 applicable Issuing Lender 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 insolvency law; or
(v) 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.
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 applicable Issuing Lender. The Company shall be
conclusively deemed to have waived any such claim against the applicable Issuing
Lender and its correspondents unless such notice is given as aforesaid.
3.7 CASH COLLATERAL PLEDGE. Upon the request of the Administrative
Agent, (i) if the applicable Issuing Lender has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the date which is seven Business Days prior to
the Termination Date, any Letter of Credit may for any reason remain outstanding
and partially or wholly undrawn, the Company shall immediately Cash
Collateralize the then outstanding amount of all L/C Obligations (in an amount
equal to such outstanding amount determined as of the date of such L/C Borrowing
or the date which is seven Business Days prior to the Termination Date, as the
case may be). For purposes hereof, "Cash Collateralize" means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the
applicable Issuing Lender and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent and the
applicable Issuing Lender (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 Issuing
Lenders and the Lenders, a security interest in all such cash, deposit accounts
38
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at BofA.
3.8 LETTER OF CREDIT FEES.
(a) The Company shall pay to the Administrative Agent for the
account of each Lender a letter of credit fee with respect to each
Letter of Credit equal to the L/C Fee Rate (plus, upon notice from the
Administrative Agent (acting at the request or with the consent of the
Required Lenders) during the existence of an Event of Default, and for
so long as such Event of Default shall continue, 2%) per annum of the
average daily maximum amount available to be drawn on such Letter of
Credit or in the case of a Canadian L/C the Dollar Equivalent Amount of
such average daily maximum amount, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter and on the
Termination Date (or such later date on which such Letter of Credit
shall expire or be fully drawn).
(b) The letter of credit fees payable under SUBSECTION 3.8(A)
shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to occur after
the Effective Date, through the Termination Date (or such later date
upon which all outstanding Letters of Credit shall expire or be fully
drawn), with the final payment to be made on the Termination Date (or
such later date).
(c) The Company shall pay to each Issuing Lender a letter of
credit fronting fee of 1/8 of 1% per annum (0.125%) of the average
daily maximum amount available to be drawn on each outstanding Letter
of Credit issued by such Issuing Lender or in the case of a Canadian
L/C the Dollar Equivalent Amount of such average daily maximum amount.
Such fronting fee shall be due and payable in full by the Company to
the applicable Issuing Lenders, with respect to each Letter of Credit,
quarterly in advance on the last Business Day of each calendar quarter
with respect to each Letter of Credit, commencing on the first such
quarterly date to occur following the date of issuance (or renewal) of
such Letter of Credit through the Termination Date (or such later date
upon which such outstanding Letter of Credit shall expire or be fully
drawn), with the final payment to be made on the Termination Date (or
such later date).
(d) The Company shall pay to each Issuing Lender from time to
time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such Issuing
Lender relating to letters of credit as from time to time in effect.
3.9 APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly agreed
by the applicable Issuing Lender 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 "International Standby Practices 1998" published
by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of
39
issuance (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each commercial Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES.
(a) Any and all payments by the Company to each Lender or the
Administrative Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or withholding
for, any Taxes. In addition, the Company shall pay all Other Taxes and
Further Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Lender or the Administrative Agent,
then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings applicable
to additional sums payable under this Section), such Lender or
the Administrative Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions
and withholdings; and
(iii) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(c) The Company agrees to indemnify and hold harmless each
Lender and the Administrative Agent for the full amount of Taxes, Other
Taxes and Further Taxes in the amount that such Lender specifies as
necessary to preserve the after-tax yield such Lender would have
received if such Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30
days after the date such Lender or the Administrative Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by the
Company of any Taxes, Other Taxes or Further Taxes, the Company shall
furnish each applicable Lender and the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to such Lender and the
Administrative Agent.
40
(e) Notwithstanding the foregoing provisions of this SECTION
4.1, (i) if any Lender fails to notify the Company of any event or
circumstance which will entitle such Lender to compensation pursuant to
this SECTION 4.1 within 60 days after such Lender obtains knowledge of
such event or circumstance, then such Lender shall not be entitled to
compensation from the Company for any amount arising prior to the date
which is 60 days before the date on which such Lender notifies the
Company of such event or circumstance; and (ii) the Company shall not
be required to pay an additional amount to, or to indemnify, any Lender
pursuant to this SECTION 4.1 to the extent that (x) the obligation to
withhold or pay such amount existed on the Initial Date (as defined
below) or (y) the obligation to withhold or pay such amount would not
have arisen but for the failure of such Lender to comply with the
provisions of SECTION 10.10 of this Agreement. For purposes of CLAUSE
(II) of the foregoing sentence "Initial Date" means (A) in the case of
any Lender that is a signatory hereto, the date of this Agreement, (B)
in the case of any Person which subsequently becomes a Lender
hereunder, the date of the applicable Assignment and Acceptance, and
(C) in the case of any Participant, the date on which it becomes a
Participant.
4.2 ILLEGALITY.
(a) If any Lender reasonably determines that the introduction
of any Requirement of Law, or any change in any Requirement of Law, or
in the interpretation or administration of any Requirement of Law, has
made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Offshore Rate Loans, then, on notice
thereof by such Lender to the Company through the Administrative Agent,
any obligation of such Lender to make Offshore 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.
(b) If a Lender reasonably determines that it is unlawful to
maintain any Offshore Rate Loan, the Company shall, upon its receipt of
notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Loan of such
Lender together with interest accrued thereon and amounts required
under SECTION 4.4, either on the last day of the Interest Period
thereof, if such Lender may lawfully continue to maintain such Offshore
Rate Loan to such day, or immediately, if such Lender may not lawfully
continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with
such prepayment, the Company shall borrow from the affected Lender, in
the amount of such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, all Loans
which would otherwise be made by such Lender as Offshore Rate Loans
shall be instead Base Rate Committed Loans.
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4.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Lender reasonably determines that, due to either
(i) the introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate) after the date hereof in or in the
interpretation of any law or regulation or (ii) compliance by such
Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law)
adopted, issued or delivered after the date hereof, there shall be any
increase in the cost to such Lender (excluding any Taxes, Other Taxes,
Further Taxes or taxes imposed on or measured by the net income of such
Lender) of agreeing to make or making, funding or maintaining any
Offshore Rate Loan or participating in any Letter of Credit, or, in the
case of an Issuing Lender, any increase in the cost to such Issuing
Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or of agreeing to make or making, funding or maintaining any
unpaid drawing under any Letter of Credit, then the Company shall be
liable for, and shall from time to time, upon demand (with a copy of
such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased cost.
(b) If any Lender shall have reasonably determined that (i)
the introduction after the date hereof of any Capital Adequacy
Regulation, (ii) any change after the date hereof in any Capital
Adequacy Regulation, (iii) any change after the date hereof in the
interpretation or administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by such
Lender (or its Lending Office) or any corporation controlling such
Lender with any Capital Adequacy Regulation (excluding any Capital
Adequacy Regulation as in effect on the date hereof) affects or would
affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and (taking into
consideration such Lender's or such corporation's policies with respect
to capital adequacy and such Lender's desired return on capital)
reasonably determines that the amount of such capital is increased as a
consequence of its Commitment, Loans or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Administrative Agent, the Company shall pay to such Lender, from time
to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
(c) Notwithstanding the foregoing provisions of this SECTION
4.3, if any Lender fails to notify the Company of any event or
circumstance which will entitle such Lender to compensation pursuant to
this SECTION 4.3 within 60 days after such Lender obtains knowledge of
such event or circumstance, then such Lender shall not be entitled to
compensation from the Company for any amount arising prior to the date
which is 60 days before the date on which such Lender notifies the
Company of such event or circumstance.
4.4 FUNDING LOSSES. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
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(a) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a
Notice of Committed Borrowing or a Notice of Conversion/Continuation;
(b) the failure of the Company to make any prepayment in
accordance with any notice delivered under SECTION 2.6;
(c) the prepayment (including after acceleration thereof) of
an Offshore Rate Loan on a day that is not the last day of the relevant
Interest Period; or
(d) the automatic conversion under SUBSECTION 2.4(A) of any
Offshore Rate Loan to a Base Rate Committed Loan on a day that is not
the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under SUBSECTION 4.3(A), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 INABILITY TO DETERMINE RATES. If (a) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or (b) the Required Lenders determine that the
Offshore Rate applicable pursuant to SUBSECTION 2.8(A) for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders in the case of CLAUSE (B)) revokes such
notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Committed Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Committed Loans instead of
Offshore Rate Loan.
4.6 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Lender hereunder and the manner in which such amount has
been calculated, and such certificate shall be conclusive and binding on the
Company in the absence of manifest error.
43
4.7 MITIGATION. Each Lender shall promptly notify the Company and the
Administrative Agent of any event of which it has knowledge which will result
in, and will use reasonable commercial efforts available to it (and not, in such
Lender's good faith judgment, otherwise disadvantageous to such Lender) to
mitigate or avoid, (i) any obligation of the Company to pay any amount pursuant
to SECTION 4.1 or 4.3 or (ii) the occurrence of any circumstance of the nature
described in SECTION 4.2 or 4.5. Without limiting the foregoing, each Lender
will designate a different Lending Office if such designation will avoid (or
reduce the cost to the Company of) any event described in CLAUSE (I) or (II) of
the preceding sentence and such designation will not, in such Lender's good
faith judgment, be otherwise disadvantageous to such Lender.
4.8 SUBSTITUTION OF LENDERS. Upon the receipt by the Company from any
Lender of a claim for compensation under SECTION 4.1 or 4.3 or a notice of the
type described in SECTION 4.2, the Company may: (i) designate a replacement bank
or financial institution satisfactory to the Company (a "Replacement Lender") to
acquire and assume all or a ratable part of all of such affected Lender's Loans
and Commitment; and/or (ii) request one or more of the other Lenders to acquire
and assume all or part of such affected Lender's Loans and Commitment. Any
designation of a Replacement Lender under CLAUSE (I) shall be subject to the
prior written consent of the Administrative Agent (which consent shall not be
unreasonably withheld).
4.9 SURVIVAL. The agreements and obligations of the Company in this
ARTICLE IV shall survive the termination of this Agreement and the payment of
all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS TO EFFECTIVENESS. This Agreement shall become effective
on the date (the "Effective Date") on which the Administrative Agent shall have
received (i) evidence satisfactory to the Administrative Agent that the Company
has paid all fees and other amounts then payable under SUBSECTION 2.9(A) and
(ii) all of the following, in form and substance satisfactory to the
Administrative Agent and each Lender, and (except for the Notes) in sufficient
copies for each Lender:
(a) AGREEMENT AND NOTES. This Agreement and the Notes executed
by each party hereto and thereto.
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board
of directors of the Company authorizing the execution and
delivery of the Loan Documents and the consummation of the
transactions contemplated hereby, certified as of the
Effective Date by the Secretary or an Assistant Secretary of
such Person; and
(ii) a certificate of the Secretary or
Assistant Secretary of the Company certifying the names and
true signatures of the officers, employees or authorized
agents of the Company authorized to execute and deliver the
Loan Documents and to deliver Notices of Borrowing, Notices of
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Conversion/Continuation, Notices of Swing Line Loans,
Compliance Certificates, L/C Applications, L/C Amendment
Applications and similar documents.
(c) ORGANIZATION DOCUMENTS. The articles or certificate of
incorporation and the bylaws of the Company as in effect on the
Effective Date, certified by the Secretary or Assistant Secretary of
the Company as of the Effective Date.
(d) LEGAL OPINIONS. An opinion of legal counsel to the
Company, substantially in the form of EXHIBIT E.
(e) PAYMENT OF FEES. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable hereunder on the Effective Date, together with Attorney Costs
of BofA to the extent invoiced prior to or on the Effective Date, plus
such additional amounts of Attorney Costs as shall constitute BofA's
reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and
BofA), including any such costs, fees and expenses arising under or
referenced in SECTIONS 2.9 and 11.4.
(f) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Effective Date, stating that:
(i) the representations and warranties
contained in ARTICLE VI are true and correct on and as of such
date, as though made on and as of such date;
(ii) no Event of Default or Unmatured Event
of Default exists or would result from the effectiveness of
this Agreement;
(iii) since December 31, 2001, there has
been no event or circumstance that has had or could be
reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect;
(iv) since December 31, 2001, there has not
occurred (1) a material change in the operations, assets,
financial affairs or ownership structure of the Company, or
(2) a Material Adverse Effect on the business, assets,
liabilities (actual or contingent), operations or condition
(financial or otherwise) of the Company and its Subsidiaries
taken as a whole or in the facts and information regarding
such entities as represented to date; and
(v) there is no action, suit, investigation
or proceeding pending or threatened in any court or before any
arbitrator or governmental authority that purports (1) to
materially and adversely affect the Company or its
Subsidiaries, or (2) to affect any transaction contemplated
hereby or the ability of the Company to perform its
obligations under this Agreement or the Short Term Credit
Agreement.
45
(g) FINANCIAL STATEMENTS. Receipt and satisfactory review by
the Administrative Agent of the consolidated financial statements of
the Company and its Subsidiaries for the fiscal years ended 1999, 2000
and 2001, including balance sheet, income, changes in shareholders'
equity and cash flow statements audited by Arthur Andersen LLP and
prepared in conformity with GAAP and such other financial information
as the Administrative Agent may request.
(h) NOTICES. Notice of Committed Borrowing or a Notice of
Swing Line Loan, as applicable.
(i) INFORMATION. Receipt and review, with results satisfactory
to the Administrative Agent and its counsel, of information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, environmental matters, contingent
liabilities and management of the Company and its Subsidiaries.
(j) EXISTING CREDIT AGREEMENTS. Evidence that the Existing
Credit Agreements have been or concurrently with the Effective Date are
being terminated.
(k) OTHER DOCUMENTS. Such other approvals, opinions, documents
or materials as the Administrative Agent or any Lender may reasonably
request.
5.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to make any Loan to be made by it (including the obligation of the Swing Line
Lender to make any Swing Line Loan) and the obligation of any Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. The Administrative Agent shall have
received a Notice of Committed Borrowing or the Swing Line Lender and
the Administrative Agent shall have received a Notice of Swing Line
Loan or, in the case of the Issuance of any Letter of Credit, the
applicable Issuing Lender and the Administrative Agent shall have
received an L/C Application or L/C Amendment Application, as required
under SECTION 3.2.
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI shall be true and correct
in all material respects on and of such Borrowing Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date or
Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date).
(c) NO EXISTING DEFAULT. No Event of Default or Unmatured
Event of Default shall exist or shall result from such Borrowing, Swing
Line Loan or Issuance.
Each Notice of Committed Borrowing, Notice of Swing Line Loan, L/C Application
and L/C Amendment Application submitted by the Company hereunder shall
constitute a representation
46
and warranty by the Company that, as of the date of each such notice and as of
the relevant Borrowing Date or Issuance Date, as applicable, the conditions in
this SECTION 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.1 CORPORATE EXISTENCE AND POWER. The Company and each of its
Subsidiaries:
(a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to
carry on its business and (ii) to execute, deliver and perform its
obligations under the Loan Documents to which it is a party;
(c) is duly qualified to do business in each jurisdiction
where its ownership, lease or operation of property or the conduct of
its business requires such qualification; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in SUBCLAUSE (B)(I), CLAUSE (C) or CLAUSE (D),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by the Company of each Loan Document to which such Person is
party 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, any document evidencing any material
Contractual Obligation to which such Person or any of its Subsidiaries
is a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or any of its Subsidiaries or any of its
or their property is subject; or
(c) violate any Requirement of Law.
6.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority (other than any of the foregoing which has been obtained or made and
is in full force and effect) is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
the Agreement or any other Loan Document.
47
6.4 BINDING EFFECT. This Agreement and each other Loan Document
constitute the legal, valid and binding obligations of the Company, to the
extent such Person is a party thereto, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
6.5 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened, at law,
in equity, in arbitration or before any Governmental Authority, against the
Company or any Subsidiary or any of their respective properties; (a) which
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or (b) as to which there
exists a reasonable likelihood of an adverse determination, which determination
would reasonably be expected to have a material adverse effect on the ability of
the Company to pay and perform the Obligations. No injunction, writ, temporary
restraining order or other order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the execution,
delivery or performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.6 NO DEFAULT. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company. As
of the Effective Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.
6.7 ERISA COMPLIANCE. Except as specifically disclosed in SCHEDULE 6.7:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law (or, in the case of an Acquired Plan, can be brought into such
compliance without any material fine, penalty or other liability).
Except for Acquired Plans with respect to which the failure to have
received a qualification letter would not result in any material fine,
penalty or other liability, each Plan which is intended to qualify
under Section 401(a) of the Code has received a favorable determination
letter from the IRS (or will be submitted for a determination letter
within the applicable remedial amendment period), and to the best
knowledge of the Company, nothing has occurred which would cause the
loss of such qualification. The Company and each ERISA Affiliate has
made all required contributions to any Plan subject to Section 412 of
the Code (except for contributions to Acquired Plans not made prior to
the respective Plan Acquisition Dates and which do not in the aggregate
exceed $1,000,000 for any Acquired Plan), 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 Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
48
responsibility rules with respect to any Plan which 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) no contribution failure has occurred with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA; (iii) no Pension Plan has any Unfunded Pension Liability; (iv)
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); (v) 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 Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (vi) neither the
Company nor any ERISA Affiliate has engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans will
be used solely for the purposes set forth in and permitted by SECTION 7.12 and
SECTION 8.8. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 TITLE TO PROPERTIES. The Company and each Subsidiary have 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 their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Effective Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
6.10 TAXES. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal 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 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.
6.11 FINANCIAL CONDITION.
(a) The audited consolidated financial statements of the
Company and its Subsidiaries dated December 31, 2001, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal year ended on that date, and (2) the
unaudited interim consolidated financial statements of the Company and
its Subsidiaries dated March 31, 2002, and the related consolidated
statements of income or operations, shareholders' equity and cash flows
for the fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the periods covered thereby,
except as otherwise expressly
49
noted therein (subject, in the case of the unaudited interim
statements, to the absence of footnotes and to ordinary, good
faith year-end audit adjustments);
(ii) fairly present (subject, in the case of
the unaudited interim statements, to ordinary, good faith
year-end audit adjustments) the financial condition of the
Company and its Subsidiaries as of the dates thereof and the
results of operations for the periods covered thereby; and
(iii) show all material indebtedness and
other liabilities, absolute or contingent, of the Company and
its consolidated Subsidiaries as of the dates thereof,
including liabilities for taxes and material Contingent
Obligations.
(b) Since December 31, 2001, there has been no Material
Adverse Effect.
6.12 ENVIRONMENTAL MATTERS. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in SCHEDULE 6.12, such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.13 REGULATED ENTITIES. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 NO BURDENSOME RESTRICTIONS. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
6.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the material patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person, except to the extent failure to own,
license or otherwise have the right to use any such item, or any such conflict,
could not reasonably be expected to have a Material Adverse Effect. 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, and which is
material to the business or operations of the Company and its Subsidiaries,
infringes upon any rights held by any other Person (excluding infringements
which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect).
6.16 SUBSIDIARIES. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in PART (A) of SCHEDULE
50
6.16 and has no equity investments in any other corporation or entity other than
those specifically disclosed in PART (B) of SCHEDULE 6.16.
6.17 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies (or are
self-insured) in such amounts, 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 such Subsidiary operates.
6.18 SOLVENCY. The Company is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
6.19 FULL DISCLOSURE. The representations and warranties made by the
Company and its Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and the statements
contained in any exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the Loan Documents,
taken as a whole, do not contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading in any material respect as of the time when made or
delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 FINANCIAL STATEMENTS. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than 120 days after
the end of each fiscal year, a copy of the audited consolidated balance
sheet of the Company and its Subsidiaries as at the end of such year
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
and accompanied by the opinion of Arthur Andersen LLP or another
nationally-recognized independent public accounting firm ("Independent
Auditor"), which opinion (i) shall state that such consolidated
financial statements present fairly the Company's consolidated
financial position for the periods indicated in conformity with GAAP
and (ii) shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material portion
of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 60 days after the
end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ending June 30, 2002), a copy of
the unaudited consolidated balance sheet of the Company and its
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Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting,
in accordance with GAAP (subject to the absence of footnotes and to
ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Company and its
Subsidiaries as of such date and for such period.
7.2 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in SUBSECTIONS 7.1(A) and (B), a Compliance Certificate
executed by a Responsible Officer;
(b) promptly after their becoming available, copies of all
financial statements and reports that the Company sends to its
shareholders, and copies of all financial statements and regular,
periodic or special reports (including Forms 10K, 10Q and 8K) that the
Company or any Subsidiary may make to, or file with, the SEC; and
(c) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
Documents required to be delivered pursuant to SECTION 7.1(A) or (B) or
SECTION 7.2(B) (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 earlier of (i) the date
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
11.2; and (ii) the date on which such documents are posted on the Company's
behalf on IntraLinks/IntraAgency or another relevant 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
(which may be by facsimile or electronic mail) the Administrative Agent and each
Lender 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 7.2(A) to the Administrative Agent (with sufficient copies
for each Lender). 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.
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7.3 NOTICES. The Company shall promptly (or, in the case of any event
described in CLAUSE (C)(II) below, not less than 10 days prior to the occurrence
of such event) notify the Administrative Agent and each Lender:
(a) of the occurrence of any Event of Default or Unmatured
Event of Default known to the Company;
(b) of any matter that has resulted or is reasonably 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, investigation,
proceeding or suspension between the Company or any Subsidiary
and any Governmental Authority; 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) of the occurrence of any of the following events known to
the Company which affect the Company or any ERISA Affiliate, and
deliver to the Administrative Agent and each Lender a copy of any
notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the
Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to
a Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA;
(iii) a material increase in the Unfunded
Pension Liability of any Pension Plan;
(iv) the adoption of, or the commencement of
contributions to, any Pension Plan by the Company or any ERISA
Affiliate; or
(v) the adoption of any amendment to a
Pension Plan if such amendment results in a material increase
in contributions or Unfunded Pension Liability;
(d) of any material change in accounting policies or financial
reporting practices by the Company and its consolidated Subsidiaries;
and
(e) promptly upon the issuance thereof, deliver to the
Administrative Agent notice of any announcement by Moody's or S&P (i)
of any change in any Rating or (ii) that any Rating will be put on a
"negative outlook" or "negative credit watch."
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Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto. Each notice under SUBSECTION
7.3(A) shall describe with particularity any and all clauses or provisions of
this Agreement or any other Loan Document that have been breached or violated.
7.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company shall, and
shall cause each Subsidiary to (provided that nothing in this SECTION 7.4 shall
prevent the voluntary liquidation, dissolution or winding up, not under any
bankruptcy or insolvency law, of any Subsidiary so long as no Event of Default
exists and no Event of Default or Unmatured Event of Default will result
therefrom):
(a) preserve and maintain in full force and effect its
existence and good standing under the laws of its jurisdiction of
organization;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business
(except in connection with transactions permitted by SECTION 8.4 and
sales of assets permitted by SECTION 8.3);
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) 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.
7.5 MAINTENANCE OF PROPERTY. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
7.6 INSURANCE. The Company shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers (or pursuant
to a self-insurance program), 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 as are customarily carried under similar circumstances by such other
Persons.
7.7 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause each
Subsidiary to, pay and discharge, as the same shall become due and payable, all
their respective material obligations and liabilities, including: (a) all
material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets and (b) all material claims which, if unpaid, would
by law become a Lien upon its property, UNLESS, in each case, the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary.
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7.8 COMPLIANCE WITH LAWS. The Company shall, and shall cause each
Subsidiary to, comply with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor
Standards Act) the non-compliance with which might have a Material Adverse
Effect.
7.9 COMPLIANCE WITH ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code, it being understood that any
non-compliance with CLAUSE (A), (B) or (C) with respect to an Acquired Plan
existing on the Plan Acquisition Date for such Acquired Plan shall not
constitute a violation of this SECTION 7.9 so long as (i) the Company is
diligently proceeding to remedy such non-compliance and (ii) such non-compliance
will not result in any material fine, penalty or other liability.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent, any Lender or their respective
representatives (in each case at such Person's own expense unless an Event of
Default exists), upon reasonable notice at any reasonable time during normal
business hours and from time to time at the request of the Administrative Agent
or the relevant Lender, to visit and inspect the properties of the Company or
any Subsidiary (and, if (i) any Unmatured Event of Default exists and has been
continuing for 15 days or (ii) any Event of Default exists, to make copies or
abstracts of their respective corporate, financial and operating records), and
to examine the properties and books and records of the Company and its
Subsidiaries and to discuss the affairs, finances and accounts of the Company or
any Subsidiary with the appropriate officers, employees or authorized agents of
the Company or such Subsidiary.
7.11 ENVIRONMENTAL LAWS. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all material Environmental Laws. Without limiting the
foregoing, the Company shall, and shall cause each Subsidiary to, (i) maintain
all material operating permits for all landfills now owned or hereafter
acquired; and (ii) dispose of hazardous waste only at licensed disposal
facilities operating, to the best of the Company's or the applicable
Subsidiary's knowledge after reasonable inquiry, in material compliance with all
material Environmental Laws.
7.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans
(i) to repay the Indebtedness of the Company under, and to terminate, the
Existing Credit Agreements, and (ii) for working capital, capital expenditures
and other general corporate purposes (including commercial paper backup and
Acquisitions) not in contravention of any Requirement of Law or of any Loan
Document; PROVIDED that the Company shall not use the proceeds of any Loan to
make any Acquisition if the Board of Directors of the Person to be acquired has
not approved such Acquisition.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 FINANCIAL CONDITION COVENANTS.
(a) MINIMUM CONSOLIDATED SHAREHOLDERS' EQUITY. The Company
shall not permit its Consolidated Shareholders' Equity as of the last
day of any fiscal quarter to be less than the sum of (i) 85% of
Consolidated Shareholders' Equity as of December 31, 2001 PLUS (ii) 50%
of Consolidated Net Income (with no deduction for net losses) for each
fiscal quarter ending after December 31, 2001 PLUS (iii) 100% of the
net proceeds of equity issuances after December 31, 2001.
(b) MAXIMUM TOTAL DEBT TO EBITDA RATIO. The Company shall not
permit, as of the last day of any fiscal quarter (beginning with the
fiscal quarter ending June 30, 2002), the Total Debt to EBITDA Ratio
for the Computation Period ending on such day to be greater than 3.25
to 1.
8.2 LIMITATION ON LIENS. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on the Effective Date and set forth in
SCHEDULE 8.2, and any extension, renewal or replacement of any such
Lien so long as the principal amount secured thereby is not increased
and the scope of the property subject to such Lien is not extended;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently pursued
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP;
(d) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
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(e) Liens on the property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii)
surety bonds (excluding appeal bonds and other bonds posted in
connection with court proceedings or judgments) and (iii) other
non-delinquent obligations of a like nature in each case incurred in
the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(f) Liens consisting of judgment or judicial attachment liens
and liens securing contingent obligations on appeal bonds and other
bonds posted in connection with court proceedings or judgments,
provided that (i) in the case of judgment and judicial attachment
liens, the enforcement of such Liens is effectively stayed and (ii) all
such liens in the aggregate at any time outstanding for the Company and
its Subsidiaries do not exceed $50,000,000;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
individually or in the aggregate, do not materially detract from the
value of the property subject thereto or materially interfere with the
ordinary conduct of the businesses of the Company and its Subsidiaries;
(h) Liens securing obligations in respect of Capital Leases
and purchase money financings on assets subject to such leases or
financings, provided that such Capital Leases and purchase money
financings are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; PROVIDED that (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB, and (ii) such deposit
account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution; and
(j) other Liens, in addition to those permitted by CLAUSES (A)
through (H), securing Indebtedness or arising in connection with
Securitization Transactions; PROVIDED that the sum (without
duplication) of all such Indebtedness, plus the aggregate investment or
claim held at any time by all purchasers, assignees or other
transferees of (or of interests in) receivables and other rights to
payment in all Securitization Transactions, shall not at any time
exceed in the aggregate 20% of Consolidated Tangible Assets.
8.3 DISPOSITION OF ASSETS. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing (including any
sale-leaseback), except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
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(b) the sale, assignment or other transfer of accounts
receivable, lease receivables or other rights to payment pursuant to
any Securitization Transaction; and
(c) dispositions not otherwise permitted hereunder which are
made for fair market value; provided that (i) at the time of any such
disposition, no Event of Default shall exist or shall result from such
disposition and (ii) the aggregate value of all assets so disposed of
by the Company and its Subsidiaries in any one-year period (calculated
as of the date of any such disposition) shall not exceed 20% of
Consolidated Tangible Assets as of the last day of the most recently
ended fiscal quarter.
8.4 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall not
permit any Subsidiary to, merge, consolidate with or into, or convey, transfer,
lease or otherwise 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 other Person, except:
(a) any Subsidiary may merge with the Company, provided that
the Company shall be the continuing or surviving corporation, or with
any one or more Subsidiaries, provided that if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company or
another Wholly-Owned Subsidiary; and
(c) any merger, consolidation or disposition in connection
with a transaction permitted by SECTION 8.3 or an Acquisition permitted
by SECTION 8.5.
8.5 LOANS AND INVESTMENTS. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or obligations or other securities
of, or any interest in, any Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in any Person (including any Affiliate
of the Company) (any of the foregoing an "Investment"), unless (y) such loan,
advance, investment, acquisition or other purchase does not cause the Company to
violate the financial covenants contained in SECTION 8.1(A) or (B), and (z) no
Event of Default or Unmatured Event of Default would result therefrom.
8.6 LIMITATION ON SUBSIDIARY INDEBTEDNESS. The Company shall not permit
the sum of the aggregate amount of all Indebtedness of Subsidiaries (excluding
(i) the existing Indebtedness listed on SCHEDULE 8.6 and extensions, renewals
and refinancings thereof so long as the principal amount thereof is not
increased and (ii) extensions of credit by the Company to any of its
Subsidiaries or by any of its Subsidiaries to the Company or another Subsidiary)
to exceed 20% of Consolidated Tangible Assets.
8.7 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than the Company or a Subsidiary), except upon fair and
reasonable terms no less favorable to the
58
Company or such Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Company or such Subsidiary.
8.8 USE OF PROCEEDS. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock or (iii) to extend credit for the purpose of purchasing or
carrying any Margin Stock.
8.9 RESTRICTED PAYMENTS. The Company shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock or (ii) purchase, redeem or otherwise acquire for value, or permit any
Subsidiary to purchase or otherwise acquire for value, any shares of the
Company's capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding, unless (y) such dividend or distribution,
purchase redemption or other acquisition does not cause the Company to violate
the financial covenants contained in SECTION 8.1(A) or (B), and (z) no Event of
Default or Unmatured Event of Default would result therefrom.
8.10 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $15,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
8.11 CHANGE IN BUSINESS. The Company shall not, and shall not permit
any Subsidiary to, engage in any material line of business other than those
lines of business carried on by the Company and its Subsidiaries on the date
hereof and lines of business complementary thereto; PROVIDED that in no event
will the Company permit a material portion of the business of the Company and
its Subsidiaries, taken as a whole, to involve or relate to hazardous waste.
8.12 ACCOUNTING CHANGES. The Company shall not, and shall not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP.
8.13 BURDENSOME AGREEMENTS. The Company shall not enter into any
Contractual Obligation (other than this Agreement or any other Loan Document)
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; 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;
except, in each case, (1) as required under applicable Requirements of Law, (2)
as required under the Loan Documents, (3) for Permitted Liens, and (4) for
prohibitions on assignment or transfer contained in leases.
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ARTICLE IX
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute an "Event
of Default":
(a) NON-PAYMENT. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of
the principal amount of any L/C Obligation, or (ii) within five days
after the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document.
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by the Company or any Subsidiary made or deemed made herein or in any
other Loan Document, or which is contained in any certificate, document
or financial or other statement by the Company, any Subsidiary or any
Responsible Officer furnished at any time under this Agreement or under
any other Loan Document, is incorrect in any material respect on or as
of the date made or deemed made.
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe
any term, covenant or agreement contained in any of SUBSECTION 7.3(A)
or ARTICLE VIII.
(d) OTHER DEFAULTS. The Company fails to perform or observe
any other term or covenant contained in this Agreement or any other
Loan Document, and such failure shall continue unremedied for a period
of 30 days after the date upon which written notice thereof is given to
the Company by the Administrative Agent or any Lender.
(e) CROSS-DEFAULT. (i) The Company or any Subsidiary (A) fails
to make any payment of Material Financial Obligations when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or
otherwise, but after giving effect to any applicable grace or cure
period); or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition shall exist,
under one or more agreements or instruments relating to Material
Financial Obligations, if the effect of such failure, event or
condition (after giving effect to any applicable grace or cure period)
is to cause (or require), or to permit the holder or holders of such
Material Financial Obligations or the beneficiary or beneficiaries of
such Material Financial Obligations (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause (or
require), such Material Financial Obligations to become due and payable
(or to be purchased, repurchased, defeased or cash collateralized)
prior to the stated maturity thereof.
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; PROVIDED that the
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foregoing shall not apply to the voluntary liquidation, dissolution or
winding up of a Subsidiary permitted by SECTION 7.4.
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against a substantial part of the Company's
or any Subsidiary's properties, and such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded, within 60 days after commencement, filing or levy; (ii) the
Company or any Subsidiary admits the material allegations of a petition
against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency
Proceeding with respect to the Company or such Subsidiary; or (iii) the
Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a
substantial portion of its property or business.
(h) ERISA. (i) An ERISA Event shall occur 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 $5,000,000; (ii) a contribution
failure shall occur with respect to a Pension Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA; or (iii) the Company or
any ERISA Affiliate shall fail to pay when due, after the expiration of
any applicable grace period (or any period during which (x) the Company
is permitted to contest its obligation to make such payment without
incurring any liability (other than interest) or penalty and (y) the
Company is contesting such obligation in good faith and by appropriate
proceedings), any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA or any contribution obligation
under Section 4243 of ERISA, in each case under a Multiemployer Plan in
an aggregate amount in excess of $5,000,000.
(i) JUDGMENTS. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary involving in the aggregate a
liability (to the extent not covered by insurance as to which the
insurer does not dispute coverage) as to any single or related series
of transactions, incidents or conditions of $25,000,000 or more, and
the same shall remain unvacated and unstayed pending appeal for a
period of 25 days after the entry thereof.
(j) CHANGE OF CONTROL. Any Change of Control occurs.
(k) INVALIDITY OF LOAN DOCUMENTS. 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 the Company or
any of its Subsidiaries contests in any manner the validity or
enforceability of any Loan Document; or the Company or any of its
Subsidiaries denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document.
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9.2 REMEDIES. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans
(including the commitment of the Swing Line Lender to make Swing Line
Loans) and any obligation of each Issuing Lender to Issue Letters of
Credit to be terminated, whereupon such commitments and obligation
shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing
under all outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and 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 Company; and
(c) exercise on behalf of itself and the Lenders all other
rights and remedies available to it and the Lenders under the Loan
Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in SUBSECTION
(F) or (G) of SECTION 9.1 (in the case of CLAUSE (I) of SUBSECTION (G), upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans and any obligation of each Issuing Lender to Issue Letters
of Credit shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent, the Issuing Lender or any other Lender. The Administrative Agent shall
promptly notify the Company of any declaration described in CLAUSE (A) or (B) of
the preceding sentence, but failure to give any such notice shall not impair any
such declaration or result in any liability to the Administrative Agent.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto.
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Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Administrative Agent
shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and
no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Each Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents
associated therewith, and each Issuing Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent in
this ARTICLE X with respect to any acts taken or omissions suffered by
such Issuing Lender in connection with Letters of Credit Issued by it
or proposed to be Issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" as used in this ARTICLE X, and in the
definition of "Administrative Agent-Related Person" included such
Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the Issuing Lenders.
10.2 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
10.3 LIABILITY OF ADMINISTRATIVE AGENT. No Administrative Agent-Related
Person shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company or any
Subsidiary or Affiliate of the Company or any other party to any Loan Document
to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
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Document, or to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
10.4 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance
with a request or consent of the Required Lenders (or such greater
number of Lenders as may be expressly required hereby in any instance)
and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.1, 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 Effective Date specifying its objection
thereto.
10.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be directed by the Required Lenders in accordance with ARTICLE IX;
PROVIDED, HOWEVER, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Administrative Agent-Related Person has
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made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent to and acceptance of any assignment
or review of the affairs of the Company and its Subsidiaries or any Affiliate
thereof, shall be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Administrative Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries and Affiliates, and all applicable bank or other regulatory
laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Company hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Company, its Subsidiaries or Affiliates which may come into the possession of
any Administrative Agent-Related Person.
10.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Administrative Agent-Related Person (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation of
the Company to do so), pro rata, and hold harmless each Administrative
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; PROVIDED, HOWEVER, that no Lender shall be liable for the
payment to any Administrative Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Administrative Agent-Related Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders or all of the Lenders, as applicable, shall
be deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the termination of the combined
Commitments, the payment of all other Obligations and the resignation of the
Administrative Agent.
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10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with each of
the Company and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent or an Issuing Lender hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive information regarding the
Company, its Subsidiaries or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such Affiliate
or Subsidiary) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, BofA
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the such rights and powers as though it were not the
Administrative Agent or an Issuing Lender, and the terms "Lender" and "Lenders"
include BofA in its individual capacity.
10.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by BofA shall also constitute its resignation as an
Issuing Lender and Swing Line Lender. If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders, which successor administrative
agent shall be consented to by the Company at all times other than during the
existence of an Event of Default (which consent of the Company shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Company, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, Issuing
Lender and Swing Line Lender and the respective terms "Administrative Agent,"
"Issuing Lender" and "Swing Line Lender" shall mean such successor
administrative agent, Letter of Credit issuer and swing line lender, and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated and the retiring Issuing Lender's and Swing Line
Lender's rights, powers and duties as such shall be terminated, without any
other or further act or deed on the part of such retiring Issuing Lender or
Swing Line Lender or any other Lender, other than the obligation of the
successor Issuing Lender to issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or to make
other arrangements satisfactory to the retiring Issuing Lender to effectively
assume the obligations of the retiring Issuing Lender with respect to such
Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this ARTICLE X and SECTIONS
11.4 and 11.5 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
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10.10 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 the Company, 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 the Company)
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 claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and
the Administrative Agent under SECTIONS 2.9, 3.8 and 11.4) 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 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, 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 2.9 AND 11.4.
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 any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.11 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "co-agent," "book manager,"
"lead manager," "arranger," "lead arranger" or "co-arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
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ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Administrative Agent at the written request of the Required Lenders)
and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no such waiver, amendment or
consent shall increase or extend the Commitment of any Lender without the
written consent of such Lender; and PROVIDED, FURTHER, that no such waiver,
amendment or consent shall, unless in writing and signed by all Lenders and the
Company and acknowledged by the Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender without
the written consent of such Lender or reinstate any Commitment
terminated pursuant to SECTION 9.2;
(b) postpone or delay 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;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, or reduce any fees (other than the fees referred
to in SUBSECTION 2.9(A) or SUBSECTIONS 3.8(C) and (D) and the rate of
interest referred to in SUBSECTION 2.8(C)) or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Lenders or any of them to take any action hereunder; or
(e) amend this Section, or SECTION 2.13, or any provision
herein providing for consent or other action by all Lenders;
and PROVIDED, FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Required
Lenders or all Lenders, as the case may be, affect the rights or duties of such
Issuing Lender under this Agreement or any L/C-Related 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 Administrative Agent in
addition to the Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document and (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the Swing Line
Lender under this Agreement or any other Loan Document.
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11.2 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) GENERAL. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, 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 the Company, the Administrative Agent, the
applicable Issuing Lender or the Swing Line Lender, to the
address, facsimile number, electronic mail address or
telephone number specified for such Person on SCHEDULE 11.2 or
to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such
party in a notice to the other parties; and
(ii) if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number
specified in its Administrative Questionnaire or to such other
address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a
notice to the Company, the Administrative Agent, the
applicable Issuing Lender and the Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; PROVIDED, HOWEVER, that notices and other communications
to the Administrative Agent, the applicable Issuing Lender and the Swing Line
Lender pursuant to ARTICLES II AND III shall not be effective until actually
received by such Person. In no event shall a voicemail message be effective as a
notice, communication or confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force
and effect as manually-signed originals and shall be binding on the Company, the
Administrative Agent and the Lenders. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; PROVIDED, HOWEVER, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in SECTION 7.2, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
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(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Notices of Committed Borrowing and Notices of Swing Line
Loan) purportedly given by or on behalf of the Company 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 each Administrative Agent-Related Person and each
Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Company. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, 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.
11.4 ATTORNEY COSTS, EXPENSES AND TAXES. The Company agrees (a) to pay
or reimburse the Administrative Agent and BAS for all reasonable costs and
expenses incurred by BofA (including in its capacity as Administrative Agent,
Swing Line Lender and an Issuing Lender) and BAS in connection with the
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
incurred by the Administrative Agent and BAS with respect thereto, and (b) to
pay or reimburse the Administrative Agent and each Lender for all reasonable
costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
the other Loan Documents (including all such costs and expenses incurred during
any "workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any insolvency laws), including
all Attorney Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due under this
SECTION 11.4 shall be payable within ten Business Days after demand therefor.
The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations
11.5 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and
hold harmless each Administrative Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against any such Indemnitee in any way relating to or arising out
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of or in connection with (a) the execution, delivery, enforcement, performance
or administration of any Loan Document or any other agreement, letter or
instrument delivered in connection with the transactions contemplated thereby or
the consummation of the transactions contemplated thereby, (b) any Commitment,
Loan or Letter of Credit or the use of the proceeds therefrom (including any
refusal by the Applicable Issuing Lender 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), (c) any presence
or release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Company, any Subsidiary or any Affiliate of the
Company, or any Environmental Liability related in any way to the Company, any
Subsidiary or any Affiliate of the Company, or (d) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened in writing claim, investigation,
litigation or proceeding) and regardless of whether any Indemnitee is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses or disbursements 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. No Indemnitee shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks
or other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Effective Date). In the event Indemnitees intend to seek
indemnity hereunder from the Company, Indemnitees shall give prompt written
notice of such Indemnified Liabilities to the Company and Company's counsel at
the addresses set forth in SCHEDULE 11.2. All amounts due under this SECTION
11.5 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the resignation of the Administrative
Agent, the replacement of any Lender, the termination of the combined
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
11.6 PAYMENTS SET ASIDE. To the extent that the Company makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, a receiver or any other party, in
connection with any Insolvency Proceeding 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 set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
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11.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) 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 the Company may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible 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, (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) or (i) of this Section, or (iv) to an SPC in accordance with the
provisions of subsection (h) 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 Indemnitees) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible 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 (i) except 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 or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) 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 or delayed); (ii)
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 rights in respect of Swing Line Loans; (iii) any assignment
of a Commitment must be approved by the Administrative Agent, the applicable
Issuing Lender and the Swing Line Lender (each such approval not to be
unreasonably withheld or delayed) unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500.
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
72
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of SECTIONS 4.1, 4.3, 4.4, 11.4 and 11.5 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Company (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) The Administrative Agent, acting solely for this purpose as an
agent of the Company, shall maintain at the Administrative Agent's Payment
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 Company, 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 the Company and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Company 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 Company, the Administrative Agent
and the other Lenders 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 the first proviso to
SECTION 11.1 that directly affects such Participant. Subject to subsection (e)
of this Section, the Company agrees that each Participant shall be entitled to
the benefits of SECTIONS 4.1, 4.3 and 4.4 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 11.10 as though it were a Lender, provided
such Participant agrees to be subject to SECTION 2.13 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under SECTION 4.1 or 4.3 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. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of SECTION 4.1 unless the Company
73
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with SECTION 11.15 as though
it were a Lender.
(f) 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,
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) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the Issuing
Lenders and the Swing Line Lender, and (ii) unless an Event of Default
has occurred and is continuing, the Company (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Company or any of
the Company's Affiliates or Subsidiaries.
"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.
"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.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Company (an "SPC") the option to provide all or any
part of any Committed Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof. Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Company under this Agreement (including its obligations under
SECTION 4.3), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
74
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Company and the Administrative Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Committed Loans to any rating agency, commercial paper dealer or
provider of any surety or Guaranty Obligations or credit or liquidity
enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
SECTION 11.8, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, if at
any time BofA assigns all of its Commitment and Loans pursuant to subsection (b)
above, BofA may, (i) upon 30 days' notice to the Company and the Lenders, resign
as an Issuing Lender and/or (ii) upon 30 days' notice to the Company, resign as
Swing Line Lender. In the event of any such resignation as an Issuing Lender or
Swing Line Lender, the Company shall be entitled to appoint from among the
Lenders a successor Issuing Lender or Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor shall
affect the resignation of BofA as an Issuing Lender or Swing Line Lender, as the
case may be. If BofA resigns as an Issuing Lender, it shall retain all the
rights and obligations of an Issuing Lender hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as an
Issuing Lender 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 3.3). If BofA resigns
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, 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 2.16(B).
11.9 CONFIDENTIALITY. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on the Company's or such Subsidiary's behalf, under
75
this Agreement or any other Loan Document, and neither such Lender nor any of
its Affiliates shall use any such information other than in connection with or
in enforcement of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Lender, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company or any Subsidiary known to such
Lender; PROVIDED, HOWEVER, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which such Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Administrative Agent or any Lender or any
of their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Lender's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; (H) as to any
Lender or any of its Affiliates, as expressly permitted under the terms of any
other document or agreement regarding confidentiality to which the Company or
any Subsidiary is party or is deemed party with such Lender or such Affiliate;
and (I) to its Affiliates.
11.10 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, if any Event of Default exists, each Lender is authorized at
any time and from time to time, without prior notice to the Company, any such
notice being expressly waived by the Company to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the Company
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such set-off and application.
11.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.12 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
76
11.13 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.14 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Administrative Agent-Related Persons and the
Indemnified Persons, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any of
the other Loan Documents.
11.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Company pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the
Company pursuant to this Agreement) or such other evidence satisfactory to the
Company and the Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each
such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Foreign Lender by the Company pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (C) 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 that the Company make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or payable
to such Lender under any of the Loan Documents (for example, in the case of a
typical participation by such Lender), shall deliver to the Administrative Agent
on the date when such Foreign Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such other times
as may be necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (A) two duly signed completed copies of
the forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
77
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Company shall not be required to pay any additional amount to
any Foreign Lender under SECTION 4.1 (A) with respect to any Taxes required to
be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this SECTION 11.15(A) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this SECTION 11.15(A); provided that if such Lender
shall have satisfied the requirement of this SECTION 11.15(A) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this SECTION 11.15(A) shall
relieve the Company of its obligation to pay any amounts pursuant to SECTION 4.1
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Company is not required to pay
additional amounts under this SECTION 11.15(A).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the combined Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
11.16 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA; PROVIDED
THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
78
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF FLORIDA OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF FLORIDA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT
AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
FLORIDA LAW.
11.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.18 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents (and any agreement relating to fees referred in SUBSECTION 2.9(A)),
embodies the entire agreement and understanding among the Company, the Lenders
and the Administrative Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
11.19 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 Event of Default or Unmatured Event of 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.
[SIGNATURE PAGES FOLLOW]
79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
REPUBLIC SERVICES, INC.
By: /s/ Edward A. Lang, III
----------------------------------------
Name: Edward A. Lang, III
Title: Vice President Finance & Treasurer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Timothy H. Spanos
----------------------------------------
Name: Timothy H. Spanos
Title: Managing Director
BANK OF AMERICA, N.A., as Swing Line
Lender, as an Issuing Lender and as a Lender
By: /s/ Timothy H. Spanos
-----------------------------------------
Name: Timothy H. Spanos
Title: Managing Director
CITIBANK, N.A., as a Lender
By: /s/ David L. Harris
-----------------------------------------
Name: David L. Harris
Title: Vice President
BANK ONE, NA
By: /s/ Steven P. Sullivan
-----------------------------------------
Name: Steven P. Sullivan
Title: Associate Director
Signature Page
80
BARCLAYS BANK PLC
By: /s/ L. Peter Yetman
-----------------------------------------
Name: L. Peter Yetman
Title: Director
SUNTRUST BANK
By: /s/ Karen C. Copeland
-----------------------------------------
Name: Karen C. Copeland
Title: Vice President
BNP PARIBAS
By: /s/ Mike Shryock
-----------------------------------------
Name: Mike Shryock
Title: Vice President
By: /s/ John Stacy
-----------------------------------------
Name: John Stacy
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ William R. Goley
-----------------------------------------
Name: William R. Goley
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
-----------------------------------------
Name: Attila Koc
Title: Senior Vice President
Signature Page
81
FLEET NATIONAL BANK
By: /s/ David C. Brecht
-----------------------------------------
Name: David C. Brecht
Title: Vice President
THE BANK OF NEW YORK
By: /s/ David C. Siegel
-----------------------------------------
Name: David C. Siegel
Title: Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Robert Neubauer
-----------------------------------------
Name: Robert Neubauer
Title: Vice President
COMERICA BANK
By: /s/ Gerald R. Finney, Jr.
-----------------------------------------
Name: Gerald R. Finney, Jr.
Title: Vice President
Signature Page
82
Schedule 1.1
Pricing Schedule
The Facility Fee Rate, the Applicable Margin, the L/C Fee Rate and the
Utilization Fee Rate, for any fiscal quarter, shall be the applicable rate per
annum set forth in the table below, determined as of the day next following
receipt by the Administrative Agent from the Company of evidence satisfactory to
the Administrative Agent of the then Rating.
- --------------------------------------------------------------------------------
(In Basis Points)
- --------------------------------------------------------------------------------
Facility Applicable Utilization
Tier Rating (1) Fee Margin/ Fee
L/C Fee
Rate
- --------- ---------------------- ----------------- ------------- ---------------
I BBB+/Baa1 or higher 12.5 50.0 12.5
- --------- ---------------------- ----------------- ------------- ---------------
II BBB/Baa2 17.5 70.0 12.5
- --------- ---------------------- ----------------- ------------- ---------------
III BBB-/Baa3 20.0 80.0 25.0
- --------- ---------------------- ----------------- ------------- ---------------
IV less than BBB-/Baa3 25.0 100.0 25.0
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(1) Unless otherwise indicated, in the event of a single split Rating, the
higher Rating shall apply. In the event of a multiple split Rating, the
applicable Rating shall be one higher than the lower Rating.