CREDIT AGREEMENT DATED 12/19/2003
Published on March 15, 2004
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CREDIT AGREEMENT
Dated as of December 19, 2003
among
QUANTA SERVICES, INC.,
as the Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender, L/C Issuer and
Credit-Linked L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Joint Book Manager
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TABLE OF CONTENTS
SCHEDULES
1.01(a) Dispositions
1.01(b)(1) Existing Credit-Linked Letters of Credit
1.01(b)(2) Existing Letters of Credit
1.01(c) Permitted Charges
2.01 Commitments and Pro Rata Shares
6.10 Insurance
6.13 Subsidiaries
6.17 IP Rights
6.20(a) Locations of Real Property
6.20(b) Locations of Tangible Personal Property
6.20(c) Location of Chief Executive Office, Etc.
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
8.08 Affiliate Transactions
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Letter of Credit Transfer Notice
B Form of Loan Notice
C Form of Request for Credit-Linked Deposit
D Form of Swing Line Loan Notice
E-1 Form of Revolving Note
E-2 Form of Swing Line Note
E-3 Form of Credit-Linked Note
F Form of Compliance Certificate
G Form of Assignment and Assumption
H Form of Joinder Agreement
I Form of Money Market Account Agreement
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December __, 2003 among
QUANTA SERVICES, INC., a Delaware corporation (the "Borrower"), the Guarantors
(defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide $185,000,000 in
credit facilities for the purposes set forth herein, and the Lenders are willing
to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Acquisition", by any Person, means the acquisition by such Person, in
a single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 11.02 or such
other address or account as the Administrative Agent may from time to time
notify the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, BAS), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Credit-Linked Commitments" means the Credit-Linked
Commitments of all the Credit-Linked Lenders. The aggregate principal amount of
the Credit-Linked Commitment of all the Lenders as in effect on the Closing Date
is ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).
"Aggregate Revolving Commitments" means the Revolving Commitments of
all the Lenders. The initial amount of the Aggregate Revolving Commitments in
effect on the Closing Date is THIRTY FIVE MILLION DOLLARS ($35,000,000).
"Agreement" means this Credit Agreement, as amended, modified,
supplemented and extended from time to time.
"Applicable Rate" means the following percentages per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(a):
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is required to be
delivered pursuant to Section 7.02(a); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level 6 shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and shall
continue to apply until the first Business Day immediately following the date a
Compliance Certificate is delivered in accordance with Section 7.02(a),
whereupon the Applicable Rate shall be adjusted based upon the calculation of
the Consolidated Leverage Ratio contained in such Compliance Certificate. The
Applicable Rate in effect from the Closing Date through the first Business Day
immediately following the date a Compliance Certificate is required to be
delivered pursuant to Section 7.02(a) for the fiscal quarter ending December 31,
2003 shall be determined based upon Pricing Level 6.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit G.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease, the capitalized amount of the remaining
lease payments under the relevant lease that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease and (c) in respect of any Securitization
Transaction of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2002, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries, including the notes thereto.
"Auto-Renewal Credit-Linked Letter of Credit" has the meaning specified
in Section 2.05(b)(iii).
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.03(b)(iii).
"Availability Period" means, (a) with respect to the Revolving
Commitments, the period from and including the Closing Date to the earliest of
(i) the Maturity Date, (ii) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.08, and (iii) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02 and (b) with respect to
the Credit-Linked Commitments, the period from and including the Closing Date to
the earliest of (i) the Maturity Date, (ii) the date of termination of the
Credit-Linked Commitments pursuant to Section 2.08 and (iii) the date of
termination of the commitment of each Credit-Linked Lender to make Term Loans
pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"BAS" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole 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 Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in the "prime rate" announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Benchmark Rate" has the meaning set forth in Section 2.05(i).
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Revolving
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Borrower and its Subsidiaries at such time.
"Capital Lease" means, as applied to any Person, any lease of any
Property by that Person as lessee which, in accordance with GAAP, is required to
be accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Collateralize" means to pledge and deposit with or deliver to (a)
the Administrative Agent, for the benefit of the L/C Issuer and the Lenders with
a Revolving Commitment, 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 L/C Issuer (which documents are
hereby consented to by the Lenders) or (b) the Administrative Agent, for the
benefit of the Credit-Linked L/C Issuer and the Credit-Linked Lenders, as
collateral for the Credit-Linked L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance reasonably satisfactory
to the Administrative Agent and the Credit-Linked L/C Issuer (which documents
are hereby consented to by the Credit-Linked Lenders), as the context may
require. Derivatives of such term have corresponding meanings.
"Cash Equivalents" means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than one (1) year from the date of acquisition, (c) commercial paper
and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within twelve
(12) months of the date of acquisition, (d) repurchase agreements entered into
by any Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited such that 95% of such Investments are of the
character described in the foregoing subdivisions (a) through (d).
"Cash-Secured Letter of Credit" means any Letter of Credit issued
pursuant to Section 2.03 which is secured by cash pledged and deposited with the
Administrative Agent pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuer.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that (i) a person or group
shall be deemed to have "beneficial ownership" of all Capital Stock
that such person or group has the right to acquire (such right, an
"option right"), whether such right is exercisable immediately or only
after the passage of time and (ii) an entity shall not be deemed to
have "beneficial ownership" of any Capital Stock owned by any member of
the Borrower's board of directors employed by or affiliated with such
entity), directly or indirectly, of thirty eight percent (38%) of the
Capital Stock of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully
diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
or
(b) during any period of 24 consecutive months, a
majority of the members of the board of directors or other equivalent
governing body of the Borrower 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); or
(c) the occurrence of a "Fundamental Change" (or any
comparable term) under, and as defined in, the 2000 Subordinated
Documents; or
(d) the occurrence of a "Fundamental Change" (or any
comparable term) under, and as defined in, the 2003 Convertible
Subordinated Debentures Documents.
"Closing Date" means the date hereof.
"Collateral" means a collective reference to all real and personal
Property with respect to which Liens in favor of the Administrative Agent are
purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, the Money Market Account Agreement, the
Mortgages and other security documents as may be executed and delivered by the
Loan Parties pursuant to the terms of Section 7.14.
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender and/or the Credit-Linked Commitment of such Lender.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit F.
"Consolidated Asset Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Net Assets to (b) Consolidated
Funded Indebtedness (other than Subordinated Indebtedness) as of such date minus
unrestricted cash and Cash Equivalents in excess of $25,000,000 held by the
Borrower and its Subsidiaries which would appear on a consolidated balance sheet
of the Borrower and its Subsidiaries as of such date.
"Consolidated Capital Expenditures" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, all capital expenditures
(including, without limitation, any capitalized software development costs), as
determined in accordance with GAAP; provided, however, that Consolidated Capital
Expenditures shall not include (a) expenditures made with proceeds of any
Involuntary Disposition to the extent such expenditures are used to purchase
Property that is the same as or similar to the Property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.
"Consolidated EBIT" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Expense for such period, (b)
the provision for taxes based on income or revenues payable by the Borrower and
its Subsidiaries for such period, (c) without duplication, the Permitted Charges
for such period and (d) without duplication, Non-Cash Charges for such period,
as determined in accordance with GAAP. Notwithstanding the foregoing, for
purposes of calculating the Consolidated Interest Coverage Ratio, the
Consolidated Leverage Ratio and the Consolidated Senior Leverage Ratio as of the
end of the fiscal quarters ending December 31, 2003 and March 31, 2004,
Consolidated EBIT for the twelve month period ending as of the applicable fiscal
quarter shall be determined as follows:
Date of Fiscal Quarter End
December 31, 2003 $18,050,000 plus actual Consolidated EBIT
for the six month period ending on December
31, 2003
March 31, 2004 $18,050,000 plus actual Consolidated EBIT
for the nine month period ending on March
31, 2004
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBIT
for such period plus (b) the amount of depreciation and amortization expense for
such period (to the extent deducted in calculating Consolidated Net Income for
such period), all as determined in accordance with GAAP. Notwithstanding the
foregoing, for purposes of calculating the Consolidated Interest Coverage Ratio,
the Consolidated Leverage Ratio and the Consolidated Senior Leverage Ratio as of
the end of the fiscal quarters ending December 31, 2003 and March 31, 2004,
Consolidated EBITDA for the twelve month period ending as of the applicable
fiscal quarter shall be determined as follows:
Date of Fiscal Quarter End
December 31, 2003 $48,550,000 plus actual Consolidated EBITDA
for the six month period ending on December
31, 2003
March 31, 2004 $33,750,000 plus actual Consolidated EBITDA
for the nine month period ending on March
31, 2004
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to the sum of all
interest, premium payments, debt discount, fees, charges and related expenses of
the Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP;
provided, however, that Consolidated Interest Expense for the twelve month
period ending as of the fiscal quarters ending December 31, 2003, March 31,
2004, June 30, 2004 and September 30, 2004 shall equal the following:
Date of Fiscal Quarter End
December 31, 2003 $21,500,000
March 31, 2004 $16,125,000 plus actual Consolidated
Interest Expense for the three month period
ending on March 31, 2004
June 30, 2004 $10,750,000 plus actual Consolidated
Interest Expense for the six month period
ending on June 30, 2004
September 30, 2004 $5,375,000 plus actual Consolidated Interest
Expense for the nine month period ending on
September 30, 2004
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBIT for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b) to (b) the sum of (i)
Consolidated Interest Expense for the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b) minus (ii) all interest expense attributable
to capitalized loan costs and the amount of fees paid in connection with the
issuance of letters of credit on behalf of the Borrower or any Subsidiary during
such period.
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date minus
unrestricted cash and Cash Equivalents in excess of $25,000,000 held by the
Borrower and its Subsidiaries which would appear on a consolidated balance sheet
of the Borrower and its Subsidiaries as of such date to (b) Consolidated EBITDA
for the period of the four fiscal quarters most recently ended for which the
Borrower has delivered financial statements pursuant to Section 7.01(a) or (b).
"Consolidated Net Accounts" means, as of any date of determination,
accounts receivable set out in the balance sheet of the Borrower and its
Subsidiaries as accounts receivable, net of allowances, and in each case, as
determined in accordance with GAAP.
"Consolidated Net Assets" means, as of any date of determination, the
sum of (a) Consolidated Net Accounts plus (b) Consolidated Net PP&E.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains and extraordinary losses) for that
period.
"Consolidated Net PP&E" means, as of any date of determination, the
difference of (a) total property, plant and equipment of the Borrower and its
Subsidiaries set out in the consolidated balance sheet of the Borrower and its
Subsidiaries minus (b) accumulated depreciation expense attributed to such
items, set out in the consolidated balance sheet of the Borrower and its
Subsidiaries as "property and equipment, net" and in each case, as determined in
accordance with GAAP.
"Consolidated Net Worth" means, as of any date of determination,
consolidated shareholders' equity of the Borrower and its Subsidiaries as of
that date determined in accordance with GAAP.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness (other than
Subordinated Indebtedness) as of such date minus unrestricted cash and Cash
Equivalents in excess of $25,000,000 held by the Borrower and its Subsidiaries
which would appear on a consolidated balance sheet of the Borrower and its
Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Credit Extension" means each of the following: (a) a Borrowing, (b) an
L/C Credit Extension and (c) a Credit-Linked Credit Extension (including the
making of certain proceeds in the Credit Linked Deposit Account available as a
Term Loan).
"Credit-Linked Commitment" means, as to each Lender, its obligation (a)
to make the Credit-Linked Deposit to the Administrative Agent pursuant to
Section 2.01(b) in the principal amount set forth opposite such Lender's name on
Schedule 2.01 and (b) to make Term Loans to the Borrower with the Dollars
deposited in the Credit-Linked Deposit pursuant to Section 2.06(a), as such
amount may be reduced from time to time in accordance with this Agreement.
"Credit-Linked Credit Extension" means (a) with respect to any
Credit-Linked Letter of Credit, the issuance thereof or extension of the expiry
date thereof, or the renewal, reinstatement or increase of the amount thereof,
(b) the transfer of a Letter of Credit to a Credit-Linked Letter of Credit and
(c) the making of any Term Loans.
"Credit-Linked Deposit" has the meaning set forth in Section
2.05(c)(ii).
"Credit-Linked Deposit Account" means the deposit account established
by the Administrative Agent in its name and under its sole and exclusive control
at its offices in Dallas, Texas, designated as the "Bank of America, N.A. as
Administrative Agent Quanta Services, Inc. Credit Linked Deposit Account" that
shall be used solely for the purposes set forth in Sections 2.05(c)(ii) and
(iii) and in Section 2.06(a)(iii).
"Credit-Linked Expiration Date" means the day that is thirty days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Credit-Linked Facility Fee" has the meaning set forth in Section
2.05(k).
"Credit-Linked Fronting Fee" has the meaning set forth in Section
2.05(l).
"Credit-Linked Honor Date" has the meaning set forth in Section
2.05(c)(i).
"Credit-Linked Issuance Limits" has the meaning set forth in Section
2.05(a)(ii).
"Credit-Linked L/C Advance" means, with respect to each Credit-Linked
Lender, such Credit-Linked Lender's funding of its participation in any
Credit-Linked L/C Borrowing in accordance with its Pro Rata Share pursuant to
Section 2.05(c).
"Credit-Linked L/C Borrowing" means, without duplication, an extension
of credit resulting from a drawing under any Credit-Linked Letter of Credit
which has not been reimbursed on the date when made or refinanced by a
Credit-Linked L/C Advance or a Term Loan.
"Credit-Linked L/C Issuer" means Bank of America in its capacity as
issuer of Credit-Linked Letters of Credit hereunder, or any successor issuer of
Credit-Linked Letters of Credit hereunder.
"Credit-Linked L/C Issuer Documents" means with respect to any
Credit-Linked Letter of Credit issued by the Credit-Linked L/C Issuer, such
Credit-Linked Letter of Credit, any applications for issuance or amendment of
such Credit-Linked Letter of Credit, and any other document, agreement and
instrument entered into by the Credit-Linked L/C Issuer and the Borrower or by
the Borrower in favor of the Credit-Linked L/C Issuer and relating to any such
Credit-Linked Letter of Credit, including any of the Credit-Linked L/C Issuer's
standard form documents for issuances and amendments of letters of credit and
guarantees or other similar undertakings.
"Credit-Linked L/C Obligations" means, as at any date of determination,
the aggregate undrawn amount of all outstanding Credit-Linked Letters of Credit
plus the aggregate of all outstanding Unreimbursed Credit-Linked Amounts in
respect to any Credit-Linked Letters of Credit, including, without duplication,
all Credit-Linked L/C Borrowings arising from any Credit-Linked Letters of
Credit.
"Credit-Linked Lenders" means the Lenders that have a Credit-Linked
Commitment.
"Credit-Linked Letter of Credit" means (a) any letter of credit issued
pursuant to Section 2.05, (b) any Letter of Credit transferred to a
Credit-Linked Letter of Credit pursuant to Section 2.05(a)(vi) and (c) any
Existing Credit-Linked Letter of Credit. A Credit-Linked Letter of Credit may be
a commercial letter of credit or a standby letter of credit.
"Credit-Linked Letter of Credit Application" means an application and
agreement for the issuance or amendment of a letter of credit in the form from
time to time in use by the Credit-Linked L/C Issuer.
"Credit-Linked Nonrenewal Notice Date" has the meaning set forth in
Section 2.05(b)(iii).
"Credit-Linked Note" has the meaning set forth in Section 2.13(a).
"Credit-Linked Obligations means, without duplication, as at any date
of determination, the aggregate of all Credit-Linked L/C Obligations on such
date plus the aggregate amount of the Term Loans outstanding on such date.
"Credit-Linked Participation" has the meaning set forth in Section
2.05(c)(ii).
"Debt Issuance" means the issuance by the Borrower or any Subsidiary of
any Indebtedness.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan or
Credit-Linked L/C Advance, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such
Loan or Credit-Linked L/C Advance plus 2% per annum, in each case to the fullest
extent permitted by applicable Laws. For purposes of this definition, the
"Applicable Rate" with respect to any Term Loan or Credit-Linked L/C Advance
shall be deemed to be 3.00% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or the Credit-Linked Deposits, participations in L/C
Obligations or Credit-Linked L/C Obligations or participations in Swing Line
Loans required to be funded by it hereunder within one (1) Business Day of the
date required to be funded by it hereunder, (b) has otherwise failed to pay over
to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any Property
by the Borrower or any Subsidiary (including the Capital Stock of any
Subsidiary), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (i) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business of the
Borrower and its Subsidiaries, (ii) the sale, lease, license, transfer or other
disposition of machinery and equipment no longer used or useful in the conduct
of business of the Borrower and its Subsidiaries, (iii) any sale, lease,
license, transfer or other disposition of Property by the Borrower or any
Subsidiary to any Loan Party, provided that the Loan Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Administrative Agent may reasonably request so as to cause the Loan Parties to
be in compliance with the terms of Section 7.14 after giving effect to such
transaction, (iv) any Involuntary Disposition by the Borrower or any Subsidiary,
(v) any Disposition by the Borrower or any Subsidiary to the extent constituting
a Permitted Investment, (vi) any sale, lease, license, transfer or other
disposition of Property by any Foreign Subsidiary to another Foreign Subsidiary,
and (vii) any sale, transfer or other disposition of those assets identified on
Schedule 1.01(a) attached hereto.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Earn Out Obligations" means, with respect to an Acquisition, all
obligations of the Borrower or any Subsidiary to make earn out or other
contingency payments pursuant to the documentation relating to such Acquisition.
The amount of any Earn Out Obligation shall be deemed to be the aggregate
liability in respect thereof as recorded on the balance sheet of the Borrower
and its Subsidiaries in accordance with GAAP.
"Eligible Assets" means Property that is used or useful in the same or
a similar line of business as the Borrower and its Subsidiaries were engaged in
on the Closing Date (or any reasonable extensions or expansions thereof).
"Eligible Assignee" has the meaning set forth in Section 11.07(g).
"Environmental Laws" means any and all federal, state, local, foreign
and other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Issuance" means any issuance by the Borrower or any Subsidiary
to any Person of shares of its Capital Stock, other than (a) any issuance of
shares of its Capital Stock pursuant to the exercise of options or warrants, (b)
any issuance of shares of its Capital Stock pursuant to the conversion of any
debt securities to equity or the conversion of any class equity securities to
any other class of equity securities, (c) any issuance of options or warrants
relating to its Capital Stock, and (d) any issuance by the Borrower of shares of
its Capital Stock as consideration for a Permitted Acquisition. The term "Equity
Issuance" shall not be deemed to include any Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o)
of the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Sections 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Eurodollar Base Rate" means, for any Interest Period with respect to
any Eurodollar Rate Loan:
(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 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 (rounded upward to the
next 1/100th of 1%) 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 Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the 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.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to
be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate for
such Eurodollar Loan for such Interest Period by (b) one minus the Eurodollar
Reserve Percentage for such Eurodollar Loan for such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"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 Eurodollar funding (currently
referred to as "Eurocurrecy liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 9.01.
"Excluded Property" means, with respect to any Loan Party, including
any Person that becomes a Loan Party after the Closing Date as contemplated by
Section 7.12, (a) any owned or leased real or personal Property which is located
outside of the United States unless requested by the Administrative Agent or the
Required Lenders, (b) any personal Property (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (i)
governed by the Uniform Commercial Code or (ii) effected by appropriate evidence
of the Lien being filed in either the United States Copyright Office or the
United States Patent and Trademark Office, unless requested by the
Administrative Agent or the Required Lenders, and (c) any Property which,
subject to the terms of Section 8.09, is subject to a Lien of the type described
in Section 8.01(i) pursuant to documents which prohibit such Loan Party from
granting any other Liens in such Property.
"Existing Credit-Linked Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount, name of
beneficiary and date of expiry on Schedule 1.01(b)(1).
"Existing Letters of Credit" means the letters of credit described by
date of issuance, letter of credit number, undrawn amount, name of beneficiary
and date of expiry on Schedule 1.01(b)(2).
"Facilities" means, at any time, a collective reference to the
facilities and real properties owned, leased or operated by the Borrower or any
Subsidiary.
"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 Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated November 12, 2003 among
the Borrower, the Administrative Agent and BAS.
"Foreign Lender" has the meaning set forth in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Funded Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current
or long-term (including the Obligations) and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all purchase money Indebtedness;
(c) all obligations arising under letters of credit
(including standby and commercial), bankers' acceptances, bank
guaranties and similar instruments;
(d) all obligations in respect of the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business), including without limitation, any Earn
Out Obligations;
(e) the Attributable Indebtedness of Capital Leases and
Synthetic Leases;
(f) the Attributable Indebtedness of Securitization
Transactions;
(g) all preferred stock or other equity interests
providing for mandatory redemptions, sinking fund or like payments
prior to the Maturity Date;
(h) all Guarantees with respect to Indebtedness of the
types specified in clauses (a) through (g) above of another Person; and
(i) all Indebtedness of the types referred to in clauses
(a) through (h) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or joint venturer,
except to the extent that Indebtedness is expressly made non-recourse
to such Person.
For purposes hereof, (x) the amount of any direct obligation arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments
shall be the maximum amount available to be drawn thereunder and (y)
the amount of any Guarantee shall be the amount of the Indebtedness
subject to such Guarantee.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV hereof.
"Guarantors" means each Domestic Subsidiary of the Borrower and each
other Person that joins as a Guarantor pursuant to Section 7.12, together with
their successors and permitted assigns.
"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 set forth in Section 2.03(c).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) net obligations under any Swap Contract;
(c) all obligations arising under surety bonds;
(d) all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a), (b) and (c) above
of any other Person; and
(e) all Indebtedness of the types referred to in clauses
(a) through (d) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary is a general partner or
joint venturer, unless such Indebtedness is expressly made non-recourse
to the Borrower or such Subsidiary.
For purposes hereof (y) the amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date and (z) the amount of any Guarantee shall be
the amount of the Indebtedness subject to such Guarantee.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means, (a) as to the Credit-Linked Deposits, the
period commencing on the date any such Credit-Linked Deposit is made and ending
on the date three months thereafter, (b) as to Credit-Linked L/C Advances and
Term Loans, the period commencing on the date any such Credit-Linked L/C
Advance or Term Loan is made (except with respect to Term Loans made from the
proceeds of the Credit-Linked Deposits pursuant to Sections 2.06(a)(i)(A) or
(B), the Interest Period shall be deemed to commence on the same day as the
Interest Period commencement date for the Credit-Linked Deposits, and with
respect to Term Loans made through the conversion of Credit-Linked L/C Advances
pursuant to Section 2.06(a)(i)(C), the Interest Period shall be deemed to
commence on the same day as the Interest Period commencement date for the
Credit-Linked Deposits, if any, on the date of such conversion) and ending on
the earlier of (x) the date three months thereafter and (y) the last day of the
Interest Period with respect to the Credit-Linked Deposits, (c) after the
initial Interest Periods described in (a) and (b) above as to Credit-Linked
Deposits, Credit-Linked L/C Advances and Term Loans, the period commencing on
the last day of the immediately preceding Interest Period and ending on the date
three months thereafter and (d) as to each Revolving Loan that is a Eurodollar
Rate Loan, the period commencing on the date such Eurodollar Rate Loan is
disbursed or converted to or continued as a Eurodollar Rate Loan and ending on
the date one, two, three or six months thereafter, as selected by the Borrower
in its Loan Notice; provided that:
(i) any Interest Period that would otherwise end
on a day that is not a Business Day shall be extended to the
next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the
Maturity Date;
provided further that after the occurrence and during the
continuance of an Event of Default, the Required Credit-Linked Lenders, acting
through the Administrative Agent, may designate one or more Interest Periods for
the Credit-Linked L/C Advances and/or the Term Loans which are shorter than that
set forth above, such designation to be effective after the last day of the
applicable existing Interest Period.
"Interim Financial Statements" has the meaning set forth in Section
5.01(c).
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Capital Stock of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person, or (c) an Acquisition. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Involuntary Disposition" means any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any Property of the
Borrower or any of its Subsidiaries.
"IP Rights" has the meaning set forth in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"Issuers" means the collective reference to the L/C Issuer and the
Credit-Linked L/C Issuer and "Issuer" means any one of them.
"Issuer-Related Persons" means any Issuer, together with its
Affiliates, and the officers, directors, employees, agents and attorneys-in-fact
of such Issuer and its Affiliates.
"Joinder Agreement" means a joinder agreement substantially in the form
of Exhibit H executed and delivered by a Domestic Subsidiary in accordance with
the provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
outstanding Unreimbursed Amounts, including, without duplication, all L/C
Borrowings.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto and their successors and assigns and, as the context
requires, includes the L/C Issuer, the Credit-Linked L/C Issuer and the Swing
Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means (a) any letter of credit issued pursuant to
Section 2.03 and (b) any Existing Letter of Credit. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is thirty days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
the Aggregate Revolving Commitments and (b) $35,000,000 (as such amount may be
increased pursuant to Section 2.02(f)). The Letter of Credit Sublimit is part
of, and not in addition to, the Aggregate Revolving Commitments.
"Letter of Credit Transfer Notice" means a notice of transfer of a
Letter of Credit to a Credit-Linked Letter of Credit pursuant to Section
2.05(a)(vi), which shall be substantially in the form of Exhibit A.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan, Swing Line Loan or Term Loan.
"Loan Documents" means this Agreement, each Note, each Letter of
Credit, each Letter of Credit Application, each Joinder Agreement, the
Collateral Documents, each Request for Credit Extension, each Compliance
Certificate, the Fee Letter and each other document, instrument or agreement
from time to time executed by the Borrower or any of its Subsidiaries or any
Responsible Officer thereof and delivered in connection with this Agreement.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans, (b)
a conversion of Loans from one Type to the other, (c) a request for the making
of Term Loans from the proceeds of the Credit-Linked Deposits pursuant to
Section 2.06(a) or (d) a continuation of Eurodollar Rate Loans, pursuant to
Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit B.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities,
financial condition or prospects of the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of the Loan Parties taken as a
whole to perform their obligations under the Loan Documents; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.
"Maturity Date" means (a) as to the Revolving Loans, Swing Line Loans
and Letters of Credit (and the related L/C Obligations), December 19, 2007 and
(b) as to the Credit-Linked Letters of Credit (and the related Credit-Linked L/C
Obligations) and the Term Loans, June 19, 2008.
"Money Market Account Agreement" means the Money Market Account
Agreement dated as of the Closing Date between the Administrative Agent and Bank
of America, as depository, substantially in the form of Exhibit I attached
hereto, concerning the Credit-Linked Deposit Account, as amended, modified,
restated or supplemented from time to time.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Mortgaged Property" means any real property that is owned or leased by
a Loan Party and is subject to a Mortgage.
"Mortgages" means the mortgages, deeds of trust or deeds to secure debt
that purport to grant to the Administrative Agent a security interest in the fee
interest and/or leasehold interests of any Loan Party in (i) each of the real
properties designated as a "Mortgaged Property" on Schedule 6.20(a) and (ii)
each real property (other than Excluded Property) acquired or leased by a Loan
Party subsequent to the Closing Date, as the same may be amended, modified,
restated or supplemented from time to time.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"Non-Cash Charges" means, for any period, the amount of non-cash
charges determined in accordance with GAAP; provided that if any cash outlay is
made during such period in respect of such non-cash charge, only the amount of
such non-cash charge which exceeds the amount of the cash outlay may be added
back to Consolidated Net Income for purposes of calculating Consolidated EBIT.
"Nonrenewal Notice Date" has the meaning specified in Section
2.03(b)(iii).
"Note" or "Notes" means the Revolving Notes, the Swing Line Note and/or
the Credit-Linked Notes, individually or collectively, as appropriate.
"Obligations" means all advances to, and debts, liabilities,
indemnities, obligations, covenants and duties of, any Loan Party arising under
any Loan Document or otherwise with respect to any Loan, Letter of Credit or
Credit-Linked Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding. The foregoing shall also include any Swap Contract between any
Loan Party and any Lender or Affiliate of a Lender.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to any Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
(ii) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date; and (iii) with respect to any Credit-Linked L/C Obligations on any
date, the amount of such Credit-Linked L/C Obligations on such date after giving
effect to any Credit-Linked Credit Extension occurring
on such date and any other changes in the aggregate amount of the Credit-Linked
L/C Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Credit-Linked Letters of Credit or any
reductions in the maximum amount available for drawing under Credit-Linked
Letters of Credit taking effect on such date.
"Participant" has the meaning specified in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisitions" means Investments consisting of an Acquisition
by the Borrower or any Subsidiary of the Borrower, provided that (i) the
Property acquired (or the Property of the Person acquired) in such Acquisition
is used or useful in the same or a similar line of business as the Borrower and
its Subsidiaries were engaged in on the Closing Date (or any reasonable
extensions or expansions thereof), (ii) the Administrative Agent shall have
received all items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section 7.12 and/or Section
7.14, (iii) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iv) the Borrower shall
have delivered to the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis,
the Loan Parties would be in compliance with the financial covenants set forth
in Section 8.11(b) and (c) as of the most recent fiscal quarter for which the
Borrower has delivered financial statements pursuant to Section 7.01(a) or (b),
(v) the representations and warranties made by the Loan Parties in any Loan
Document shall be true and correct in all material respects at and as if made as
of the date of such Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate to an earlier date,
(vi) if such transaction involves the purchase of an interest in a partnership
between the Borrower (or a Subsidiary of the Borrower) as a general partner and
entities unaffiliated with the Borrower or such Subsidiary as the other
partners, such transaction shall be effected by having such equity interest
acquired by a corporate holding company directly or indirectly wholly-owned by
the Borrower, (vii) immediately after giving effect to such Acquisition, there
shall be at least $10,000,000 of availability existing under the Aggregate
Revolving Commitments, (viii) the cash consideration paid for any such
Acquisition shall not exceed (a) if the Consolidated Leverage Ratio (calculated
on a Pro Forma Basis) is greater than or equal to 3.5 to 1.0, $20,000,000 or (b)
if the Consolidated Leverage Ratio (calculated on a Pro Forma Basis) is less
than 3.5 to 1.0, $40,000,000 and (ix) the aggregate cash consideration for all
such Acquisitions occurring during any fiscal year shall not exceed (a) if the
Consolidated Leverage Ratio (calculated on a Pro Forma Basis) is greater than or
equal to 3.5 to 1.0, $40,000,000 or (b) if the Consolidated Leverage Ratio
(calculated on a Pro Forma Basis) is less than 3.5 to 1.0, $80,000,000.
"Permitted Charges" means, for any period, the sum of (a) lease
termination expenses and severance costs not exceeding $5,000,000 in the
aggregate which relate to the organizational restructuring of the Borrower and
its Subsidiaries, plus the amounts attributable to written off loan costs and
any make whole amounts plus (b) those costs and expenses of the Borrower
identified on Schedule 1.01(c) attached hereto to the extent incurred during
such period.
"Permitted Investments" means, at any time, Investments by the Borrower
or any of its Subsidiaries permitted to exist at such time pursuant to the terms
of Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of
the Borrower or any of its Subsidiaries permitted to exist at such time pursuant
to the terms of Section 8.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pledge Agreement" means the pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties,
as amended, modified, restated or supplemented from time to time.
"Pro Forma Basis" means, for purposes of calculating the Consolidated
Leverage Ratio (including for purposes of determining the Applicable Rate) and
the Consolidated Senior Leverage Ratio, that any Acquisition shall be deemed to
have occurred as of the first day of the most recent four fiscal quarter period
preceding the date of such Acquisition for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b). In connection with the
foregoing, (a) income statement items attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in
such calculations to the extent (A) such items are not otherwise included in
such income statement items for the Borrower and its Subsidiaries in accordance
with GAAP or in accordance with any defined terms set forth in Section 1.01 and
(B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness
incurred or assumed by the Borrower or any Subsidiary (including the Person or
Property acquired) in connection with such transaction and any Indebtedness of
the Person or Property acquired which is not retired in connection with such
transaction shall be deemed to have been incurred as of the first day of the
applicable period.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculation of the
Consolidated Leverage Ratio and the Consolidated Senior Leverage Ratio as of the
most recent fiscal quarter end for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b) after giving effect to the
applicable transaction on a Pro Forma Basis.
"Pro Rata Share" means, as to each Lender at any time, (a) with respect
to such Lender's Revolving Commitment at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof, and (b) with respect to such Lender's
Credit-Linked Commitment at any time, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the aggregate
principal amount of (i) the Term Loans held by such Lender at such time and (ii)
the amount of Credit-Linked Deposits held by such Lender at such time and the
denominator of which is the aggregate principal amount of (i) the Term Loans at
such time and (ii) the Total Credit-Linked Deposit at such time;
provided that if the commitment of the Credit-Linked L/C Issuer to make
Credit-Linked Credit Extensions has been terminated pursuant to Section 9.02,
then the numerator of such fraction shall be such Lender's Outstanding Amount of
all Obligations, and the denominator shall be the Outstanding Amount of all
Obligations of all Lenders at such time. The initial Pro Rata Share of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Property" means any interest of any kind in any property or asset,
whether real, personal or mixed, or tangible or intangible.
"Register" has the meaning set forth in Section 11.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the thirty-day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing, a
making of proceeds in the Credit-Linked Deposit, a Term Loan or the conversion
or continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit
Extension or Credit-Linked Credit Extension (other than a Term Loan), a Letter
of Credit Application or Credit-Linked Letter of Credit Application, as
applicable and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice,
or in the event that an "auto borrow" or "zero balance" or similar arrangement
shall be in place with the Swing Line Lender, such form of request required by
such alternative notice arrangements.
"Request for Credit-Linked Deposit" means a request to prepay the Term
Loans by depositing Dollars in the Credit-Linked Deposit Account, which shall be
substantially in the form of Exhibit C.
"Required Credit-Linked Lenders" means, at any time, Credit-Linked
Lenders holding in the aggregate more than fifty percent (50%) of the
Credit-Linked Deposits, the outstanding Credit-Linked L/C Obligations and the
outstanding Term Loans. The Credit-Linked Deposits of, the outstanding
Credit-Linked Obligations and the outstanding Term Loans held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Credit-Linked Lenders.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than fifty percent (50%) of (a)(i) the Revolving Commitments and (ii) the
Credit-Linked Deposits, the outstanding Credit-Linked L/C Obligations and the
outstanding Term Loans or (b) if the Revolving Commitments have been terminated,
the Credit-Linked Deposits, the outstanding Loans, L/C Obligations,
Credit-Linked L/C Obligations and Swing Line Loans and participations therein.
The Revolving Commitments of, Credit-Linked Deposits of, the outstanding
Credit-Linked Obligations and the outstanding Term Loans held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.
"Required Revolving Lenders" means, at any time, Lenders holding in the
aggregate more than fifty percent (50%) of (a) the Revolving Commitments or (b)
if the Revolving Commitments have been terminated, the outstanding Revolving
Loans, L/C Obligations and Swing Line Loans and participations therein. The
Revolving Commitments of any Defaulting Lender shall be excluded for purposes of
making a determination of Required Revolving Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or general counsel
of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other Property) with respect to any Capital Stock of the
Borrower 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 of any option, warrant or other right to acquire any
such Capital Stock.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be reduced or increased from time to
time in accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.13(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to the Borrower or
any Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Borrower or such Subsidiary shall sell or transfer any Property, used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such Property or other Property that it intends to use for
substantially the same purpose or purposes as the Property being sold or
transferred.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Transaction" means any financing transaction or series
of related financing transactions (including factoring arrangements) pursuant to
which the Borrower or any Subsidiary may sell, convey or otherwise transfer, or
grant a security interest in, accounts, payments, receivables, rights to future
lease payments or residuals or similar rights to payment to a special purpose
subsidiary or affiliate of the Borrower that is not a Loan Party.
"Security Agreement" means the security agreement dated as of the
Closing Date executed in favor of the Administrative Agent by each of the Loan
Parties, as amended, modified, restated or supplemented from time to time.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subordinated Indebtedness" means the (a) unsecured Indebtedness under
(i) the 2000 Subordinated Documents, as amended or modified from time to time in
accordance with the terms hereof and (ii) the 2003 Convertible Subordinated
Debentures, as amended or modified from time to time in accordance with the
terms hereof and (b) any other unsecured Indebtedness of the Borrower or any
Subsidiary which by its terms is expressly subordinated in right of payment to
the prior payment of the Obligations under this Agreement and the other Loan
Documents on terms and conditions and evidenced by documentation reasonably
satisfactory to the Administrative Agent.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Borrowing of Swing Line
Loans pursuant to Section 2.04(b), which, if in writing, shall be substantially
in the form of Exhibit D.
"Swing Line Note" has the meaning specified in Section 2.13(a).
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
the balance sheet under GAAP.
"Term Loan" has the meaning specified in Section 2.06(a)(i).
"Term Loan Issuance Date" has the meaning specified in Section
2.06(a)(iii).
"Threshold Amount" means $2,000,000.
"Total Credit-Linked Deposit" means, at any time, the sum of all
Credit-Linked Lenders' Credit-Linked Deposits, as the same may be reduced from
time to time. As of the Closing Date, the amount of the Total Credit-Linked
Deposit is ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).
"Total Revolving Outstandings" means the aggregate Outstanding Amount
of all Revolving Loans, all Swing Line Loans and all L/C Obligations.
"Type" means, with respect to any Loan, its character as a Base Rate
Loan or a Eurodollar Rate Loan.
"UCP" has the meaning specified in Section 2.03(h).
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Internal
Revenue Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Unreimbursed Credit-Linked Amount" has the meaning set forth in
Section 2.05(c)(i).
"Unused Amount" has the meaning set forth in Section 2.06(a)(i).
"Voting Stock" means, with respect to any Person, Capital Stock issued
by such Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock
is at the time owned by the Borrower directly or indirectly through other
Persons 100% of whose Capital Stock is at the time owned, directly or
indirectly, by the Borrower.
"2000 Subordinated Documents" means the 2000 Subordinated Indenture and
all other documents executed and delivered in connection with the 2000
Subordinated Indenture, in each case as in effect on the Closing Date and as the
same may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
"2000 Subordinated Indenture" means that certain Subordinated Indenture
dated as of July 25, 2000 as supplemented by that certain First Supplemental
Indenture dated as of July 25, 2000, in each case between the Borrower, as
issuer and Chase Bank of Texas, National Association, as trustee, as amended,
modified, restated or supplemented and in effect from time to time in accordance
with the terms hereof and thereof.
"2003 Convertible Subordinated Debentures" means those 4.5% Convertible
Subordinated Debentures of the Borrower due 2023 issued pursuant to the 2003
Subordinated Indenture, as in effect on the Closing Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"2003 Convertible Subordinated Debentures Documents" means the 2003
Convertible Subordinated Debentures, the 2003 Subordinated Indenture and all
other documents executed and delivered in respect of the 2003 Convertible
Subordinated Debentures and the 2003 Subordinated Indenture, in each case as in
effect on the Closing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"2003 Subordinated Indenture" means that certain Indenture dated as of
October 17, 2003 between the Borrower, as issuer, and Wells Fargo Bank, N.A., as
trustee, as amended, modified, restated or supplemented and in effect from time
to time in accordance with the terms hereof and thereof.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable
to the singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Loan Document
shall refer to such Loan Document as a whole and not to any particular
provision thereof.
(ii) Article, Section, Exhibit and Schedule
references are to the Loan Document in which such reference
appears.
(iii) The term "including" is by way of example
and not limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.
(c) 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) Section headings herein and in the other Loan
Documents are included for convenience of reference only and shall not
affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Except as otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations except as expressly provided herein) required
to be submitted pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements;
provided, however, that calculations of Attributable Indebtedness under any
Synthetic Lease or the implied interest component of any Synthetic Lease shall
be made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease.
(b) The Borrower will provide a written summary of changes in GAAP
that are material to the Borrower and in the consistent application thereof with
each annual and quarterly Compliance Certificate delivered in accordance with
Section 7.02(a). If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and
agree that all calculations of the Consolidated Leverage Ratio (including for
purposes of determining the Applicable Rate) and the Consolidated Senior
Leverage Ratio shall be made on a Pro Forma Basis.
1.04 Rounding.
Any financial ratios required to be maintained by the Borrower pursuant
to this Agreement shall be carried to two decimal places and shall be calculated
by dividing the appropriate component by the other component, carrying the
result to three decimal places and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to
Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications
are not prohibited by any Loan Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts.
Unless otherwise specified, (a) all references herein to the amount of
a Letter of Credit at any time shall be deemed to mean the maximum face amount
of such Letter of Credit after giving effect to all increases thereof
contemplated by such Letter of Credit or the Letter of Credit Application
therefor, whether or not such maximum face amount is in effect at such time and
(b) all references herein to the amount of a Credit-Linked Letter of Credit at
any time shall be deemed to mean the maximum face amount of such Credit-Linked
Letter of Credit after giving effect to all increases thereof contemplated by
such Credit-Linked Letter of Credit or the Credit-Linked Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans and Credit-Linked Deposits.
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Borrower in Dollars from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Revolving Commitment. Within the limits of
each Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.07, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein, provided,
however, all Borrowings made on the Closing Date shall be made as Base Rate
Loans.
(b) Credit-Linked Deposits. Subject to the terms and conditions
set forth herein, each Credit-Linked Lender severally agrees to fund such
Lender's Credit-Linked Deposit to the Administrative Agent in Dollars on the
Closing Date in an amount equal to its Credit-Linked Commitment for deposit by
the Administrative Agent in the Credit-Linked Deposit Account.
2.02 Borrowings, Conversions and Continuations of Revolving Loans.
(a) Each Borrowing, each conversion of Revolving Loans from one
Type to the other, and each continuation of Revolving Loans that are Eurodollar
Rate Loans shall be made upon the Borrower's irrevocable notice to the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of, Revolving
Loans that are Eurodollar Rate Loans or any conversion of Revolving Loans that
are Eurodollar Rate Loans to Base Rate Loans and (ii) on the requested date of
any Borrowing of Revolving Loans that are Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(b) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Borrowing of Revolving Loans that are Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of
Revolving Loans that are Base Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Revolving Loans from one Type to the
other, or a continuation of Revolving Loans that are Eurodollar Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Revolving
Loans to be borrowed, converted or continued, (iv) the Type of Revolving Loans
to be borrowed or to which existing Revolving Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of a Revolving Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Revolving Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be effective as of
the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(b) Following receipt of a Loan Notice pursuant to Section
2.02(a), the Administrative Agent shall promptly notify each Lender with a
Revolving Commitment of the amount of its Pro Rata Share of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender with
a Revolving Commitment of the details of any automatic conversion to Base Rate
Loans as described in the preceding subsection. In the case of a Borrowing, each
Lender with a Revolving Commitment shall make the amount of its Revolving Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 5.02 (and, if such Borrowing is the initial
Credit Extension, Section 5.01), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date of a Borrowing of Revolving Loans, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, and second, to the
Borrower as provided above.
(c) Except as otherwise provided herein, a Revolving Loan that is
a Eurodollar Rate Loan may be continued or converted only on the last day of the
Interest Period for such Eurodollar Rate Loan. During the existence of a Default
or Event of Default, no Revolving Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Lenders,
and the Required Lenders may demand that any or all of the then outstanding
Eurodollar Rate Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower
and the Lenders with a Revolving Commitment of the interest rate applicable to
any Interest Period for Revolving Loans that are Eurodollar Rate Loans upon
determination of such interest rate. The determination of the Eurodollar Rate
by the Administrative Agent shall be conclusive in the absence of manifest
error. At any time that Revolving Loans that are Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders
with a Revolving Commitment of any change in Bank of America's prime rate used
in determining the Base Rate promptly following the public announcement of such
change.
(e) After giving effect to all Borrowings, all conversions of
Revolving Loans from one Type to the other, and all continuations of Revolving
Loans as the same Type, there shall not be more than 5 Interest Periods in
effect with respect to Revolving Loans.
(f) The Borrower may at any time and from time to time, upon prior
written notice by the Borrower to the Administrative Agent, increase the
Aggregate Revolving Commitments by up to FIFTY MILLION DOLLARS ($50,000,000)
with additional Revolving Commitments from any existing Lender or new Revolving
Commitments from any other Person selected by the Borrower and approved by the
Administrative Agent (not to be unreasonably withheld); provided that:
(i) any such increase shall be in a minimum principal
amount of $5 million and in integral multiples of $5 million in excess
thereof;
(ii) no Default or Event of Default shall be continuing at
the time of any such increase;
(iii) no existing Lender shall be under any obligation to
increase its Revolving Commitment and any such decision whether to
increase its Revolving Commitment shall be in such Lender's sole and
absolute discretion; and
(iv) any new Lender shall join this Agreement by executing
such joinder documents reasonably required by the Administrative Agent.
In connection with any such increase in the Aggregate Revolving Commitments, the
Letter of Credit Sublimit shall be increased by the same amount and Schedule
2.01 shall be revised by the Administrative Agent to reflect the new Revolving
Commitments and distributed to the Lenders.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders with a Revolving Commitment set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit in Dollars for the account of the Borrower or any of
its Subsidiaries, and to amend or renew Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor
drafts under the Letters of Credit; and (B) the Lenders with a
Revolving Commitment severally agree to participate in Letters of
Credit issued for the account of the Borrower or any Subsidiary;
provided that the L/C Issuer shall not be obligated to make any L/C
Credit Extension with respect to any Letter of Credit, and no Lender
with a Revolving Commitment shall be obligated to participate in any
Letter of Credit if as of the date of such L/C Credit Extension, (x)
the Total Revolving Outstandings would exceed the Aggregate Revolving
Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed
such Lender's Revolving Commitment or (z) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such
Letter of Credit, or any Law applicable to the L/C Issuer or
any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which the L/C Issuer in good faith deems
material to it;
(B) subject to Section 2.03(b)(iii), the expiry
date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the Required Revolving Lenders have approved such
expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
borrowers generally; or
(E) such Letter of Credit is in an initial
amount less than $100,000, in the case of a commercial Letter
of Credit, or $200,000, in the case of a standby Letter of
Credit, or is to be denominated in a currency other than
Dollars (or such lesser amount as may be agreed to by the L/C
Issuer, in its sole discretion).
(iii) The L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue
or amend any Letter of Credit if the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, on
or prior to the Business Day prior to the requested date of issuance or
amendment of such Letter of Credit, that one or more applicable
conditions contained in Article V shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in
the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least three (3) Business Days (or
such later date and time as the L/C Issuer 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 Letter of Credit
Application shall (x) be accompanied by a written notification from the
Borrower stating that such application is related to a Letter of Credit
to be issued pursuant to Section 2.03 and (y) specify in form and
detail reasonably satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) whether or not the
requested Letter of Credit will be a Cash-Secured Letter of Credit
pursuant to the Borrower's pledge and deposit of cash pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer; (F) the documents to be
presented by such beneficiary in case of any drawing thereunder; (G)
the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (H) such other matters as the L/C
Issuer may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed
date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may reasonably require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer 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 L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or any
Subsidiary, as the case may be, or enter into the applicable amendment,
as the case may be, in each case in accordance with the L/C Issuer's
usual and customary business practices. Immediately upon the issuance
of each Letter of Credit, each Lender with a Revolving Commitment shall
be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter
of Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided
that any such Auto-Renewal Letter of Credit must permit the L/C Issuer
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 L/C Issuer, the Borrower shall not be
required to make a specific request to the L/C Issuer 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
L/C Issuer to permit the renewal of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C Issuer shall not permit any such
renewal if (A) the L/C Issuer 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
2.03(a)(ii) or otherwise), or (B) it has received notice (which may be
by
telephone or in writing) on or before the day that is five Business
Days before the 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 Borrower that
one or more of the applicable conditions specified in Section 5.02 is
not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an "Honor Date"), the
Borrower shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Lender's Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject
to the amount of the unutilized portion of the Aggregate Revolving
Commitments. Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice. Notwithstanding the foregoing, if the Borrower
elects to deposit cash with the Administrative Agent to secure any
Letter of Credit, any Unreimbursed Amount with respect to such Letter
of Credit shall be funded with such cash on the Honor Date.
(ii) Each Lender with a Revolving Commitment (including
the Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the Administrative Agent for
the account of the L/C Issuer at the Administrative Agent's 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 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by (A) a Borrowing of Base Rate Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any
other reason or (B) with cash pledged and deposited with the
Administrative Agent to secure such Unreimbursed Amount, the Borrower
shall be deemed to have incurred from the L/C Issuer an L/C Borrowing
in the amount of the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event,
each Lender's payment to the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment
in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of
such Lender's Pro Rata Share of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B)
the occurrence or continuance of a Default or an 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 Revolving Loans pursuant to this Section 2.03(c) is subject to
the conditions set forth in Section 5.02 (other than delivery by the
Borrower of a Loan Notice). No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse
the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender with a Revolving Commitment fails to
make available to the Administrative Agent for the account of the L/C
Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the Federal Funds Rate
from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent
manifest error.
(vii) Notwithstanding that a Letter of Credit issued or
outstanding hereunder is in support of any obligations of a Subsidiary
of the Borrower, the Borrower shall be obligated to reimburse the L/C
Issuer hereunder for the full amount of any and all drawings under such
Letter of Credit.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.03(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower 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.
(ii) If any payment received by the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in
Section 11.06 (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender with a Revolving Commitment
shall pay to the Administrative Agent for the account of the L/C Issuer
its Pro Rata 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.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, any other Loan Document or any other
agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; 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 Borrower.
The Borrower 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 Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that,
in paying any drawing under a Letter of Credit, the L/C Issuer shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
L/C Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees of the L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower 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 Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. None of the L/C Issuer, any Agent-Related Person, nor any
of the respective correspondents, participants or assignees of the L/C Issuer,
shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided, however, that anything in such clauses
to the contrary notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of such L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). The Borrower hereby grants to the Administrative Agent, for the benefit
of the L/C Issuer and the Lenders with a Revolving Commitment, a security
interest in all such cash, deposit accounts and all balances in the applicable
cash collateral accounts and all proceeds therein. Such cash collateral shall be
maintained in blocked deposit accounts at Bank of America. Furthermore, at the
time of the issuance of any Letter of Credit pursuant to Section 2.03(b), the
Borrower may, in its sole and absolute discretion, deposit with or deliver to
the Administrative Agent, for the benefit of the L/C Issuer and the Lenders with
a Revolving Commitment, as collateral for such Letter of Credit, cash pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, (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 "UCP") at the time of issuance shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share (i) a Letter of Credit fee for each commercial Letter of Credit equal
to the Applicable Rate times the daily maximum amount available to be drawn
under such Letter of Credit (whether or not such maximum amount is then in
effect under such Letter of Credit) and (ii) a Letter of Credit fee for each
standby Letter of Credit equal to the Applicable Rate times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit). Such Letter of
Credit fees shall be computed on a quarterly basis in arrears. Such letter of
credit fees shall be due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of
Credit Expiration Date and thereafter on demand. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account (i) a one time fronting fee for each commercial Letter of Credit equal
to 1/8 of 1% times the amount of such commercial Letter of Credit, due and
payable at the time of issuance and (ii) a fronting fee with respect to each
standby Letter of Credit in an amount equal to 1/8 of 1% per annum on the daily
maximum amount available to be drawn thereunder (whether or not such maximum
amount is then in effect under such Letter of Credit), due and payable quarterly
in arrears on the Business Day immediately following the last Business Day of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such standby Letter of Credit, and on the Letter of
Credit Expiration Date. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(l) Transfer of Letter of Credit to Credit-Linked Letter of
Credit. The Borrower may elect, one time per fiscal quarter, to transfer Letters
of Credit to Credit-Linked Letters of Credit provided that any such transfer
complies with the terms of Section 2.05(a)(vi).
(m) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation Section 2.03(a), a Letter of Credit issued hereunder shall
upon the request of the Borrower be issued for the account of any Subsidiary of
the Borrower, provided that notwithstanding such request, the Borrower shall be
the actual account party for all purposes of this Agreement for such Letter of
Credit and such request shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
2.04 Swing Line Loans.
(a) Swing Line Facility. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees to make loans (each such loan, a
"Swing Line Loan") to the Borrower in Dollars from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Pro Rata Share of the
Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of
such Lender's Revolving Commitment; provided, however, that after giving effect
to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment, and provided, further, that the Borrower shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.04, prepay under Section
2.07, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base
Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender with a
Revolving Commitment shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Lender's Pro Rata Share times the amount of such Swing Line
Loan.
(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall
be made upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum principal amount of $100,000 and integral
multiples of $100,000 in excess thereof, and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed
Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower. Notwithstanding the
foregoing, however, in the event that an "auto borrow" or "zero balance" or
similar arrangement shall then be in place with the Swing Line Lender, the
Borrower shall request Swing Line Loans pursuant to such alternative notice
arrangements, if any, provided thereunder or in connection therewith, and each
Swing Line Loan advance shall be in such minimum amounts, if any, provided by
such arrangement.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably requests and authorizes the Swing Line Lender to so
request on its behalf), that each Lender with a Revolving Commitment
make a Base Rate Loan in an amount equal to such Lender's Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such request
shall be made in writing (which written request shall be deemed to be a
Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02. The Swing
Line Lender shall furnish the Borrower with a copy of the applicable
Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Lender with a Revolving Commitment shall make an amount
equal to its Pro Rata Share of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent's
Office not later than 1:00 p.m. on the day specified in such Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to
the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Borrowing of Revolving Loans in accordance with
Section 2.04(c)(i), the request for Base Rate Loans
submitted by the Swing Line Lender as set forth herein shall be deemed
to be a request by the Swing Line Lender that each of the Lenders with
a Revolving Commitment fund its risk participation in the relevant
Swing Line Loan and each Lender's payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any Lender with a Revolving Commitment fails to
make available to the Administrative Agent for the account of the Swing
Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum
equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or
to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Revolving Loans pursuant to this Section
2.04(c) is subject to the conditions set forth in Section 5.02. No such
purchase or funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded
a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line
Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender under any of the circumstances
described in Section 11.06 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
with a Revolving Commitment shall pay to the Swing Line Lender its Pro
Rata Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the
Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line
Lender shall be responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Lender funds its Revolving Loans that are Base Rate Loans
or risk participation pursuant to this Section 2.04 to refinance such Lender's
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall
make all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.05 Credit-Linked Deposits and Credit Extensions.
(a) Credit-Linked Letters of Credit.
(i) Subject to the terms and conditions set forth herein,
(A) the Credit-Linked L/C Issuer agrees, in reliance upon the
agreements of the Credit-Linked Lenders set forth in this Section 2.05,
from time to time on any Business Day during the period from the
Closing Date until the Credit-Linked Expiration Date, to issue
Credit-Linked Letters of Credit denominated in Dollars for the account
of the Borrower or any Subsidiary, and (B) the Credit-Linked L/C Issuer
agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.05, (1) to amend, extend, reinstate or renew
Credit-Linked Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drawings under the
Credit-Linked Letters of Credit; and (C) the Credit-Linked Lenders
severally agree to participate in Credit-Linked Letters of Credit
issued or outstanding hereunder for the account of the Borrower or any
Subsidiary as provided in Section 2.05(c), and all reimbursement
obligations and rights hereunder in respect thereof and the
Credit-Linked L/C Issuer Documents with respect thereto and the
Credit-Linked L/C Issuer hereby grants to the Credit-Linked Lenders
such participation interests in such Credit-Linked Letters of Credit
and all reimbursement obligations and rights hereunder in respect
thereof and such related Credit-Linked L/C Issuer Documents; provided
that the Borrower shall not request the issuance of any Credit-Linked
Letter of Credit, the Credit-Linked L/C Issuer shall not be obligated
to issue any Credit-Linked Letter of Credit, and no Credit-Linked
Lender shall participate in any Credit-Linked Letter of Credit if as of
the date of such Credit-Linked Credit Extension, (I) the sum of the
Outstanding Amount of (x) all Credit-Linked Letters of Credits plus (y)
the aggregate of the Unreimbursed Credit-Linked Amounts with respect to
Credit-Linked Letters of Credit would exceed the principal amount of
the Total Credit-Linked Deposit; (II) any Credit-Linked Lender's Pro
Rata Share of the sum of the Outstanding Amount of (x) all
Credit-Linked Letters of Credits and (y) the aggregate of the
Unreimbursed Credit-Linked Amounts with respect to the Credit-Linked
Letters of Credit would exceed the principal amount of such
Credit-Linked Lender's Credit-Linked Deposit; or (III) the expiry date
of any such requested Credit-Linked Letter of Credit would occur after
the Credit-Linked Expiration Date, unless all the Credit-Linked Lenders
have approved such expiry date; and provided further that in
determining the availability hereunder with respect to any
Credit-Linked Letter of Credit issued or outstanding hereunder, the
Total Credit-Linked Deposit will be deemed to be utilized in respect of
each Credit-Linked Letter of Credit in an amount equal to the maximum
amount available to be drawn under each such Credit-Linked Letter of
Credit after giving effect to all increases thereof contemplated by
such Credit-Linked Letter of Credit (whether or not such maximum amount
is in effect at such time). Furthermore, the Credit-Linked L/C Issuer
shall not be obligated to issue any Credit-Linked Letter of Credit if
after giving effect to the issuance of such Credit-Linked Letter of
Credit, the aggregate Outstanding Amount of Credit-Linked Letters of
Credit having expiry dates after the applicable reduction date
specified in Section 2.08(c) plus the aggregate of Unreimbursed
Credit-Linked Amount plus the aggregate Term Loans outstanding would
exceed the aggregate amount of the Credit-Linked Deposits and Term
Loans on such applicable dates permitted by Section 2.08(c).
(ii) Within the foregoing limits (the "Credit-Linked
Issuance Limits"), and subject to the terms and conditions hereof, the
Borrower's ability to obtain Credit-Linked Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain
Credit-Linked Letters of Credit to replace Credit-Linked Letters of
Credit that have expired, been terminated or cancelled, or that have
been drawn upon and reimbursed. Notwithstanding anything to the
contrary set forth herein, (a) if any portion of the Total
Credit-Linked Deposit is utilized to reimburse the Credit-Linked L/C
Issuer for any amounts drawn under any Credit-Linked Letter of Credit
pursuant to Section 2.05(c) hereof, the Total Credit-Linked Deposit
shall be permanently reduced by the corresponding amount utilized to
reimburse the Credit-Linked L/C Issuer and shall not be reinstated or
(b) if any portion of the Total Credit-Linked Deposit is utilized to
make Term Loans pursuant to Section 2.06(a) hereof, the Total
Credit-Linked Deposit shall be reduced by the corresponding amount
utilized to make Term Loans.
(iii) The Credit-Linked L/C Issuer shall be under no
obligation to issue any Credit-Linked Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Credit-Linked L/C Issuer
from issuing such Credit-Linked Letter of Credit, or any Law
applicable to the Credit-Linked L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the
Credit-Linked L/C Issuer shall prohibit, or request that the
Credit-Linked L/C Issuer refrain from, the issuance of letters
of credit generally or such Credit-Linked Letter of Credit in
particular or shall impose upon the Credit-Linked L/C Issuer
with respect to such Credit-Linked Letter of Credit any
restriction, reserve or capital requirement (for which the
Credit-Linked L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose
upon the Credit-Linked L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the Credit-Linked L/C Issuer in good faith deems
material to it;
(B) subject to Section 2.05(b)(iii), the expiry
date of such requested Credit-Linked Letter of Credit would
occur more than twelve months after the date of issuance or
last renewal, unless the Required Credit-Linked Lenders have
approved such expiry date;
(C) the expiry date of such requested
Credit-Linked Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved
such expiry date;
(D) the issuance of such Credit-Linked Letter of
Credit would violate one or more policies of the Credit-Linked
L/C Issuer applicable to borrowers generally; or
(E) except as otherwise agreed by the
Administrative Agent and the Credit-Linked L/C Issuer, such
Credit-Linked Letter of Credit is in a face amount less than
$1,000,000, or is to be denominated in a currency other than
Dollars.
(iv) The Credit-Linked L/C Issuer shall be under no
obligation to amend any Credit-Linked Letter of Credit if (A) the
Credit-Linked L/C Issuer would have no obligation at such time to issue
such Credit-Linked Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Credit-Linked Letter of Credit
does not accept the proposed amendment to such Credit-Linked Letter of
Credit.
(v) The Credit-Linked L/C Issuer shall be under no
obligation to issue or amend any Credit-Linked Letter of Credit if the
Credit-Linked L/C Issuer has received written notice from
any Credit-Linked Lender, the Administrative Agent or any Loan Party,
on or prior to the Business Day prior to the requested date of issuance
or amendment of such Credit-Linked Letter of Credit, that one or more
applicable conditions contained in Article V shall not then be
satisfied.
(vi) The Credit-Linked L/C Issuer and the Credit-Linked
Lenders agree that the Borrower may transfer (not more than one time
per fiscal quarter) Letters of Credit issued pursuant to the terms of
Section 2.03 to Credit-Linked Letters of Credit; provided that (A) the
Borrower has delivered to the Credit-Linked L/C Issuer (with a copy to
the Administrative Agent) a Letter of Credit Transfer Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower not later than 11:00 a.m. at least three (3) Business Days
prior to the proposed transfer date, (B) such Letter of Credit together
with any other Letters of Credit being transferred pursuant to this
Section 2.05(a)(vi) are in an aggregate face amount of not less than
$1,000,000, (C) except as provided in Section 2.05(a)(vi)(B), such
Letter of Credit satisfies all of the requirements contained in Section
2.05(a)(iii), (D) after giving effect to such Credit-Linked Credit
Extension, (I) the sum, without duplication, of the Outstanding Amount
of (x) all Credit-Linked Letters of Credits and (y) the aggregate of
the Unreimbursed Credit-Linked Amounts with respect to Credit-Linked
Letters of Credit does not exceed the principal amount of the Total
Credit-Linked Deposit; (II) any Credit-Linked Lender's Pro Rata Share
of the sum, without duplication, of the Outstanding Amount of (x) all
Credit-Linked Letters of Credits and (y) the aggregate of the
Unreimbursed Credit-Linked Amounts with respect to the Credit-Linked
Letters of Credit does not exceed the principal amount of such
Credit-Linked Lender's Credit-Linked Deposit, (E) the expiry date of
such Letter of Credit does not occur after the Credit-Linked Expiration
Date, unless all the Credit-Linked Lenders have approved such expiry
date and (F) all of the conditions contained in Section 5.02 have been
satisfied on and as of the date of the applicable transfer. Immediately
upon the transfer of a Letter of Credit to a Credit-Linked Letter of
Credit pursuant to the terms of this Section 2.05(a)(vi), each
Credit-Linked Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Credit-Linked L/C Issuer a
risk participation in such Credit-Linked Letter of Credit in an amount
equal to the product of such Credit-Linked Lender's Pro Rata Share
times the amount of such Credit-Linked Letter of Credit which risk
participation shall be satisfied solely from such Credit-Linked
Lender's Pro Rata Share of the Credit-Linked Deposits in the
Credit-Linked Deposit Account in accordance with the provisions of
Section 2.05(c).
(b) Procedures for Issuance and Amendment of Credit-Linked Letters
of Credit; Auto-Renewal Credit-Linked Letters of Credit.
(i) Each Credit-Linked Letter of Credit shall be issued
or amended, as the case may be, upon the request of the Borrower
delivered to the Credit-Linked L/C Issuer (with a copy to the
Administrative Agent) in the form of a Credit-Linked Letter of Credit
Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Credit-Linked Letter of Credit
Application must be received by the Credit-Linked L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least three (3)
Business Days (or such later date and time as the Credit-Linked L/C
Issuer 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 Credit-Linked
Letter of Credit, such Credit-Linked Letter of Credit Application shall
(x) be accompanied by a written notification from the Borrower stating
that such application is related to a Credit-Linked Letter of Credit to
be issued pursuant to Section 2.05 and (y) shall specify in form and
detail reasonably satisfactory to the Credit-Linked L/C Issuer: (A) the
proposed issuance date of the requested Credit-Linked 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 Credit-Linked L/C Issuer may reasonably
require. In the case of a request for an amendment of any outstanding
Credit-Linked Letter of Credit, such Credit-Linked Letter of Credit
Application shall specify in form and detail reasonably satisfactory to
the Credit-Linked L/C Issuer (A) the Credit-Linked Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) the
delivery instructions with respect to the amendment. Additionally, the
Borrower shall furnish to the Credit-Linked L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Credit-Linked Letter of Credit issuance or amendment,
including any Credit-Linked L/C Issuer Documents as the Credit-Linked
L/C Issuer or the Administrative Agent may reasonably require. Without
limiting the generality of the foregoing, the delivery of a
Credit-Linked Letter of Credit Application is additional to, and not in
replacement or substitution of, any other Credit-Linked L/C Issuer
Document that the Credit-Linked L/C Issuer may require. Upon the
effectiveness of any issuance or amendment of a Credit-Linked Letter of
Credit that will constitute a Credit-Linked Letter of Credit hereunder,
the Administrative Agent and the Lenders shall be entitled to assume
that the Credit-Linked L/C Issuer has obtained such Credit-Linked L/C
Issuer Documents as it shall have requested, executed by the relevant
parties thereto to the extent required hereby.
(ii) Promptly after receipt of any Credit-Linked Letter of
Credit Application, the Credit-Linked L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) (if the
Administrative Agent is different from the Credit-Linked L/C Issuer)
that the Administrative Agent has received a copy of such Credit-Linked
Letter of Credit Application from the Borrower and, if not, the
Credit-Linked L/C Issuer will provide the Administrative Agent with a
copy thereof (if the Administrative Agent is different from the
Credit-Linked L/C Issuer). Upon receipt by the Credit-Linked L/C Issuer
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 Credit-Linked L/C
Issuer shall, on the requested date, issue a Credit-Linked Letter of
Credit for the account of the Borrower, or its Subsidiary, as the case
may be, or enter into the applicable amendment, as the case may be, in
each case in accordance with the Credit-Linked L/C Issuer's usual and
customary business practices. Immediately upon the issuance of each
Credit-Linked Letter of Credit, each Credit-Linked Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Credit-Linked L/C Issuer a risk participation in such
Credit-Linked Letter of Credit in an amount equal to the product of
such Credit-Linked Lender's Pro Rata Share times the amount of such
Credit-Linked Letter of Credit which risk participation shall be
satisfied solely from such Credit-Linked Lender's Pro Rata Share of the
Credit-Linked Deposits in the Credit-Linked Deposit Account in
accordance with the provisions of Section 2.05(c).
(iii) If the Borrower so requests in any applicable
Credit-Linked Letter of Credit Application, the Credit-Linked L/C
Issuer may, in its sole and absolute discretion, agree to issue a
Credit-Linked Letter of Credit that has automatic renewal provisions
(each, an "Auto-Renewal Credit-Linked Letter of Credit"); provided that
any such Auto-Renewal Credit-Linked Letter of Credit must permit the
Credit-Linked L/C Issuer to prevent any such renewal at least once in
each twelve-month period (commencing with the date of issuance of such
Credit-Linked Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Credit-Linked Nonrenewal
Notice Date") in each such twelve-month period to be agreed upon at the
time such Credit-Linked Letter of Credit is issued. Unless otherwise
directed by the Credit-Linked L/C Issuer, the Borrower shall not be
required to make a specific request to the Credit-Linked L/C Issuer for
any such renewal. Once an Auto-Renewal Credit-Linked Letter of Credit
has been issued, the Credit-Linked Lenders shall be deemed to have
authorized (but may not require) the
Credit-Linked L/C Issuer to permit the renewal of such Credit-Linked
Letter of Credit at any time to an expiry date not later than the
Credit-Linked Expiration Date; provided, however, that the
Credit-Linked L/C Issuer shall not permit any such renewal if (A) the
Credit-Linked L/C Issuer has determined that it would have no
obligation at such time to issue such Credit-Linked Letter of Credit in
its renewed form under the terms hereof (by reason of the provisions of
Section 2.05(a)(ii) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is five
(5) Business Days before the Credit-Linked Nonrenewal Notice Date (1)
from the Administrative Agent that the Required Credit-Linked Lenders
have elected not to permit such renewal or (2) from the Administrative
Agent, any Credit-Linked Lender or the Borrower that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied.
(iv) If the Credit-Linked L/C Issuer shall issue any
Credit-Linked Letter of Credit or amend any Credit-Linked Letter of
Credit (if the effect thereof is to increase the face amount), without
obtaining prior consent from the Administrative Agent (if the
Administrative Agent is different from the Credit-Linked L/C Issuer)
(as provided in clause (ii) above), or if the Credit-Linked L/C Issuer
shall permit the extension or renewal of an Auto-Renewal Credit without
giving timely prior notice to the Administrative Agent (if the
Administrative Agent is different from the Credit-Linked L/C Issuer) or
when such extension or renewal is not permitted hereunder (as provided
in clause (iii) above), such Credit-Linked Letter of Credit (in the
case of any such amendment, to the extent of the increased face amount
thereof, and in the case of any reinstatement, to the extent of the
reinstated amount thereof) (A) shall for all purposes be deemed to have
been issued by the Credit-Linked L/C Issuer solely for its own account
and risk and without recourse to any Credit-Linked Deposits in the
Credit-Linked Deposit Account or any Collateral, and (B) shall not be
considered a Credit-Linked Letter of Credit outstanding under this
Agreement, and no Credit-Linked Lender shall be deemed to have any
participation therein, effective as of the date of such issuance,
amendment, reinstatement, extension or renewal, as the case may be,
unless the Required Credit-Linked Lenders expressly consent thereto.
(v) Promptly after its delivery of any Credit-Linked
Letter of Credit or any amendment to a Credit-Linked Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof,
the Credit-Linked L/C Issuer will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Credit-Linked
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Credit-Linked Deposits.
(i) Upon receipt from the beneficiary of any
Credit-Linked Letter of Credit of any notice of drawing under such
Credit-Linked Letter of Credit, the Credit-Linked L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later
than 11:00 a.m. on the date of any payment by the Credit-Linked L/C
Issuer under a Credit-Linked Letter of Credit (each such date, a
"Credit-Linked Honor Date"), the Borrower shall reimburse the
Credit-Linked L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so
reimburse the Credit-Linked L/C Issuer by such time, the Administrative
Agent shall promptly notify each Credit-Linked Lender of the
Credit-Linked Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Credit-Linked Amount"), and the amount of such
Credit-Linked Lender's Pro Rata Share. In such event the Administrative
Agent shall also notify each Credit-Linked Lender that Credit-Linked
L/C Advances will be funded by application of such Credit-Linked
Lender's Pro Rata Share of the Credit-Linked Deposits in the
Credit-Linked Deposit Account on the sixth Business Day after such
Credit-Linked Honor Date to the extent the Unreimbursed Credit-Linked
Amount (or any portion thereof) remains
outstanding on such day. Any notice given by the Credit-Linked L/C
Issuer or the Administrative Agent pursuant to this Section 2.05(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) The Credit-Linked L/C Issuer hereby irrevocably
grants to each Credit-Linked Lender, and each Credit-Linked Lender
hereby irrevocably accepts and purchases from the Credit-Linked L/C
Issuer on the terms and conditions hereinafter stated, for such
Credit-Linked Lender's own account and risk, an undivided interest
equal to its Pro Rata Share in the Credit-Linked L/C Issuer's
obligations and rights with respect to the Credit-Linked Letters of
Credit issued pursuant to this Agreement (as to each Credit-Linked
Lender, its "Credit-Linked Participation"), which purchase price when
paid to the Administrative Agent shall not be a deposit obligation of
the Administrative Agent. The consideration for the Credit-Linked
Participation of each Credit-Linked Lender shall consist of the payment
by such Credit-Linked Lender to the Administrative Agent of an amount
equal to the Dollar amount set forth opposite such Credit-Linked
Lender's name in Schedule 2.01 under the heading "Credit-Linked
Deposit" (as the same may be reduced from time to time in accordance
with this Agreement, such Lender's "Credit-Linked Deposit"), subject to
the conditions precedent set forth in Article V hereof. Each
Credit-Linked Lender shall pay to the Administrative Agent its
Credit-Linked Deposit in full on the Closing Date. The Credit-Linked
Deposits of all Credit-Linked Lenders shall be held by, and in the name
of, the Administrative Agent in the Credit-Linked Deposit Account under
the sole dominion and control of the Administrative Agent. Each
Credit-Linked Lender unconditionally and irrevocably agrees with the
Administrative Agent and the Credit-Linked L/C Issuer that, if a
drawing is paid under any Credit-Linked Letter of Credit for which the
Credit-Linked L/C Issuer is not reimbursed in full by the Borrower in
cash within five (5) Business Days after the applicable Credit-Linked
Honor Date or converted into a Term Loan under Section 2.06(a), such
Credit-Linked Lender hereby authorizes the Administrative Agent to
reimburse to the Credit-Linked L/C Issuer the Unreimbursed
Credit-Linked Amount (or the outstanding portion thereof) related to
such drawing on or after the sixth Business Day after such
Credit-Linked Honor Date, to the extent of such Credit-Linked Lender's
Pro Rata Share of the Unreimbursed Credit-Linked Amount, solely from
such Credit-Linked Lender's Pro Rata Share of the Credit-Linked
Deposits in the Credit-Linked Deposit Account, and each Credit-Linked
Lender hereby irrevocably authorizes the Administrative Agent to charge
the Credit-Linked Deposit Account for such purpose, in satisfaction of
such Credit-Linked Lender's reimbursement obligation arising with
respect to such drawing hereunder. Notwithstanding the foregoing,
following the occurrence of an Event of Default (including without
limitation the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the
United States), the Credit-Linked Lenders hereby agree that the
Administrative Agent may immediately reimburse to the Credit-Linked L/C
Issuer the Unreimbursed Credit-Linked Amount (or the outstanding
portion thereof) related to any drawing under any Credit-Linked Letter
of Credit on the Credit-Linked Honor Date with Dollars deposited in the
Credit-Linked Deposit Account in an amount equal to each such
Credit-Linked Lender's Pro Rata Share of such Unreimbursed
Credit-Linked Amount. Without limiting the generality of Section 11.01,
in charging the Credit-Linked Deposit Account or otherwise exercising
any rights of set-off with respect thereto, the Administrative Agent
acts as the agent of the Credit-Linked L/C Issuer. The amount of each
Credit-Linked Lender's Pro Rata Share of such Unreimbursed
Credit-Linked Amount (or portion thereof) which is paid to the
Credit-Linked L/C Issuer as set forth above shall be deemed to be a
Credit-Linked L/C Advance by such Credit-Linked Lender to the Borrower
hereunder. The outstanding principal amount of each Credit-Linked L/C
Advance, together with interest thereon as provided in Section 2.10,
shall be due and payable, in Dollars, on demand. Each Credit-Linked
Lender shall be subrogated to the rights and remedies of the
Credit-Linked L/C Issuer
against the Borrower and any Subsidiary liable under such Credit-Linked
Letter of Credit to the extent such Credit-Linked Lender has reimbursed
the Credit-Linked L/C Issuer as set forth in this Section 2.05(c)(ii).
The Credit-Linked L/C Issuer shall reasonably cooperate in exercising
and enforcing such rights and remedies as may be requested by the
Required Credit-Linked Lenders (and such cooperation shall be subject
to any applicable indemnification set forth in Section 10.07 or Section
11.05 of this Agreement). The Credit-Linked L/C Issuer shall have no
right to withdraw or set-off against monies on deposit in the
Credit-Linked Deposit Account other than as set forth in this Section
2.05(c)(ii).
(iii) The Credit-Linked Deposits shall be held by the
Administrative Agent in its name in the Credit-Linked Deposit Account
and no Person other than the Administrative Agent shall have a right of
withdrawal from the Credit-Linked Deposit Account nor any other right
or power with respect to the Credit-Linked Deposits or the
Credit-Linked Deposit Account. Notwithstanding anything in this
Agreement to the contrary, the sole funding obligation of each
Credit-Linked Lender in respect of its Credit-Linked Participation
shall be satisfied upon funding of its Credit-Linked Deposit on the
Closing Date.
(iv) Until a Credit-Linked Advance is funded pursuant to
this Section 2.05(c) to reimburse the Credit-Linked L/C Issuer for the
Unreimbursed Credit-Linked Amount in respect of any Credit-Linked
Letter of Credit, or such Unreimbursed Credit-Linked Amount is
converted to a Term Loan pursuant to Section 2.06, interest in respect
of each Credit-Linked Lender's Pro Rata Share of the Credit-Linked L/C
Borrowing in the amount of such Unreimbursed Credit-Linked Amount shall
be solely for the account of the Credit-Linked L/C Issuer.
(v) Except as expressly provided herein, each
Credit-Linked Lender's agreement to fund Credit-Linked L/C Advances, by
application of such Credit-Linked Lender's Pro Rata Share of the
Credit-Linked Deposits, and to reimburse the Credit-Linked L/C Issuer
for amounts drawn under Credit-Linked Letters of Credit issued by the
Credit-Linked L/C Issuer, as contemplated by this Section 2.05(c),
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 Credit-Linked Lender may have against
the Credit-Linked L/C Issuer, the Borrower, any Subsidiary or any other
Person for any reason whatsoever, (B) the occurrence or continuance of
a Default or Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing.
(vi) Notwithstanding that a Credit-Linked Letter of Credit
issued or outstanding hereunder is in support of any obligations of a
Subsidiary, the Borrower shall be obligated to reimburse the
Credit-Linked L/C Issuer hereunder for the full amount of any and all
drawings under such Credit-Linked Letter of Credit.
(d) Repayment of Participations.
(i) At any time after the Credit-Linked L/C Issuer has
made a payment under any Credit-Linked Letter of Credit and has
received from the Credit-Linked Deposit the proceeds of Credit-Linked
L/C Advances by the Credit-Linked Lenders in respect of such payment in
accordance with Section 2.05(c), if the Administrative Agent receives
for the account of the Credit-Linked L/C Issuer any payment in respect
of the related Unreimbursed Credit-Linked Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of
cash collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Credit-Linked Lender its
Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Credit-Linked
Lender's
Credit-Linked L/C Advance was outstanding) in Dollars and in the same
funds as those received by the Administrative Agent. If a Credit-Linked
L/C Borrowing has occurred hereunder, the Borrower shall repay the
Credit-Linked Unreimbursed Amount and interest thereon as provided in
Sections 2.05(c) and 2.10. Notwithstanding the foregoing, if the
Credit-Linked L/C Issuer shall have received from the Credit-Linked
Deposit the proceeds of Credit-Linked L/C Advances by the Credit-Linked
Lenders and thereafter shall receive any direct payment from the
Borrower in respect of a Credit-Linked L/C Advance, the Credit-Linked
L/C Issuer shall immediately pay the amount received to the
Administrative Agent for distribution to the Credit-Linked Lenders in
accordance with this Section 2.05(d).
(ii) If any payment received by the Administrative Agent
for the account of the Credit-Linked L/C Issuer pursuant to Section
2.05(d)(i) and distributed to the Credit-Linked Lenders by the
Administrative Agent is required to be returned under any of the
circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the Credit-Linked L/C Issuer), each
Credit-Linked Lender shall pay to the Administrative Agent for the
account of the Credit-Linked L/C Issuer its Pro Rata 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
Credit-Linked L/C Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the Credit-Linked L/C Issuer for each drawing under each Credit-Linked
Letter of Credit and to repay each Credit-Linked 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
Credit-Linked Letter of Credit, this Agreement, or any other Loan
Document;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such
Credit-Linked Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Credit-Linked
L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such
Credit-Linked 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 Credit-Linked 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 Credit-Linked Letter of Credit;
(iv) any payment by the Credit-Linked L/C Issuer under
such Credit-Linked Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such
Credit-Linked Letter of Credit; or any payment made by the
Credit-Linked L/C Issuer under such Credit-Linked 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 Credit-Linked Letter of Credit,
including any arising in connection with any proceeding under any
Debtor Relief 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 Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Credit-Linked Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with the Borrower's instructions or other
irregularity, the Borrower will promptly notify the Credit-Linked L/C Issuer.
The Borrower shall be conclusively deemed to have waived any such claim against
the Credit-Linked L/C Issuer and its correspondents unless such notice is given
as aforesaid.
(f) Role of Credit-Linked L/C Issuer. Each Credit-Linked Lender
and the Borrower agree that, in paying any drawing under a Credit-Linked Letter
of Credit, the Credit-Linked L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents
expressly required by the Credit-Linked 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 Credit-Linked
L/C Issuer, any Issuer-Related Person nor any of the respective correspondents,
participants or assignees of the Credit-Linked L/C Issuer or any Issuer-Related
Person 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 Required Lenders
or the Required Credit-Linked 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 Credit-Linked Letter of Credit or Request for Credit
Extension. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Credit-Linked Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower'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 Credit-Linked L/C Issuer, any Issuer-Related Person, nor any of the
respective correspondents, participants or assignees of the Credit-Linked L/C
Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.05(e); provided, however, that anything in
such clauses to the contrary notwithstanding, the Borrower may have a claim
against the Credit-Linked L/C Issuer, and the Credit-Linked L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the Credit-Linked L/C Issuer's willful
misconduct or gross negligence or the Credit-Linked L/C Issuer's willful failure
to pay under any Credit-Linked 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 Credit-Linked Letter of Credit. In furtherance and not
in limitation of the foregoing, the Credit-Linked L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the Credit-Linked L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Credit-Linked Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the Credit-Linked L/C Issuer and the Borrower when a Credit-Linked
Letter of Credit is issued, (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 Credit-Linked Letter of Credit, and (ii)
the rules of the UCP at the time of issuance shall apply to each commercial
Credit-Linked Letter of Credit.
(h) Credit-Linked L/C Issuer Documents. In the event of any
conflict between the terms hereof and the terms of any Credit-Linked Letter of
Credit Application, the terms hereof shall control.
(i) Interest on Credit-Linked Deposit; Repayment of Credit-Linked
Deposit.
(i) The Administrative Agent hereby agrees to cause Bank
of America to pay interest to the Administrative Agent, as holder of
the Credit-Linked Deposit Account, and the Administrative Agent, as
holder of the Credit-Linked Deposit Account, agrees to distribute to
each Credit-Linked Lender, from such interest payments received from
Bank of America, such Credit-Linked Lender's Pro Rata Share of the
interest earned on the outstanding amount of the Credit-Linked Deposits
in the Credit-Linked Deposit Account. Such interest will be distributed
to the Credit-Linked Lenders by the Administrative Agent quarterly in
arrears on the first Business Day following the end of each Interest
Period relating to the Credit-Linked Deposits. The Administrative Agent
hereby agrees that the Credit-Linked Deposits in the Credit-Linked
Deposit Account shall earn interest at the rate per annum at least
equal to the LIBO Rate (as defined in the Money Market Account
Agreement) (the "Benchmark Rate") minus fifteen (15) basis points. In
addition to the foregoing payments by the Administrative Agent, the
Borrower agrees to make payments to the Credit-Linked Lenders quarterly
in arrears when the Credit-Linked Facility Fees are payable pursuant to
Section 2.05(k) in an amount equal to the shortfall between the rate of
interest actually earned on the Credit-Linked Deposits and the
Benchmark Rate (which shortfall shall in no event exceed fifteen (15)
basis points). The Administrative Agent shall compute all amounts due
under this Section 2.05(i) and shall notify the Borrower and such
Credit-Linked Lender of each such amount due. Notwithstanding the
foregoing, to the extent the Credit-Linked Deposits earn interest in
excess of the Benchmark Rate for any Interest Period the Administrative
Agent shall return such excess to the Borrower.
(ii) Subject to, and to the extent of, the Borrower's
compliance with the cash-collateralization requirements set forth in
Section 2.05(j), the Administrative Agent shall distribute the
aggregate amount of any remaining Credit-Linked Deposits to the
Credit-Linked Lenders on the Maturity Date to the extent of the amount
credited to the Credit-Linked Deposit Account. The Credit-Linked
Deposit Account is a deposit account in the name of the Administrative
Agent under its sole dominion and control, and held by it subject to
the terms and conditions of this Agreement. No Credit-Linked Lender,
whether upon the receivership or liquidation of such Credit-Linked
Lender or otherwise, shall be entitled to its Credit-Linked Deposit
other than as expressly provided in this Agreement.
(iii) The Borrower shall have no right, title or interest
in or to the Credit-Linked Deposits or the Credit-Linked Deposit
Account and no obligations with respect thereto, it being acknowledged
and agreed by the parties hereto that the making of the Credit-Linked
Deposits by the Credit-Linked Lenders, the deposit by the
Administrative Agent of the Credit-Linked Deposits in the Credit-Linked
Deposit Account, the provisions of this Section 2.05(i) and the
application of the Credit-Linked Deposits in the manner contemplated by
Section 2.05(c) constitute agreements among the Administrative Agent,
the Credit-Linked L/C Issuer and each Credit-Linked Lender in respect
of the funding obligations of each Credit-Linked Lender in respect of
its Credit-Linked Participation in Credit-Linked Letters of Credit, and
do not constitute any loan or extension of credit to the Borrower.
(j) Cash Collateral. Upon the request of the Administrative Agent,
if as of the Credit-Linked Expiration Date, any Credit-Linked Letter of Credit
may for any reason remain outstanding and partially or wholly undrawn, the
Borrower shall immediately Cash Collateralize the then Outstanding Amount of
such Credit-Linked L/C Obligations (in an amount equal to such Outstanding
Amount determined as of the Credit-Linked Expiration Date). The Borrower hereby
grants to the Administrative Agent, for the benefit of the Credit-Linked L/C
Issuer and the Credit-Linked Lenders, a security interest in all such cash,
deposit accounts and all balances in the applicable cash collateral accounts and
all proceeds therein. Such cash collateral shall be maintained in blocked
deposit accounts at Bank of America.
(k) Credit-Linked Facility Fee. The Borrower shall pay to the
Administrative Agent for the account of each Credit-Linked Lender in accordance
with its Pro Rata Share, a fee (the "Credit-Linked Facility Fee") equal to 3.00%
times the actual daily amount of such Credit-Linked Lender's Credit-Linked
Deposit. The Credit-Linked Facility Fee shall accrue effective as of the Closing
Date and shall be calculated quarterly in arrears by the Administrative Agent.
The Credit-Linked Facility Fee shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date and on the
Credit-Linked Expiration Date and thereafter on demand; provided that, in
connection with any reduction of the Aggregate Credit-Linked Commitments
pursuant to Section 2.08(b), the accrued Credit-Linked Facility Fee calculated
for the period ending on such date shall also be paid on the date of such
reduction, and the following quarterly payment shall be calculated on the basis
of the period from such reduction date to such quarterly payment date. The
Credit-Linked Facility Fee shall accrue at all times, including at any time
during which one or more of the conditions in Article V is not met.
(l) Credit-Linked Fronting Fee and Processing Charges. The
Borrower shall pay directly to the Credit-Linked L/C Issuer for its own account
(the "Credit-Linked Fronting Fee") (i) a one time fronting fee for each
commercial Credit-Linked Letter of Credit equal to 1/8 of 1% times the amount of
such commercial Credit-Linked Letter of Credit, due and payable at the time of
issuance and (ii) a fronting fee with respect to each standby Credit-Linked
Letter of Credit in an amount equal to 1/8 of 1% per annum on the daily maximum
amount available to be drawn thereunder (whether or not such maximum amount is
then in effect under such Credit-Linked Letter of Credit), due and payable
quarterly in arrears on the Business Day immediately following the last Business
Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such standby Credit-Linked Letter of Credit,
and on the Credit-Linked Expiration Date. In addition, the Borrower shall pay
directly to the Credit-Linked L/C Issuer for its own account the customary and
standard issuance, commission, presentation, amendment and other processing
fees, and other standard costs and charges (if any), of the Credit-Linked L/C
Issuer or any Affiliate of the Credit-Linked L/C Issuer, relating to its
Credit-Linked Letters of Credit as from time to time in effect and agreed upon
between the Borrower and the Credit-Linked L/C Issuer. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(m) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation Section 2.05(a), a Credit-Linked Letter of Credit issued
hereunder shall upon the request of the Borrower be issued for the account of
any Subsidiary of the Borrower, provided that notwithstanding such request, the
Borrower shall be the actual account party for all purposes of this Agreement
for such Credit-Linked Letter of Credit and such request shall not affect the
Borrower's reimbursement obligations hereunder with respect to such
Credit-Linked Letter of Credit.
2.06 Conversion to Funded Term Loans; Conversion to Credit-Linked Deposits.
(a) Term Loans.
(i) Subject to the terms and conditions set forth herein
(including satisfaction of the conditions precedent specified in Sections 5.02
and 5.03), each Credit-Linked Lender severally agrees (A) to make loans (each
such loan, a "Term Loan") to the Borrower from time to time (but not more than
one time per fiscal quarter (and at such additional times as approved by the
Administrative Agent in its sole discretion)) on any Business Day during the
Availability Period solely with the Dollars funded by each such Credit-Linked
Lender to the Credit-Linked Deposit pursuant to Section 2.01(b) in an aggregate
principal amount up to the excess of (I) the principal amount of the Total
Credit-Linked Deposit minus (II) the Outstanding Amount of all Credit-Linked L/C
Obligations (the amount of such excess being the
"Unused Amount"), (B) to make Term Loans to the Borrower from time to time on
any Business Day solely with the Dollars funded by each such Credit-Linked
Lender to the Credit-Linked Deposit pursuant to Section 2.01(b) in an aggregate
principal amount up to the amount of any Credit-Linked L/C Borrowing then
outstanding by converting such Credit-Linked L/C Borrowing to Term Loans and (C)
to make Term Loans to the Borrower from time to time on any Business Day solely
with the Dollars funded by each such Credit-Linked Lender to the Credit-Linked
Deposit pursuant to Section 2.01(b) in an aggregate principal amount up to the
amount of any Credit-Linked L/C Advances then outstanding by converting such
Credit Linked L/C Advances to Term Loans; in each case in accordance with the
procedures set forth in this Section 2.06(a); provided, however, that after
giving effect to the making of any such Term Loan pursuant to this Section
2.06(a), (x) the aggregate Outstanding Amount of the Credit-Linked Obligations
shall not exceed the Aggregate Credit-Linked Commitments or the Total
Credit-Linked Deposit and (y) the Pro Rata Share of any Credit-Linked Lender of
the aggregate Outstanding Amount of the Credit-Linked Obligations shall not
exceed such Credit-Linked Lender's Credit-Linked Commitment. Any Term Loans made
under this Section 2.06(a) and subsequently repaid or prepaid may not be
reborrowed, except to the extent any such Term Loan is repaid pursuant to the
provisions of Section 2.06(b).
(ii) The Borrower may irrevocably request the making of one or more
Term Loans in an aggregate amount up to the Unused Amount or in an aggregate
amount up to the anticipated drawing on a Credit-Linked Letter of Credit from
the proceeds of Credit-Linked Deposits, or in an aggregate amount up to the
aggregate amount of Credit-Linked L/C Advances then outstanding by converting
such Credit-Linked L/C Advances to Term Loans, as applicable, by delivering a
Loan Notice therefor to the Administrative Agent, appropriately completed and
signed by a Responsible Officer of the Borrower, not later than three (3)
Business Days prior to the proposed date of making of the Term Loans; provided
that the Borrower shall pay the amounts, if any, payable under Section 3.05; and
provided further that the minimum aggregate amount of Term Loans made on any
date shall be $5,000,000 (or such lesser amount agreed to by the Administrative
Agent). Each Loan Notice delivered pursuant to this Section shall specify (A)
the requested date of the borrowing (which shall be a Business Day), (B) the
principal amount of the Term Loans to be borrowed, (C) the Type of Term Loans to
be borrowed and (D) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Loan in a Loan
Notice, then the applicable Term Loans shall be made as Base Rate Loans. If the
Borrower requests a borrowing of Eurodollar Rate Loans in any Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
(iii) Following receipt of a Loan Notice pursuant to Section
2.06(a)(ii), the Administrative Agent shall promptly notify each Credit-Linked
Lender of its Pro Rata Share of the applicable Term Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Credit-Linked Lender of the details of
any automatic conversion to Base Rate Loans as described in the preceding
subsection. Upon satisfaction of the applicable conditions set forth in Sections
5.02 and 5.03, the Administrative Agent shall (A) in the case of Term Loans made
pursuant to Section 2.06(a)(i)(A), debit the Credit-Linked Deposit Account in an
amount equal to the aggregate amount of the proposed Term Loans (but not
exceeding the Unused Amount) and shall make such funds available to the Borrower
either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transferring such funds, in
each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower, (B) in the case of Term Loans made
pursuant to Section 2.06(a)(i)(B), debit the Credit-Linked Deposit Account in an
amount equal to the aggregate amount of the proposed Term Loans and transfer
such funds to the Credit-Linked L/C Issuer in reimbursement of the applicable
drawing on a Credit-Linked Letter of Credit, and (C) in the case of Term Loans
made pursuant to Section 2.06(a)(i)(C) record in its books and records and on
the Register the conversion of the applicable Credit-Linked L/C Advances into
Term Loans, which credit or transfer or recordation, as applicable, shall be
deemed to be
the making of the Term Loans by the Credit-Linked Lenders hereunder, and such
date shall be the "Term Loan Issuance Date" (and the Administrative Agent shall
forthwith deliver a notice to each Credit-Linked Lender informing such
Credit-Linked Lender of the applicable Term Loan Issuance Date). Each
Credit-Linked Lender hereby irrevocably authorizes the Administrative Agent to
charge the Credit-Linked Deposit Account for such purpose. No Credit-Linked
Lender shall have any obligation to make Term Loans to the Borrower other than
from the proceeds of its Credit-Linked Deposits.
(iv) Each conversion of Term Loans from one Type to the other, and
each continuation of Term Loans that are Eurodollar Rate Loans shall be made
upon the Borrower's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. three (3) Business Days prior to the requested
date of any conversion to or continuation of, Term Loans that are Eurodollar
Rate Loans or any conversion of Term Loans that are Eurodollar Rate Loans to
Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section
2.06(a)(iv) must be confirmed promptly by delivery to the Administrative Agent
of a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a conversion of Term Loans from
one Type to the other or a continuation of Term Loans that are Eurodollar Rate
Loans, (ii) the requested date of the conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Term Loans
to be converted or continued, (iv) the Type of Term Loans to which existing Term
Loans are to be converted, if applicable, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Term Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a conversion to, or continuation of Eurodollar
Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.
(v) Except as otherwise provided herein, a Term Loan that is a
Eurodollar Rate Loan may be continued or converted only on the last day of the
Interest Period for such Eurodollar Rate Loan. During the existence of a Default
or Event of Default, no Term Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required
Credit-Linked Lenders, and the Required Credit-Linked Lenders may demand that
any or all of the then outstanding Eurodollar Rate Loans be converted
immediately to Base Rate Loans.
(vi) The Administrative Agent shall promptly notify the Borrower
and the Credit-Linked Lenders of the interest rate applicable to any Interest
Period for Term Loans that are Eurodollar Rate Loans upon determination of such
interest rate. The determination of the Eurodollar Rate by the Administrative
Agent shall be conclusive in the absence of manifest error. At any time that
Term Loans that are Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Credit-Linked Lenders of any change in Bank of
America's prime rate used in determining the Base Rate promptly following the
public announcement of such change.
(vii) After giving effect to all borrowings of Term Loans, all
conversions of Term Loans from one Type to the other, and all continuations of
Term Loans as the same Type, there shall not be more than 5 Interest Periods in
effect with respect to Term Loans.
(b) Conversion Back to Credit-Linked Deposits.
(i) Subject to the terms and conditions set forth herein, the
Borrower may repay all or any portion of the outstanding amount of the Term
Loans then in existence by paying Dollars to the Administrative Agent for
deposit by the Administrative Agent of such Dollars in the Credit-Linked
Deposit Account in an amount equal to the Term Loans being repaid.
(ii) The Borrower may prepay the Term Loans in the manner provided
for in Section 2.06(b)(i), by delivering a Request for Credit-Linked Deposit to
the Administrative Agent, appropriately completed and signed by a Responsible
Officer of the Borrower, not later than three (3) Business Days prior to the
date of proposed prepayment; provided that the Borrower shall pay the amounts,
if any, payable under Section 3.05; and provided, further that the minimum
aggregate amount of Term Loans prepaid on any date pursuant to Section
2.06(b)(i) shall be $5,000,000.
(iii) Following receipt of any Request for Credit-Linked Deposit,
the Administrative Agent shall promptly notify each Credit-Linked Lender of its
Pro Rata Share of the Term Loan being prepaid. Upon the satisfaction of the
procedures contained in this Section 2.06(b), the Borrower shall make the
prepayment of the applicable Term Loans to the Administrative Agent, and the
Administrative Agent shall deposit such proceeds received in the Credit-Linked
Deposit Account. Such proceeds being paid back to the Credit-Linked Deposit
Account shall be credited to each Credit-Linked Lender according to its Pro Rata
Share. Subject to the other terms and conditions of this Agreement, any amount
prepaid by the Borrower pursuant to this Section 2.06(b) may be reborrowed.
2.07 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Revolving Loans. The Borrower may, upon notice from
the Borrower to the Administrative Agent, at any time or from time to
time voluntarily prepay Revolving Loans in whole or in part without
premium or penalty; provided that (A) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (1) three (3)
Business Days prior to any date of prepayment of Eurodollar Rate Loans
and (2) on the date of prepayment of Base Rate Loans; (B) any such
prepayment of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if
less, the entire principal amount thereof then outstanding) and (C) any
prepayment of Base Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof (or, if
less, the entire principal amount thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment and the
Type(s) of Revolving Loans to be prepaid. The Administrative Agent will
promptly notify each Lender with a Revolving Commitment of its receipt
of each such notice, and of the amount of such Lender's Pro Rata Share
of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the
Revolving Loans of the Lenders in accordance with their respective Pro
Rata Shares.
(ii) Swing Line Loans. The Borrower may, upon notice to
the Swing Line Lender (with a copy to the Administrative Agent), at any
time or from time to time, voluntarily prepay Swing Line Loans in whole
or in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of $250,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire
principal thereof then outstanding). Each such notice shall specify the
date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date
specified therein. Notwithstanding the foregoing, however, in the event
that an "auto borrow" or "zero
balance" or similar arrangement shall then be in place with the Swing
Line Lender, the Borrower may make voluntary prepayments on Swing Line
Loans pursuant to such alternative notice arrangements and in such
minimum amounts, if any, provided thereunder or in connection
therewith.
(iii) Term Loans. In addition to prepaying the Term Loans
by paying Dollars to the Administrative Agent for deposit in the
Credit-Linked Deposit Account pursuant to Section 2.06(b), the Borrower
may, at its option, upon notice to the Administrative Agent as provided
below, prepay on any Business Day all, or from time to time any part
of, the Term Loans (subject to the limitations sets forth below);
provided that (i) any such notice shall be received by the
Administrative Agent not later than 1:00 p.m., two (2) Business Days
prior to the date of prepayment, and (ii) any such partial prepayment
shall be in an aggregate amount of $1,000,000 or any whole multiple of
$1,000,000 in excess thereof, or such lesser amount as would reduce the
Term Loans to $0. Such notice shall specify the proposed effective date
of such prepayment, the aggregate principal amount of the Term Loans to
be prepaid on such date and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, which shall
be the last day of the Interest Period therefor. The Administrative
Agent will promptly notify the Credit-Linked Lenders of any such notice
of prepayment of the Term Loans. Once prepaid in accordance with this
Section, such Term Loans may not be reborrowed. Upon any such
prepayment, the Administrative Agent shall promptly remit to each
Credit-Linked Lender its Pro Rata Share of the amount of the prepayment
of the Term Loans.
(b) Mandatory Prepayments of Loans.
(i) Revolving Commitments. If for any reason the Total
Revolving Outstandings at any time exceed the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay
Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.07(b)(i)
unless after the prepayment in full of the Revolving Loans and Swing
Line Loans the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect.
(ii) Credit-Linked Commitments. If for any reason the
Outstanding Amount of (A) all Credit-Linked Letters of Credit and (B)
the aggregate of the Unreimbursed Credit-Linked Amounts exceeds the
Total Credit-Linked Deposit, the Borrower shall immediately pay the
Unreimbursed Credit-Linked Amounts and/or Cash Collateralize the
Credit-Linked Letters of Credit in an aggregate amount equal to such
excess.
(iii) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to Section 2.07(b)(i) shall be applied to
Revolving Loans and Swing Line Loans and (after all Revolving Loans and
all Swing Line Loans have been repaid) to Cash Collateralize L/C
Obligations. All amounts required to be paid pursuant to Section
2.07(b)(ii) shall be applied to the Unreimbursed Credit-Linked Amounts
and (after all Unreimbursed Credit-Linked Amounts have been repaid) to
Cash Collateralize the Credit-Linked Letters of Credit.
Within the parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurodollar Rate
Loans in direct order of Interest Period maturities. All prepayments
under this Section 2.07(b) shall be subject to Section 3.05, but
otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of
prepayment.
2.08 Termination or Reduction of Commitments.
(a) Optional Reductions of Revolving Commitments. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving
Commitments to an amount not less than the Outstanding Amount of Revolving
Loans, Swing Line Loans and L/C Obligations; provided that (i) any such notice
shall be received by the Administrative Agent not later than 12:00 noon five (5)
Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $5,000,000 or any whole
multiple of $1,000,000 in excess thereof and (iii) if, after giving effect to
any reduction of the Aggregate Revolving Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Revolving Commitments, such sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Revolving
Commitments. Any reduction of the Aggregate Revolving Commitments shall be
applied to the Revolving Commitment of each Lender according to its Pro Rata
Share. All fees accrued with respect thereto until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination.
(b) Optional Reduction of Credit-Linked Commitments. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate
Credit-Linked Commitments, or from time to time permanently reduce the Aggregate
Credit-Linked Commitments to an amount not less than the Credit-Linked
Obligations; provided that (i) any such notice shall be received by the
Administrative Agent not later than 12:00 noon five (5) Business Days prior to
the date of termination or reduction, (ii) any such partial reduction shall be
in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof, or such lesser amount as would reduce the Aggregate
Credit-Linked Commitments to zero and (iii) the Borrower shall not direct the
Administrative Agent to reduce the Aggregate Credit-Linked Commitments if, after
giving effect to such reduction, the aggregate Credit-Linked Obligations would
exceed the Aggregate Credit-Linked Commitments. The Administrative Agent shall
promptly notify the Credit-Linked Lenders of any such notice of termination or
reduction of the Aggregate Credit-Linked Commitments. Any such reduction or
termination of the Aggregate Credit-Linked Commitments shall be applied to the
Credit-Linked Commitment of each Lender according to its Pro Rata Share, and the
Administrative Agent shall return all amounts in the Credit-Linked Deposit in
the amount of such reduction or termination to the Credit-Linked Lenders in
accordance with their respective Pro Rata Share. Once reduced in accordance with
this Section 2.08(b), the Credit-Linked Commitments may not be increased. All
fees accrued with respect thereto until the effective date of any termination or
reduction of the Aggregate Credit-Linked Commitments shall be paid on the
effective date of such termination or reduction. Upon any such termination or
reduction, the Administrative Agent shall promptly remit to each Credit-Linked
Lender Dollars in the Credit-Linked Deposit Account equal to its Pro Rata Share
of termination or reduction of the Aggregate Credit-Linked Commitments.
(c) Mandatory Reductions of Credit-Linked Deposits and Term Loans.
The Borrower shall repay the Term Loans and/or permanently reduce the Aggregate
Credit-Linked Commitments pursuant to Section 2.08(b) on December 31 of each
fiscal year such that the aggregate of the Credit-Linked Deposits and the Term
Loans then outstanding shall not exceed the following amounts as of the
following dates:
2.09 Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
(b) Swing Line Loans. The Borrower shall repay each Swing Line
Loan on the earlier to occur of (i) demand by the Swing Line Lender and (ii) the
Maturity Date.
(c) Term Loans. The Borrower shall repay to the Lenders on the
Maturity Date the outstanding principal amount of all Term Loans outstanding on
such date, unless accelerated sooner pursuant to Section 9.02.
2.10 Interest.
(a) Revolving Loans and Swing Line Loans.
(i) Subject to the provisions of subsection (ii) below,
(A) each Revolving Loan that is a Eurodollar Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the sum of (I) the Eurodollar Rate
for such Interest Period plus (II) the Applicable Rate; (B) each
Revolving Loan that is a Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate;
and (C) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate
per annum equal to the Base Rate plus the Applicable Rate.
(ii) Interest on each Revolving Loan and Swing Line Loan
shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein.
Interest hereunder shall be due and payable in accordance with the
terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(b) Term Loans.
(i) Subject to the provisions of subsection (ii) below,
(A) each Term Loan that is a Eurodollar Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the sum of (I) the Eurodollar Rate for such Interest
Period plus (II) 3.00% and (B) each Term Loan that is a Base Rate Loan
shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base
Rate plus 3.00%.
(ii) Interest on each Term Loan shall be due and payable
in arrears on each Interest Payment Date applicable thereto and at such
other times as may be specified herein. Interest hereunder shall be due
and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under
any Debtor Relief Law.
(c) Interest on Credit-Linked L/C Borrowings and Credit-Linked L/C
Advances.
(i) Each Credit-Linked L/C Borrowing shall bear interest
on the outstanding principal amount thereof (A) from and including the
applicable Credit-Linked L/C Borrowing date to and excluding the date
six (6) Business Days thereafter at an interest rate per annum equal at
all times to the Base Rate plus 3.00%, and (B) from and including the
sixth Business Day after the applicable Credit-Linked L/C Borrowing
date at an interest rate per annum equal at all times to the Default
Rate.
(ii) Each Credit-Linked L/C Advance shall bear interest on
the outstanding principal amount thereof for each Interest Period at a
rate per annum equal to the sum of (A) the Eurodollar Rate for such
Interest Period plus (B) 3.00%.
(d) Default Rate. Upon the occurrence and during the continuation
of an Event of Default, the Borrower shall pay interest on the principal amount
of all outstanding Obligations at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Laws.
2.11 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.03 and subsections (k) and (l) of Section 2.05:
(a) Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with
its Pro Rata Share, a commitment fee equal to the product of (i) the
Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of
the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur
after the Closing Date, and on the Maturity Date. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect. For
purposes of clarification, Swing Line Loans shall not be considered
outstanding for purposes of determining the unused portion of the
Aggregate Revolving Commitments.
(b) Fee Letter. The Borrower shall pay to BAS and the
Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter. Such fees shall
be fully earned when paid and shall be non-refundable for any reason
whatsoever.
2.12 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall
accrue on each Credit-Linked L/C Advance or Loan for the day on which the
Credit-Linked L/C
Advance or Loan is made, and shall not accrue on a Credit-Linked L/C Advance or
Loan, or any portion thereof, for the day on which the Credit-Linked L/C
Advance, Loan or such portion is paid, provided that any Credit-Linked L/C
Advance or Loan that is repaid on the same day on which it is made shall bear
interest for one day.
2.13 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a promissory note,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each such promissory note shall (i) in the case of Revolving Loans, be
in the form of Exhibit E-1 (a "Revolving Note") and (ii) in the case of Swing
Line Loans, be in the form of Exhibit E-2 (a "Swing Line Note"). Furthermore,
the Credit-Linked Deposit of, and the obligations of the Borrower to pay
Credit-Linked L/C Advances and Term Loans to, each Credit-Linked Lender shall be
evidenced by a Credit-Linked Note in the form of Exhibit E-3 (a "Credit-Linked
Note") executed by the Borrower. Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error.
2.14 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
the L/C Issuer or the Credit-Linked L/C Issuer, as the case may be, its
applicable share or each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender's Lending Office. All payments received by the Administrative Agent
after 2:00 p.m. shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, Credit-Linked L/C Borrowings, interest and fees
then due hereunder, such funds shall be applied (i) first, toward costs and
expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender, (ii) second, toward
repayment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (iii) third, toward repayment of principal, L/C Borrowings and
Credit-Linked L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal, L/C Borrowings and
Credit-Linked L/C Borrowings then due to such parties.
(d) Unless the Borrower or 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 the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, 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:
(i) if the Borrower 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 repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect; and
(ii) 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 Borrower 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 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 Borrower, and the Borrower
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 Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (d) shall be
conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article V are not satisfied or waived in
accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without
interest.
(f) The obligations of the Lenders hereunder to make Loans, to
fund participations in Letters of Credit and Swing Line Loans and to fund
participations in Credit-Linked Letters of Credit are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation in
Letters of
Credit or Swing Line Loans or to fund participations in Credit-Linked Letters of
Credit 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 Loan, purchase
its participation in Letters of Credit or Swing Line Loans or purchase
participations in Credit-Linked Letters of Credit.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan or the Credit-Linked Deposit in any particular
place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan or the Credit-Linked Deposit in
any particular place or manner.
2.15 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations, Credit-Linked L/C Obligations or in Swing Line Loans held by it
(but not including any amounts applied by the Swing Line Lender to outstanding
Swing Line Loans), any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share
(or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations, Credit-Linked L/C
Obligations or Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in respect
of such Loans or such participations, as the case may be, pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender under any of the circumstances
described in Section 11.06 (including pursuant to any settlement entered into by
the purchasing Lender in its discretion), 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 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, without further
interest thereon. The Borrower 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 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower 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. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to Section 11.15 and except as provided in this
Section 3.01, any and all payments by any Loan Party to or for the account of
the Administrative Agent, any Issuer or any Lender under any Loan Document shall
be made free and clear of and without deduction for any and all present
or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of the Administrative Agent, each Issuer and each Lender,
taxes imposed on or measured by its overall net income or overall gross
receipts, and franchise taxes and similar taxes imposed on it, by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent, such Issuer or such Lender, as the case may be, is
organized or maintains a lending office or maintained a lending office from
which Credit Extensions were made (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If any Loan Party shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent, any Issuer or any
Lender, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section), each of the Administrative Agent, such Issuer and
such Lender receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Loan Party shall make such deductions,
(iii) such Loan Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Laws, and
(iv) within thirty days after the date of such payment, such Loan Party shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify the Administrative Agent,
each Issuer and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent, such
Issuer and such Lender and (ii) any liability (including additions to tax,
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided the
Administrative Agent, such Issuer and such Lender, as the case may be, provides
the Borrower with a written record therefor setting forth in reasonable detail
the basis and calculation of such amounts. Payment under this subsection (c)
shall be made within thirty days after the date the Lender, the Issuer or the
Administrative Agent makes a demand therefor.
(d) Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 3.01(a) or Section 3.01(c) with respect
to such Lender, it will, if requested by the Borrower, use reasonable commercial
efforts (subject to such Lender's overall internal policies of general
application) to designate another lending office for any Loan, Letter of Credit
or Credit-Linked Letter of Credit affected by such event with the object of
avoiding the consequences of such event; provided that such designation is made
on terms that, in the reasonable judgment of such Lender, cause such Lender and
its lending office(s) to suffer no material economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 3.01(c) shall
affect or postpone any of the Obligations of the Borrower or the rights of such
Lender pursuant to Section 3.01(a) and Section 3.01(c).
(e) Notwithstanding any provision contained herein to the
contrary, any indemnity with respect to taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges imposed by any
Governmental Authority on any payment made by any Loan Party to or for the
account of the Administrative Agent, any Issuer or any Lender under any Loan
Document, or any liabilities with
respect thereto, shall be governed solely and exclusively by this Section 3.01
and Section 11.15.
3.02 Illegality.
If any Lender reasonably determines that any Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Eurodollar
Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Administrative Agent reasonably determines that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Base
Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Loan, or that the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Loan, the Administrative Agent
will promptly notify the Borrower and all Lenders. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke (without regard to any notice period that may otherwise be
required hereunder) any pending request for a Borrowing, conversion or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender reasonably determines that as a result of the
introduction of or any change in or in the interpretation of any Law, or such
Lender's compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or (as the case may be) issuing or participating in Letters of Credit, or
a reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.01 and Section 11.15 shall govern), (ii) changes in
the basis of taxation of overall net income, overall gross income, franchise
taxes or similar taxes by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office or maintained a lending office from which
Credit Extensions were made, and (iii) reserve requirements utilized, as to
Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then from
time to time upon demand of such Lender setting forth in reasonable detail such
increased costs (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender reasonably determines that the introduction of
any Law regarding capital adequacy or any change therein or in the
interpretation thereof, or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital), then
from time to time upon demand of such Lender setting forth in reasonable detail
such additional amounts (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
(c) The Borrower shall not be required to compensate a Lender
pursuant to Section 3.04(a) or (b) for any such increased cost or reduction
incurred more than one hundred eighty (180) days prior to the date that such
Lender demands, or notifies the Borrower of its intention to demand,
compensation therefor; provided that, if the circumstance giving rise to such
increased cost or reduction is retroactive, then such 180-day period referred to
above shall be extended to include the period of retroactive effect thereof.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or reasonable expense actually
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment
of any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any reduction of the Total Credit-Linked Deposits on
a day other than the last day of an Interest Period therefor;
(c) any failure by the Borrower (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow, continue
or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or
(d) any assignment of a Eurodollar Rate Loan on a day
other than the last day of the Interest Period therefor as a result of
a request by the Borrower pursuant to Section 11.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender
claiming compensation under this Article III and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under
Section 3.01 or 3.04, the Borrower may replace such Lender in accordance with
Section 11.16.
3.07 Survival.
All of the Borrower's obligations under this Article III shall survive
the termination of the Aggregate Revolving Commitments, the termination of the
Credit-Linked Commitments and the Credit-Linked Deposits and repayment of all
other Obligations hereunder.
ARTICLE IV
GUARANTY
4.01 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Obligations are not paid
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Loan Documents or Swap Contracts, the obligations of each
Guarantor under this Agreement and the other Loan Documents shall be limited to
an aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws or any comparable
provisions of any applicable state law.
4.02 Obligations Unconditional.
The obligations of the Guarantors under Section 4.01 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Loan Documents or Swap
Contracts, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid
under this Article IV until such time as the Obligations have been paid in full
and the Commitments have expired or terminated. Without limiting the generality
of the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(a) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of
any of the Loan Documents, any Swap Contract between any Loan Party and
any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents or such Swap Contracts
shall be done or omitted;
(c) the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified, supplemented
or amended in any respect, or any right under any of the Loan
Documents, any Swap Contract between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts shall be
waived or any other guarantee of any of the Obligations or any security
therefor shall be released, impaired or exchanged in whole or in part
or otherwise dealt with;
(d) any Lien granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of
the Obligations shall fail to attach or be perfected; or
(e) any of the Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents, any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement.
The obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers.
Each Guarantor further agrees that such Guarantor shall have no right
of recourse to security for the Obligations, except through the exercise of
rights of subrogation pursuant to Section 4.02 and through the exercise of
rights of contribution pursuant to Section 4.06.
4.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge and agree that their
obligations hereunder are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.06 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.06 shall be
subordinate and subject in right of payment to the Obligations until such time
as the Obligations have been paid in full and the Commitments have expired or
terminated, and none of the Guarantors shall exercise any right or remedy under
this Section 4.06 against any other Guarantor until such Obligations have been
paid in full and the Commitments have expired or terminated. For purposes of
this Section 4.06, (a) "Excess Payment" shall mean the amount paid by any
Guarantor in excess of its Ratable Share of any Guaranteed Obligations; (b)
"Ratable Share" shall mean, for any Guarantor in respect of any payment of
Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Loan Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of the Loan Parties hereunder) of the Loan
Parties; provided, however, that, for purposes of calculating the Ratable Shares
of the Guarantors in respect of any payment of Obligations, any Guarantor that
became a Guarantor subsequent to the date of any such payment shall be deemed to
have been a Guarantor on the date of such payment and the financial information
for such Guarantor as of the date such Guarantor became a Guarantor shall be
utilized for such Guarantor in connection with such payment; (c) "Contribution
Share" shall mean, for any Guarantor in respect of any Excess Payment made by
any other Guarantor, the ratio (expressed as a percentage) as of the date of
such Excess Payment of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Guarantor (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Loan Parties other than
the maker of such Excess Payment exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Loan Parties) of the Loan
Parties other than the maker of such Excess Payment; provided, however, that,
for purposes of calculating the Contribution Shares of the Guarantors in respect
of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment; and
(d) "Guaranteed Obligations" shall mean the Obligations guaranteed by the
Guarantors pursuant to this Article IV. This Section 4.06 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under Law against the Borrower in respect of any payment
of Guaranteed Obligations. Notwithstanding the foregoing, all rights of
contribution against any Guarantor shall terminate from and after such time, if
ever, that such Guarantor shall be relieved of its obligations in accordance
with Section 10.11.
4.07 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension.
The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent
of executed counterparts of this Agreement and the other Loan
Documents, each properly executed by a Responsible Officer of the
signing Loan Party and, in the case of this Agreement, by each Lender.
(b) Opinions of Counsel. Receipt by the Administrative
Agent of favorable opinions of general counsel of the Loan Parties and
legal counsel to the Loan Parties, addressed to the Administrative
Agent and each Lender, dated as of the Closing Date, and in form and
substance reasonably satisfactory to the Administrative Agent.
(c) Financial Statements. The Administrative Agent shall
have received:
(i) consolidated financial statements of the
Borrower and its Subsidiaries for the fiscal years ended
December 31, 2000, December 31, 2001 and December 31, 2002,
including balance sheets and income and cash flow statements,
in each case audited by independent public accountants of
recognized national standing and prepared in conformity with
GAAP; and
(ii) unaudited consolidated financial statements
of the Borrower and its Subsidiaries for the nine month period
ending September 30, 2003, including balance sheets and
statements of income or operations, shareholders' equity and
cash flows (the "Interim Financial Statements").
(d) No Material Adverse Change. There shall not have
occurred a material adverse change since June 30, 2003 in the business,
assets, liabilities, operations, financial condition or prospects of
the Borrower and its Subsidiaries taken as a whole.
(e) Litigation. There shall not exist any action, suit,
investigation or proceeding pending or threatened in any court or
before an arbitrator or Governmental Authority that could reasonably be
expected to have a Material Adverse Effect.
(f) Organization Documents, Resolutions, Etc. Receipt by
the Administrative Agent of the following, each of which shall be
originals or facsimiles (followed promptly by originals), in form and
substance reasonably satisfactory to the Administrative Agent and its
legal counsel:
(i) copies of the Organization Documents of each
Loan Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state or
other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant
secretary of such Loan Party to be true and correct as of the
Closing Date;
(ii) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as the Administrative
Agent may reasonably require evidencing the identity,
authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with
this Agreement and the other Loan Documents to which such Loan
Party is a party; and
(iii) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business
in its state of organization or formation, the state of its
principal place of business and each other jurisdiction where
its ownership, lease or operation of properties or the conduct
of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(g) Perfection and Priority of Liens. Receipt by the
Administrative Agent of the following:
(i) searches of Uniform Commercial Code filings
in the jurisdiction of formation of each Loan Party, the
jurisdiction of the chief executive office of each Loan Party
and each state (at the office of the Secretary of State (or
equivalent)) identified on Schedule 6.20(b) attached hereto or
where a filing would need to be made in order to perfect the
Administrative Agent's security interest in the Collateral,
copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) all certificates evidencing any certificated
Capital Stock pledged to the Administrative Agent pursuant to
the Pledge Agreement, together with duly executed in blank,
undated stock powers attached thereto (unless, with respect to
the pledged Capital Stock of any Foreign Subsidiary, such
stock powers are deemed unnecessary by the Administrative
Agent in its reasonable discretion under the law of the
jurisdiction of incorporation of such Person);
(iii) searches of ownership of, and Liens on,
intellectual property of each Loan Party in the appropriate
governmental offices; and
(iv) duly executed notices of grant of security
interest in the form required by the Security Agreement as are
necessary, in the Administrative Agent's reasonable
discretion, to perfect the Administrative Agent's security
interest in the intellectual property of the Loan Parties.
(h) Subordinated Debt. The Administrative Agent shall
have received copies, certified by an officer of the Borrower as true
and complete, of (i) the 2000 Subordinated Indenture (including all
exhibits and schedules thereto) as originally executed and delivered,
together with any amendments or modifications to the 2000 Subordinated
Indenture as of the Closing Date, the 2000 Subordinated Indenture and
amendments or modifications to be reasonably acceptable to the
Administrative Agent and (ii) the 2003 Subordinated Indenture
(including all exhibits and schedules thereto) as originally executed
and delivered, together with any amendments or modifications to such
2003 Subordinated Indenture as of the Closing Date, such 2003
Subordinated Indenture and amendments or modifications to be acceptable
to the Administrative Agent.
(i) Evidence of Insurance. Receipt by the Administrative
Agent of copies of insurance policies or certificates of insurance of
the Loan Parties evidencing liability and casualty insurance meeting
the requirements set forth in the Loan Documents, including, but not
limited to, naming the Administrative Agent as additional insured (in
the case of liability insurance) or loss payee (in the case of hazard
insurance) on behalf of the Lenders.
(j) Closing Certificate. Receipt by the Administrative
Agent of a certificate signed by a Responsible Officer of the Borrower
certifying that the conditions specified in Sections 5.01(d) and (e)
and Sections 5.02(a), (b) and (c) have been satisfied.
(k) Senior Unsecured Debt Rating. Receipt by the
Administrative Agent of evidence that the Borrower's senior secured
non-credit enhanced debt is rated B+ or higher (with at least a stable
outlook) by S&P and B1 or higher (with at least a stable outlook) from
Moody's.
(l) Fees. Receipt by the Administrative Agent and the
Lenders of any fees required to be paid on or before the Closing Date.
(m) Attorney Costs. Unless waived by the Administrative
Agent, the Borrower shall have paid all Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts
between the Borrower and the Administrative Agent).
(n) Other. Receipt by the Administrative Agent and the
Lenders of such other documents, instruments, agreements and
information as reasonably requested by the Administrative Agent or any
Lender, including, but not limited to, 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 Borrower and its Subsidiaries.
5.02 Conditions to all Credit Extensions.
The obligation of each Lender or any Issuer to honor any Request for
Credit Extension is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower
and each other Loan Party contained in Article VI or any other Loan
Document, or which are contained in any document
furnished at any time under or in connection herewith or therewith,
shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for
purposes of this Section 5.02, the representations and warranties
contained in subsections (a) and (b) of Section 6.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 7.01.
(b) No Default or Event of Default shall exist, or would
result from such proposed Credit Extension.
(c) There shall not have been commenced against the
Borrower or any Subsidiary an involuntary case under any applicable
Debtor Relief Law, now or hereafter in effect, or any case, proceeding
or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or
other case, proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C
Issuer, the Credit-Linked L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the
requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 5.02(a), (b) and (c) have been satisfied on and as of the date of the
applicable Credit Extension.
5.03 Conditions to Term Loans.
In addition to the conditions identified in Section 5.02, the
obligation of the Credit-Linked Lenders to make any Term Loans with proceeds
from the Credit-Linked Deposit Account is subject to the Administrative Agent's
receipt in accordance with the provisions of Section 2.06(a) hereof an
originally executed Loan Notice.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that:
6.01 Existence, Qualification and Power.
Each Loan Party (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own its assets and carry on its
business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.02 Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Person's Organization Documents; (b) in any material
respect, conflict with or result in any breach or contravention of, or the
creation of any Lien under (i) any material Contractual Obligation to which such
Person is a party or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law (including, without limitation,
Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person in
respect to any material Contractual Obligation is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document other than
(i) those that have already been obtained and are in full force and effect and
(ii) filings to perfect the Liens created by the Collateral Documents.
6.04 Binding Effect.
This Agreement and each other Loan Document has been duly executed and
delivered by each Loan Party that is party thereto. This Agreement and each
other Loan Document constitutes a legal, valid and binding obligation of each
Loan Party that is party thereto, enforceable against each such Loan Party in
accordance with its terms except as enforceability may be limited by applicable
Debtor Relief Laws and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, commitments and Indebtedness
(to the extent required to be shown in accordance with GAAP).
(b) The Interim Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness
(to the extent required to be shown in accordance with GAAP).
(c) From the date of the Audited Financial Statements to and
including the Closing Date, there has been no Disposition by the Borrower or any
Subsidiary, or any Involuntary Disposition, of any material part of the business
or Property of the Borrower and its Subsidiaries, taken as a whole, and no
purchase or
other acquisition by any of them of any business or Property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which is not reflected in the foregoing financial statements or in
the notes thereto or has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.
(d) The financial statements delivered pursuant to Section 7.01(a)
and (b), if any, have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.01(a) and (b)) and present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
and, in the case of annual financial statements delivered pursuant to Section
7.01(a), consolidating, financial condition, results of operations and cash
flows of the Borrower and its Subsidiaries as of such date and for such periods.
(e) Since the date of the Audited Financial Statements, there has
been no event or circumstance that has had or could reasonably be expected to
have a Material Adverse Effect.
6.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Responsible Officers of the Loan Parties after due
and diligent investigation, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or
any of its Subsidiaries or against any of their Properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or (b) if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
6.07 No Default.
(a) Neither the Borrower nor any Subsidiary is in default under or
with respect to any Contractual Obligation that could reasonably be expected to
have a Material Adverse Effect.
(b) No Default has occurred and is continuing.
6.08 Ownership of Property; Liens.
Each of the Borrower and its Subsidiaries has good record and
marketable title in fee simple to, or valid leasehold interests in, all real
property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Property of the Borrower and
its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.09 Environmental Compliance.
Except as could not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the Facilities and all operations at the
Facilities are in compliance with all applicable Environmental Laws,
and there is no violation of any Environmental Law with respect to the
Facilities or the Businesses, and there are no conditions relating to
the Facilities or the Businesses that could give rise to liability
under any applicable Environmental Laws.
(b) None of the Facilities contains, or has previously
contained, any Hazardous Materials at, on or under the Facilities in
amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.
(c) Neither the Borrower nor any Subsidiary has received
any written or verbal notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities
or the Businesses, nor does any Responsible Officer of any Loan Party
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Hazardous Materials have not been transported or
disposed of from the Facilities, or generated, treated, stored or
disposed of at, on or under any of the Facilities or any other
location, in each case by or on behalf the Borrower or any Subsidiary
in violation of, or in a manner that would be reasonably likely to give
rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Responsible Officers of
the Loan Parties, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Borrower, any Subsidiary, the Facilities or the
Businesses.
(f) There has been no release or, threat of release of
Hazardous Materials at or from the Facilities, or arising from or
related to the operations (including, without limitation, disposal) of
the Borrower or any Subsidiary in connection with the Facilities or
otherwise in connection with the Businesses, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
6.10 Insurance.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, 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 Borrower or the applicable Subsidiary
operates. The insurance coverage of the Loan Parties as in effect on the Closing
Date is outlined as to carrier, policy number, expiration date, type, amount and
deductibles on Schedule 6.10.
6.11 Taxes.
The Borrower and its Subsidiaries have filed all federal, material
state and other material tax returns and reports required to be filed, and have
paid all material federal, material state and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP.
There is no proposed tax assessment against the Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Loan Parties, nothing has
occurred which would prevent, or cause the loss of,
such qualification. Each Loan Party and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Internal
Revenue Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan
Parties, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) Except as could not be reasonably expected to have a Material
Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; and (iii) no
Loan Party 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).
(d) (i) No Loan Party nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (ii) no Loan Party nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list as of the
Closing Date of each Subsidiary, together with (i) jurisdiction of formation,
(ii) number of shares of each class of Capital Stock outstanding, (iii) number
and percentage of outstanding shares of each class owned (directly or
indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of each Subsidiary is validly issued, fully paid and
non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
Following the application of the proceeds of each Borrowing or drawing under
each Letter of Credit, not more than 25% of the value of the assets (either of
the Borrower only or of the Borrower and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 8.01 or Section 8.05 or subject to
any restriction contained in any agreement or instrument between the Borrower
and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 9.01(e) will be margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
6.15 Disclosure.
No report, financial statement, certificate or other information
furnished (whether in writing or orally) by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.
6.16 Compliance with Laws.
Each of the Borrower and each Subsidiary is in compliance with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its Properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
6.17 Intellectual Property; Licenses, Etc.
The Borrower and its Subsidiaries own, or possess the legal right to
use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights
(collectively, "IP Rights") that are reasonably necessary for the operation of
their respective businesses. Set forth on Schedule 6.17 is a list of all IP
Rights registered or pending registration with the United States Copyright
Office or the United States Patent and Trademark Office and owned by each Loan
Party as of the Closing Date. Except for such claims and infringements that
could not reasonably be expected to have a Material Adverse Effect, no claim has
been asserted and is pending by any Person challenging or questioning the use of
any IP Rights or the validity or effectiveness of any IP Rights, nor does any
Loan Party know of any such claim, and, to the knowledge of the Responsible
Officers of the Loan Parties, the use of any IP Rights by the Borrower or any
Subsidiary or the granting of a right or a license in respect of any IP Rights
from the Borrower or any Subsidiary does not infringe on the rights of any
Person. As of the Closing Date, none of the IP Rights owned by any of the Loan
Parties is subject to any licensing agreement or similar arrangement except as
set forth on Schedule 6.17.
6.18 Solvency.
The Loan Parties are Solvent on a consolidated basis.
6.19 Perfection of Security Interests in the Collateral.
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests and
Liens will, upon filing of all requisite financing statements and Mortgages, be
perfected security interests and Liens, prior to all other Liens other than
Permitted Liens.
6.20 Business Locations.
Set forth on Schedule 6.20(a) is a list of all real property located in
the United States that is owned or leased by the Loan Parties as of the Closing
Date. Set forth on Schedule 6.20(b) is a list of all states where any tangible
personal property of any Loan Party is located as of the Closing Date. Set forth
on Schedule 6.20(c) is the chief executive office and tax payer identification
number of each Loan Party as of
the Closing Date. The exact legal name and state of organization of each Loan
Party is as set forth on the signature pages hereto.
6.21 Brokers' Fees.
Except pursuant to the Fee Letter, neither the Borrower nor any
Subsidiary has any obligation to any Person in respect of any finder's,
broker's, investment banking or other similar fee in connection with any of the
transactions contemplated under the Loan Documents.
6.22 Labor Matters.
There are no labor strikes, lock-outs, slow downs, work stoppages or
similar events pending or, to the knowledge of the Responsible Officers of the
Loan Parties, threatened against the Borrower or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect and neither the
Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages
or other material labor difficulty within the last five years.
6.23 Subordination.
The subordination provisions contained in the 2000 Subordinated
Documents are enforceable against the Borrower, the Guarantors and the holders
of the 2000 Subordinated Documents, and all Obligations hereunder and under the
other Loan Documents are within the definitions of "Senior Debt" and "Designated
Senior Debt" included in such subordination provisions. The subordination
provisions contained in the 2003 Convertible Subordinated Debentures Documents
are enforceable against the Borrower, the Guarantors and the holders of the 2003
Convertible Subordinated Debentures, and all Obligations hereunder and under the
other Loan Documents are within the definitions of "Senior Indebtedness" and
"Designated Senior Indebtedness" included in such subordination provisions.
6.24 Tax Shelter Regulations.
The Borrower does not intend to treat the Loans, Letters of Credit
and/or the Credit-Linked Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.
If the Borrower so notifies the Administrative Agent, the Loan Parties
acknowledge that one or more of the Lenders may treat its Loans, the Letters of
Credit and/or Credit-Linked Letters of Credit as part of a transaction that is
subject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders,
as applicable, will maintain the lists and other records required by such
Treasury Regulation.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, any Letter of
Credit or Credit-Linked Letter of Credit shall remain outstanding or any Lender
shall have any Credit-Linked Deposit, the Loan Parties shall and shall cause
each Subsidiary to:
7.01 Financial Statements.
Deliver to the Administrative Agent (who will make available to the
Lenders), in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion
of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or
like qualification or exception or any qualification or exception as to
the scope of such audit; and
(b) as soon as available, but in any event within fifty
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statements of income or operations and cash
flows for such fiscal quarter and for the portion of the Borrower's
fiscal year then ended, setting forth in each case in comparative form
the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments
and the absence of footnotes.
As to any information contained in materials furnished pursuant to
Section 7.02(d), the Borrower shall not be separately required to
furnish such information under clause (a) or (b) above, but the
foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in subsections (a)
and (b) above at the times specified therein.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent (who will make available to the
Lenders), in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower;
(b) concurrently with the delivery of the financial
statements referred to in Sections 7.01(a) and (b), any budget of the
Borrower and its Subsidiaries which has been approved by the board of
directors of the Borrower;
(c) concurrently with the delivery of the financial
statements referred to in Sections 7.01(a), a certificate of a
Responsible Officer of the Borrower containing information regarding
the amount of all Dispositions, Involuntary Dispositions, Debt
Issuances, Equity Issuances and Acquisitions, in any one instance
exceeding $1,000,000, that occurred during the period covered by such
financial statements.
(d) promptly after any request by the Administrative
Agent or any Lender, copies of any detailed audit reports, management
letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of the Borrower by
independent accountants in connection with the accounts or books of the
Borrower or any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, (i) copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or
to a holder of any Indebtedness owed by the Borrower or any Subsidiary
in its capacity as such a holder and not otherwise required to be
delivered to the Administrative Agent pursuant hereto and (ii) upon the
request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters;
(f) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower or any
Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably
request; and
(g) concurrently with the delivery of the financial
statements referred to in Section 7.01(a), (i) a certificate of a
Responsible Officer of the Borrower listing (A) all registration
numbers for all patents, trademarks, service marks, trade names and
copyrights awarded to any Loan Party since the last day of the
immediately preceding fiscal period and (B) all patent applications,
trademark applications, service mark applications, trade names and
copyrights awarded to any Loan Party since the last day of the
immediately preceding fiscal period and the status of such application,
and (ii) attaching the insurance binder or other evidence of insurance
for any insurance coverage of the Borrower or any Subsidiary that was
renewed, replaced or modified during the period covered by such
financial statements and
(h) promptly after the Borrower has notified the
Administrative Agent of any intention by the Borrower to treat the
Loans, Letters of Credit and/or Credit-Linked Letters of Credit and
related transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), a duly completed copy
of IRS Form 8886 or any successor form.
Documents required to be delivered pursuant to Section 7.01(a) or (b)
or Section 7.02(e) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 11.02; or (ii)
on which such documents are posted on the Borrower'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 Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower 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 Borrower 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 Borrower shall be required to provide paper copies
of the Compliance Certificates required by Section 7.02(a) to the Administrative
Agent and each of the Lenders. 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 Borrower 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.
7.03 Notices.
(a) Promptly notify the Administrative Agent and each Lender of
the occurrence of any Default.
(b) Promptly notify the Administrative Agent and each Lender of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws.
(c) Promptly notify the Administrative Agent and each Lender of
the occurrence of any ERISA Event.
(d) Promptly notify the Administrative Agent and each Lender of
any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary.
Each notice pursuant to this Section 7.03(a) through (d) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been breached
by any Loan Party.
7.04 Payment of Obligations.
Pay and discharge as the same shall become due and payable, all its
material obligations and liabilities, including (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
material lawful claims which, if unpaid, would by law become a Lien upon its
Property; and (c) all material Indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
7.05 Preservation of Existence, Etc.
(a) (i) Preserve, renew and maintain in full force and effect its
legal existence under the Laws of the jurisdiction of its organization except in
a transaction permitted by Section 8.04 or 8.05 and (ii) preserve, renew and
maintain in full force and effect its good standing under the Laws of the
jurisdiction
of its organization except in a transaction permitted by Section 8.04 or 8.05 or
except to the extent that the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
(b) Take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(c) Preserve or renew all of its material registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
7.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its material Properties
and equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear excepted.
(b) Make all necessary repairs thereto and renewals and
replacements thereof, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(c) Use the standard of care typical in the industry in the
operation and maintenance of its facilities.
7.07 Maintenance of Insurance.
Maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance companies
not Affiliates of the Borrower, 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 Borrower or the
applicable Subsidiary operates. The Administrative Agent shall be named as loss
payee or mortgagee, as its interest may appear, and/or additional insured with
respect to any such insurance providing coverage in respect of any Collateral,
and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered or
canceled.
7.08 Compliance with Laws.
Comply with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or Property, except
in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records.
(a) Maintain, in all material respects, proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be.
(b) Maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.
7.10 Inspection Rights.
Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its Properties,
to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Administrative Agent or such Lender, as the case may be,
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice.
7.11 Use of Proceeds.
Use the proceeds of the Credit Extensions to finance working capital,
capital expenditures and other lawful corporate purposes, provided that in no
event shall the proceeds of the Credit Extensions be used in contravention of
any Law or of any Loan Document.
7.12 Additional Subsidiaries.
Within forty-five (45) days after the acquisition or formation of any
Subsidiary:
(a) notify the Administrative Agent thereof in writing,
together with (i) jurisdiction of formation, (ii) number of shares of
each class of Capital Stock outstanding, (iii) number and percentage of
outstanding shares of each class owned (directly or indirectly) by the
Borrower or any Subsidiary and (iv) number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and
all other similar rights with respect thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause
such Person to (i) become a Guarantor by executing and delivering to
the Administrative Agent a Joinder Agreement or such other documents as
the Administrative Agent shall reasonably deem appropriate for such
purpose, and (ii) deliver to the Administrative Agent (x) documents of
the types referred to in Sections 5.01(f) and (g) and Section 7.15(a)
and (b) and (y) favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to in clause (a)) such
that the Administrative Agent shall at all times have received one
satisfactory legal opinion for those Loan Parties (I) that own at least
95% of all assets of the Borrower and its Subsidiaries on a
consolidated basis and/or (II) that account for at least 95% of
revenues of the Borrower and its Subsidiaries on a consolidated basis
as of the four fiscal quarter period most recently ended, all in form,
content and scope reasonably satisfactory to the Administrative Agent.
7.13 ERISA Compliance.
Do, and cause each of its ERISA Affiliates to do, each of the
following: (a) maintain each Plan in compliance in all material respects with
the applicable provisions of ERISA, the Internal Revenue Code and other federal
or state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal
Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.
7.14 Pledged Assets.
Each Loan Party will (i) cause all of its owned and leased real and
personal Property other than Excluded Property to be subject at all times to
first priority, perfected and, in the case of real Property (whether leased or
owned), title insured Liens in favor of the Administrative Agent to secure the
Obligations pursuant to the terms and conditions of the Collateral Documents or,
with respect to any such Property acquired subsequent to the Closing Date, such
other additional security documents as the Administrative Agent shall reasonably
request, subject in any case to Permitted Liens and (ii) deliver such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, surveys, certified resolutions
and other organizational and authorizing documents of such Person, favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent's Liens
thereunder) such that the Administrative Agent shall at all times have received
one satisfactory legal opinion for those Loan Parties (x) that own at least 95%
of all assets of the Borrower and its Subsidiaries on a consolidated basis
and/or (y) that account for at least 95% of revenues of the Borrower and its
Subsidiaries on a consolidated basis as of the four fiscal quarter period most
recently ended and other items of the types required to be delivered pursuant to
Section 5.01(g) and Section 7.15(a) and (b), all in form, content and scope
reasonably satisfactory to the Administrative Agent. Without limiting the
generality of the above, the Loan Parties will cause (a) 100% of the issued and
outstanding Capital Stock of each Domestic Subsidiary and (b) 65% (or such
greater percentage that, due to a change in an applicable Law after the date
hereof, (1) could not reasonably be expected to cause the undistributed earnings
of such Foreign Subsidiary as determined for United States federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent and (2) could not reasonably be expected to cause any material
adverse tax consequences) of the issued and outstanding Capital Stock entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of
the issued and outstanding Capital Stock not entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary
directly owned by the Borrower or any Domestic Subsidiary to be subject at all
times to a first priority, perfected Lien in favor of the Administrative Agent
pursuant to the terms and conditions of the Collateral Documents or such other
security documents as the Administrative Agent shall reasonably request.
7.15 Post-Closing Deliverables.
(a) Real Property. On or before January 16, 2004, the
Administrative Agent shall have received the following, in form and substance
reasonably satisfactory to the Administrative Agent:
(i) fully executed and notarized Mortgages encumbering
the fee interest and/or leasehold interest of any Loan Party in each of
the real properties designated as a Mortgaged Property on Schedule
6.20(a);
(ii) ALTA mortgagee title insurance policies issued by a
title insurance company reasonably acceptable to the Administrative
Agent with respect to each Mortgaged Property, assuring the
Administrative Agent that each of the Mortgages creates a valid and
enforceable first priority mortgage lien on the applicable Mortgaged
Property, free and clear of all defects and encumbrances except
Permitted Liens, which title insurance policies shall otherwise be in
form and substance reasonably satisfactory to the Administrative Agent
and shall include such endorsements as are reasonably requested by the
Administrative Agent;
(iii) evidence as to (A) whether any Mortgaged Property is
in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards (a "Flood Hazard Property")
and (B) if any material Mortgaged Property is a Flood Hazard Property,
(I) whether the community in which such Mortgaged Property is located
is participating in the National Flood Insurance Program, (II) the
applicable Loan Party's written acknowledgment of receipt of written
notification from the Administrative Agent (x) as to the fact that such
Mortgaged Property is a Flood Hazard Property and (y) as to whether the
community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program and (III) copies
of insurance policies or certificates of insurance of the Borrower and
its Subsidiaries evidencing flood insurance satisfactory to the
Administrative Agent and naming the Administrative Agent as sole loss
payee on behalf of the Lenders; and
(iv) (A) with respect to each Mortgaged Property having a
fair market value in excess of $1,000,000, a legal opinion of local
counsel reasonably satisfactory to the Administrative Agent and (B)
with respect to each Mortgage legal opinions of general counsel and
outside legal counsel reasonably satisfactory to the Administrative
Agent.
(b) Stock of Foreign Subsidiaries. Within sixty (60) days of the
Closing Date, the applicable Loan Parties shall (i) pledge to the Administrative
Agent the Capital Stock of each Foreign Subsidiary existing on the Closing Date
required to be pledged to the Administrative Agent pursuant to Section 7.14,
together with stock certificates and undated stock powers executed in blank and
(ii) with respect to the Capital Stock pledged to the Administrative Agent
pursuant to subclause (b)(i) above, deliver to the Administrative Agent opinions
of counsel reasonably satisfactory to the Administrative Agent regarding, among
other things, the attachment and perfection of the Administrative Agent's
security interest in such Capital Stock.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, any Letter of
Credit or Credit-Linked Letter of Credit shall remain outstanding or any Lender
shall have any Credit-Linked Deposit, no Loan Party shall, nor shall it permit
any Subsidiary to, directly or indirectly:
8.01 Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on
Schedule 8.01 and any renewals or extensions thereof, provided that the
Property covered thereby is not increased and any renewal or extension
of the obligations secured or benefited thereby is permitted by Section
8.03(b);
(c) Liens (other than Liens imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or
which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with
GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established;
(e) pledges or deposits in the ordinary course of
business in connection with any insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which, in the aggregate,
are not substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable
Person;
(h) Liens securing judgments for the payment of money (or
appeal or other surety bonds relating to such judgments) not in excess
of the Threshold Amount (except to the extent covered by independent
third-party insurance as to which the insurer has acknowledged in
writing its obligation to cover), unless any such judgment remains
undischarged for a period of more than thirty (30) consecutive days
during which execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section
8.03(f); provided that (i) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness, (ii)
the Indebtedness secured thereby does not exceed the cost or fair
market value, whichever is lower, of the Property being acquired on the
date of acquisition and (iii) such Liens attach to such Property
concurrently with or within 120 days after the acquisition thereof;
(j) leases or subleases granted to others not interfering
in any material respect with the business of the Borrower or any of its
Subsidiaries;
(k) any interest of title of a lessor under, and Liens
arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to,
leases or short term rentals permitted by this Agreement;
(l) Liens deemed to exist in connection with Investments
in repurchase agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits
of cash in favor of banks or other depository institutions;
(n) Liens of a collection bank arising under Section
4-210 of the Uniform Commercial Code on items in the course of
collection;
(o) Liens securing Indebtedness permitted under Section
8.03(h); provided that such Liens shall be limited to specific Property
and shall not be a blanket Lien; and
(p) Liens of sellers of goods to the Borrower and any of
its Subsidiaries arising under Article 2 of the Uniform Commercial Code
or similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.
8.02 Investments.
Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary
in the form of cash or Cash Equivalents;
(b) Investments existing as of the Closing Date and set
forth in Schedule 8.02;
(c) Investments in any Person that is a Loan Party prior
to giving effect to such Investment;
(d) Investments consisting of extensions of credit in the
nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof
from, or of delinquent obligations of, or other disputes with,
financially troubled account debtors to the extent reasonably necessary
in order to prevent or limit loss;
(e) Guarantees permitted by Section 8.03;
(f) Permitted Acquisitions;
(g) to the extent permitted by, and in compliance with,
applicable law, loans to employees of the Borrower or any of its
Subsidiaries, provided that all such loans shall not exceed $2,000,000
in the aggregate at any one time;
(h) Investments in Lightwave L.L.C., an Alabama limited
liability company (or any of its successors or assigns), provided that
all such Investments (whether by cash or contribution of assets, but
excluding the reinvestment of its retained earnings) after December 31,
1999 may not exceed $5,000,000 in the aggregate;
(i) deposits made in the ordinary course of business
consistent with past practices to secure the performance of leases;
(j) Investments in Foreign Subsidiaries in an amount not
to exceed $25,000,000 in the aggregate at any time outstanding; and
(k) any other Investments in an amount not to exceed
$10,000,000 in the aggregate at any time outstanding.
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set
forth in Schedule 8.03 (and renewals, refinancings and extensions
thereof on terms and conditions not materially less favorable to the
applicable debtor(s));
(c) intercompany Indebtedness permitted under Section
8.02;
(d) obligations (contingent or otherwise) of the Borrower
or any Subsidiary existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or
Property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of
speculation or taking a "market view;" and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the
defaulting party;
(e) obligations of the Borrower under surety bonds
provided in the ordinary course of business;
(f) purchase money Indebtedness (including obligations in
respect of Capital Leases or Synthetic Leases) hereafter incurred by
the Borrower or any of its Subsidiaries to finance the purchase of
fixed assets, and renewals, refinancings and extensions thereof,
provided that (i) the total of all such Indebtedness for all such
Persons taken together shall not exceed an aggregate principal amount
of $25,000,000 at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;
and (iii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the
time of such refinancing;
(g) other unsecured Indebtedness in an aggregate
principal amount not to exceed $10,000,000 at any one time outstanding;
(h) secured Indebtedness in an aggregate principal amount
not to exceed $5,000,000 at any one time outstanding;
(i) unsecured Indebtedness to a seller incurred in
connection with a Permitted Acquisition, provided that (i) such
Indebtedness is expressly subordinated in right of payment to the prior
payment of the Obligations under this Agreement and the other Loan
Documents on terms and conditions reasonably satisfactory to the
Administrative Agent, (ii) such Indebtedness contains covenants no more
restrictive than the covenants contained in this Agreement and the
other Loan Documents and contains standstill provisions reasonably
acceptable to the Administrative Agent and (iii) no payments may be
made on such Indebtedness if a Default or Event of Default shall have
occurred and be continuing or would occur as a result of any such
payment;
(j) unsecured Indebtedness of the Borrower under the 2000
Subordinated Documents in an aggregate principal amount of up to
$172,500,000;
(k) unsecured Indebtedness of the Borrower under the 2003
Convertible Subordinated Debentures in an aggregate principal amount of
up to $270,000,000;
(l) Guarantees with respect to Indebtedness permitted
under clauses (a) through (i) of this Section 8.03; and
(m) Guarantees (which Guarantees shall be similarly
subordinated) with respect to Indebtedness permitted under clauses (j)
and (k) of this Section 8.03.
8.04 Fundamental Changes.
Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the
Borrower may merge or consolidate with any of its Subsidiaries provided that the
Borrower shall be the continuing or surviving corporation, (b) any Loan Party
other than the Borrower may merge or consolidate with any other Loan Party other
than the Borrower, (c) any Foreign Subsidiary may be merged or consolidated with
or into any Loan Party provided that such Loan Party shall be the continuing or
surviving corporation, (d) any Foreign Subsidiary may be merged or consolidated
with or into any other Foreign Subsidiary and (e) any Subsidiary of the Borrower
may merge with any Person that is not a Loan Party in connection with a
Permitted Acquisition provided that, if such Permitted Acquisition involves the
Borrower, the Borrower shall be the continuing or surviving corporation.
8.05 Dispositions.
Make any Disposition unless (a) the consideration paid in connection
therewith shall be cash or Cash Equivalents paid contemporaneously with
consummation of the transaction and shall be in an amount not less than the fair
market value of the Property disposed of, (b) if such transaction is a Sale and
Leaseback Transaction, such transaction is not prohibited by the terms of
Section 8.15, (c) such transaction does not involve the sale or other
disposition of a minority equity interest in any Subsidiary, (d) such
transaction does not involve a sale or other disposition of receivables other
than receivables owned by or attributable to other Property concurrently being
disposed of in a transaction otherwise permitted under this Section 8.05, and
(e) the aggregate net book value of all of the assets sold or otherwise disposed
of by the Borrower and its Subsidiaries in all such transactions in any fiscal
year of the Borrower shall not exceed $10,000,000.
Upon a disposition of assets permitted by this Agreement, the
Administrative Agent shall promptly deliver to the Borrower, upon the Borrower's
request and at the Borrower's expense, such documentation as is reasonably
necessary to evidence the Administrative Agent's release of security interest in
such assets.
8.06 Restricted Payments.
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments
(directly or indirectly) to any Loan Party;
(b) the Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the Capital
Stock of such Person; and
(c) subsequent to December 31, 2004, the Borrower may
make dividends and purchase, redeem, acquire or retire shares of its
Capital Stock of any class or any warrants or
options to purchase any such shares of its Capital Stock in an
aggregate amount not to exceed in any fiscal year an amount equal to
twenty five percent (25%) of the sum of (i) Consolidated Net Income for
the immediately prior fiscal year plus (ii) the amount of Non-Cash
Charges for the immediately prior fiscal year (to the extent such
Non-Cash Charges reduced Consolidated Net Income for such fiscal year);
provided that no Default or Event of Default exists immediately prior
to and after giving effect to any such purchase, redemption,
acquisition or retirement.
8.07 Change in Nature of Business.
Engage in any material line of business substantially different from
those lines of business conducted by the Borrower and its Subsidiaries on the
Closing Date or any business substantially related or incidental thereto (or any
reasonable extensions or expansions thereof).
8.08 Transactions with Affiliates and Insiders.
Except as set forth on Schedule 8.08, enter into or permit to exist any
transaction or series of transactions with any officer, director or Affiliate of
such Person other than (a) advances of working capital to any Loan Party, (b)
transfers of cash and assets to any Loan Party, (c) intercompany transactions
expressly permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or
Section 8.06, (d) normal and reasonable compensation and reimbursement of
expenses of officers and directors and (e) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the
ordinary course of such Person's business on terms and conditions substantially
as favorable to such Person as would be obtainable by it in a comparable
arms-length transaction with a Person other than an officer, director or
Affiliate.
8.09 Burdensome Agreements.
(a) Enter into, or permit to exist, any Contractual Obligation
that encumbers or restricts on the ability of any such Person to (i) pay
dividends or make any other distributions to any Loan Party on its Capital Stock
or with respect to any other interest or participation in, or measured by, its
profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any
of its Property to any Loan Party (other than customary consent requirements in
Contractual Obligations entered into in the ordinary course of business), (v)
pledge its Property pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan
Party pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (i)-(v) above) for (1) this Agreement and the other Loan
Documents, (2) the 2000 Subordinated Documents, (3) the 2003 Convertible
Subordinated Debenture Documents, (4) any document or instrument governing
Indebtedness incurred pursuant to Section 8.03(f), provided that any such
restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith, (5) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien or (6) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.05 or the
definition of "Disposition" pending the consummation of such sale.
(b) Enter into, or permit to exist, any Contractual Obligation
that prohibits or otherwise restricts the existence of any Lien upon any of its
Property in favor of the Administrative Agent (for the benefit of the Lenders)
for the purpose of securing the Obligations, whether now owned or hereafter
acquired, or requiring the grant of any security for any obligation if such
Property is given as security for the Obligations, except (i) any document or
instrument governing Indebtedness incurred pursuant to Section 8.03(f), provided
that any such restriction contained therein relates only to the asset or assets
constructed
or acquired in connection therewith, (ii) in connection with any Permitted Lien
or any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien and (iii) pursuant to customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.05 or the definition of "Disposition", pending the
consummation of such sale.
8.10 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
8.11 Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth at any
time to be less than the sum of (i) $570 million plus (ii) for each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending December 31,
2003, an amount equal to 50% of Consolidated Net Income (to the extent positive)
for such fiscal quarter plus (iii) without duplication, 100% of all Equity
Issuances after the Closing Date minus (iv) the Permitted Charges which are
applicable to such period minus (v) without duplication, all Non-Cash Charges
which are applicable to such period.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater than (i)
for any fiscal quarter ending during the period from the Closing Date to and
including June 30, 2004, 5.0:1.0, (ii) for any fiscal quarter ending during the
period from July 1, 2004 to and including December 31, 2004, 4.5:1.0 and (iii)
for any fiscal quarter ending after December 31, 2004, 3.5:1.0.
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated
Senior Leverage Ratio as of the end of any fiscal quarter of the Borrower to be
greater than 2.0:1.0.
(d) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to
be less than (i) for any fiscal quarter ending during the period from the
Closing Date to and including June 30, 2004, 1.5 to 1.0, (ii) for any fiscal
quarter ending during the period from July 1, 2004 to and including September
30, 2004, 1.75:1.0, (iii) for any fiscal quarter ending during the period from
October 1, 2004 to and including December 31, 2004, 2.0:1.0 and (iv) for any
fiscal quarter after December 31, 2004, 2.25:1.0.
(e) Consolidated Asset Coverage Ratio. Permit the Consolidated
Asset Coverage Ratio as of the end of any fiscal quarter of the Borrower to be
less than 2.5:1.0.
8.12 Prepayment of Other Indebtedness, Etc.
(a) Amend or modify any of the terms of any Indebtedness
(including without limitation the 2000 Subordinated Documents and the 2003
Convertible Subordinated Debenture Documents) of the Borrower or any Subsidiary
(other than Indebtedness arising under the Loan Documents) if such amendment or
modification would add or change any terms in a manner materially adverse to the
Lenders, the Borrower or any Subsidiary, including but not limited to shortening
the final maturity or average life to maturity, requiring any payment to be made
sooner than originally scheduled or increasing the interest rate applicable
thereto.
(b) Make (or give any notice with respect thereto) any voluntary
or optional payment, prepayment, redemption or acquisition for value of
(including without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when due) or
any voluntary or optional refund, refinance or exchange of any Indebtedness
(including without limitation the 2000 Subordinated Documents and the 2003
Convertible Subordinated Debenture Documents) of the Borrower or any Subsidiary
(other than Indebtedness arising under the Loan Documents).
(c) Permit any Indebtedness of the Borrower or any Subsidiary
(other than the Indebtedness arising under the Loan Documents) to be designated
or identified as (i) "Designated Senior Debt" under and as defined in the 2000
Subordinated Indenture or (ii) "Designated Senior Indebtedness" under and as
defined in the 2003 Subordinated Indenture.
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and
Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner
materially adverse to the Lenders.
(b) Change its fiscal year.
(c) Without providing ten (10) days prior written notice to the
Administrative Agent, change its name, state of formation or form of
organization.
8.14 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Agreement to the contrary,
(i) permit any Person (other than the Borrower or any Wholly Owned Subsidiary of
the Borrower) to own any Capital Stock of any Subsidiary of the Borrower, except
to qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries, (ii) permit any Subsidiary of the Borrower to issue or
have outstanding any shares of preferred Capital Stock (other than (a) the 485
shares of preferred Capital Stock issued by Allteck Line Contractors, Inc. to
the Borrower and (b) the 3,499 shares of preferred Capital Stock issued by
Quanta Services of Canada Ltd. to the Borrower) or (iii) create, incur, assume
or suffer to exist any Lien on any Capital Stock of any Subsidiary of the
Borrower, except for Permitted Liens.
8.15 Sale Leasebacks.
Enter into any Sale and Leaseback Transaction other than the sale and
leaseback of trucks and equipment for immaterial amounts in the ordinary course
of business.
8.16 Capital Expenditures.
(a) The Borrower and its Subsidiaries will not make Consolidated
Capital Expenditures during any fiscal year in excess of an amount equal to 50%
of Consolidated EBITDA for the twelve month period ending on the last day of the
immediately preceding fiscal year.
(b) In addition to the limits under Section 8.16(a), if the
Borrower or any of its Subsidiaries executes an eligible contract, then the
Borrower or such Subsidiary may make Consolidated Capital Expenditures in
respect of such contract in an amount equal to the lesser of (i) the actual
amount required by such contract, and (ii) $30,000,000, provided that, (A) in
respect of each such contract, Consolidated Capital Expenditures not made within
12 months after the date of such contract shall be applied against the limits
under Section 8.16(a) and (B) the amount of Consolidated Capital Expenditures
under this Section 8.16(b) for all such contracts may not, in the aggregate,
exceed $30,000,000 in any fiscal year.
Upon execution of each eligible contract, the Borrower or such Subsidiary shall
promptly deliver a copy of such contract to the Administrative Agent, together
with a summary of the Consolidated Capital Expenditures required by such
contract in form and detail acceptable to the Administrative Agent. As used in
this Section 8.16(b), "eligible contract" means, a utility outsourcing contract
with quantifiable revenues to the Borrower or such Subsidiary of at least
$30,000,000 during any 12 consecutive month period prior to 18 months after
execution of such contract.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party
fails to pay (i) when and as required to be paid herein, any amount of
principal of any Loan, any L/C Obligation or any Credit-Linked L/C
Obligation, or (ii) within three (3) days after the same becomes due,
any interest on any Loan, on any L/C Obligation, or on any
Credit-Linked L/C Obligation, the shortfall between the rate actually
earned on the Credit-Linked Deposit and the Benchmark Rate as required
hereunder or any commitment fee or other fee due hereunder, or (iii)
within five (5) days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
7.05(a)(i), 7.10 or 7.11 or Article VIII (other than Sections 8.01 and
8.03); or
(c) Information Covenants. The Borrower fails to perform
or observe any term, covenant or agreement contained in any of Section
7.01 or 7.02(a) and such failure continues for five (5) Business Days;
or
(d) Other Defaults. Any Loan Party fails to perform or
observe any other covenant or agreement (not specified in subsection
(a), (b) or (c) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for thirty (30) days
after the earlier of (i) a Responsible Officer of any Loan Party
becoming aware of such failure and (ii) notice thereof to the Borrower
from the Administrative Agent, the Required Revolving Lenders or the
Required Credit-Linked Lenders; or
(e) Representations and Warranties. Any representation,
warranty, certification or statement of fact made or deemed made by or
on behalf of the Borrower or any other Loan Party herein, in any other
Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respect when
made or deemed made; or
(f) Cross-Default. (i) The Borrower or any Subsidiary (A)
fails to make any payment when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of
any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such
Indebtedness or
Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of
such Guarantee (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which the Borrower
or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value
owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount; or
(g) Insolvency Proceedings, Etc. Any Loan Party or any of
its Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for sixty calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or
any material part of its Property is instituted without the consent of
such Person and continues undismissed or unstayed for sixty calendar
days, or an order for relief is entered in any such proceeding; or
(h) Inability to Pay Debts; Attachment. (i) The Borrower
or any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ
or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the Property of any such
Person and is not released, vacated or fully bonded within thirty days
after its issue or levy; or
(i) Judgments. There is entered against the Borrower or
any Subsidiary (i) one or more final judgments or orders for the
payment of money in an aggregate amount exceeding the Threshold Amount
(to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), and any such judgments or
orders shall not have been paid, discharged or bonded pending appeal
(or the Borrower has not obtained an indemnity against on terms and
conditions satisfactory to the Lenders in their reasonable discretion)
within thirty (30) days from the entry thereof, or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of ten
consecutive days during which a stay of enforcement of such judgment,
by reason of a pending appeal or otherwise, is not in effect; or
(j) ERISA. (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of the Threshold Amount; or
(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 thereunder or satisfaction in full
of all the Obligations, ceases to be in full force and effect; or any
Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(l) Change of Control. There occurs any Change of
Control; or
(m) 2000 Subordinated Documents. (i) There shall occur an
"Event of Default" (or any comparable term) under, and as defined in,
the 2000 Subordinated Documents, (ii) any of the Obligations for any
reason shall cease to be "Senior Debt" (or any comparable term) under,
and as defined in, the 2000 Subordinated Documents, (iii) any
Indebtedness other than the Obligations shall constitute "Designated
Senior Debt" (or any comparable term) under, and as defined in, the
2000 Subordinated Documents or (iv) the subordination provisions of the
2000 Subordinated Documents shall, in whole or in part, terminate,
cease to be effective or cease to be legally valid, binding and
enforceable against any holder of the debt evidenced by the 2000
Subordinated Documents; or
(n) 2003 Convertible Subordinated Debentures. (i) There
shall occur an "Event of Default" (or any comparable term) under, and
as defined in, the 2003 Convertible Subordinated Debentures Documents,
(ii) any of the Obligations for any reason shall cease to be "Senior
Debt" (or any comparable term) under, and as defined in, the 2003
Convertible Subordinated Debentures Documents, (iii) any Indebtedness
other than the Obligations shall constitute "Designated Senior Debt"
(or any comparable term) under, and as defined in, the 2003 Convertible
Subordinated Debentures Documents or (iv) the subordination provisions
of the 2003 Convertible Subordinated Debentures Documents shall, in
whole or in part, terminate, cease to be effective or cease to be
legally valid, binding and enforceable against any holder of the 2003
Convertible Subordinated Debentures.
9.02 Remedies Upon Event of Default.
(a) If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Revolving Lenders, take any or all of the following actions:
(i) declare the commitment of each Lender with a
Revolving Commitment to make Revolving Loans and any obligation of the
L/C Issuer to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated; and
(ii) require that the Borrower Cash Collateralize the L/C
Obligations (in an amount equal to the then applicable Outstanding
Amount thereof).
(b) If an Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Credit-Linked Lenders, take any or all of the following actions:
(i) declare the commitment of each Credit-Linked Lender
to make Term Loans and any obligation of the Credit-Linked L/C Issuer
to make Credit-Linked Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated; and
(ii) require that the Borrower Cash Collateralize the
Credit-Linked L/C Obligations (in an amount equal to the then
applicable Outstanding Amount thereof);
(c) If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any and all of the following actions:
(i) 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 Borrower; and
(ii) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions and any obligation of the
Credit-Linked L/C Issuer to make Credit-Linked Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations and Credit-Linked L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent
or any Lender.
Furthermore, if any Event of Default has occurred and is continuing,
the Administrative Agent shall, at the request of the Required Credit-Linked
Lenders, withdraw from the Credit-Linked Deposit Account and distribute to the
Credit-Linked Lenders on a pro rata basis an amount equal to the excess of the
Aggregate Credit-Linked Commitments over the Outstanding Amount of the
Credit-Linked Obligations.
9.03 Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after
the Loans have automatically become immediately due and payable and the L/C
Obligations and Credit-Linked L/C Obligations have automatically been required
to be Cash Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings and fees,
premiums and scheduled periodic payments, and any interest accrued
thereon, due under any Swap Contract between any Loan Party and any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract
is permitted by Section 8.03(d), ratably among the Lenders (and, in the
case of such Swap Contracts, Affiliates of Lenders) in proportion to
the respective amounts described in this clause Third held by them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans, L/C Borrowings and Credit-Linked L/C
Borrowings and breakage, termination or other payments, and any
interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such
Swap Contract is permitted by Section 8.03(d), and to Cash
Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit and to Cash Collateralize
that portion of the Credit-Linked Obligations comprised of the
aggregate undrawn amount of Credit-Linked Letters of Credit, ratably
among the Lenders (and, in the case of such Swap Contracts, Affiliates
of Lenders) in proportion to the respective amounts described in this
clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above
shall be applied to satisfy drawings under such Letters of Credit, as
applicable, as they occur. Subject to Section 2.05(c), amounts used to Cash
Collateralize the aggregate undrawn amount of Credit-Linked Letters of Credit
pursuant to clause Fourth above shall be applied to satisfy drawings under such
Credit-Linked Letters of Credit, as applicable, as they occur. If any amount
remains on deposit as Cash Collateral for any Letter of Credit after such Letter
of Credit has either been fully drawn or expired, then (i) if any other
Obligations (other than Letters of Credit that have been Cash Collateralized)
are outstanding, such remaining amount shall be applied to such other
Obligations, if any, in the order set forth above or (ii) if all of the
Obligations (other than the Letters of Credit that have been Cash
Collateralized) have been indefeasibly paid in full, such remaining amount shall
be paid to the Borrower or as otherwise required by law. If any amount remains
on deposit as Cash Collateral for any Credit-Linked Letter of Credit after such
Credit-Linked Letter of Credit has either been fully drawn or expired, then (i)
if any other Obligations (other than Credit-Linked Letters of Credit that have
been Cash Collateralized) are outstanding, such remaining amount shall be
applied to such other Obligations, if any, in the order set forth above or (ii)
if all of the Obligations (other than the Credit-Linked Letters of Credit that
have been Cash Collateralized) have been indefeasibly paid in full, such
remaining amount shall be paid to the Borrower or as otherwise required by law.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 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. Notwithstanding any provision to the contrary
contained elsewhere herein 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) The L/C Issuer shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (i) provided to
the Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and 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
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
(c) The Credit-Linked L/C Issuer shall act on behalf of the
Credit-Linked Lenders with respect to any Credit-Linked Letters of Credit issued
by it and the documents associated therewith, and the Credit-Linked L/C Issuer
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
the Credit-Linked L/C Issuer in connection with Credit-Linked 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 Credit-Linked Letters of Credit as
fully as if the term "Administrative Agent" as used in this Article X and in the
definition of "Agent-Related Person" included the Credit-Linked L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided herein with
respect to the Credit-Linked L/C Issuer.
(d) Each Credit-Linked Lender hereby consents to and approves the
terms of the Money Market Account Agreement. By execution hereof, the
Credit-Linked Lenders authorize and direct the Administrative Agent to enter
into the Money Market Account Agreement on behalf of the Credit-Linked Lenders.
10.02 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.
10.03 Liability of Administrative Agent.
No 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
any Loan Party or any officer thereof, contained herein 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
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No 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 Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
10.04 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 statements of counsel
to any Loan Party), 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 any 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 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Agreement, describing such 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 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 Default as it shall deem advisable or in the best interest of
the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has 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 any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any 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 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 Loan Parties and their respective
Subsidiaries, 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 Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
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 Borrower and the other Loan
Parties. 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 Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
10.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Loan Party and without limiting the obligation
of any Loan Party to do so), pro rata, and hold harmless each 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
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 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 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 Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
10.08 Administrative Agent in its Individual Capacity.
Bank of America 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 Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it
were not the Administrative Agent, the L/C Issuer or the Credit-Linked L/C
Issuer, and the terms "Lender" and "Lenders" include Bank of America in its
individual capacity.
10.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer, Credit-Linked L/C
Issuer 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 appointment of such successor
administrative agent shall require the consent of the Borrower at all times
other than during the existence of an Event of Default (which consent of the
Borrower 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 Borrower, 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, L/C Issuer, Credit-Linked L/C Issuer and Swing
Line Lender and the respective terms "Administrative Agent", "L/C Issuer",
"Credit-Linked L/C Issuer" and "Swing Line Lender" shall mean such successor
administrative agent, Letter of Credit issuer, Credit-Linked Letter of Credit
issuer and swing line lender, and the retiring Administrative Agent's
appointment, powers and duties in such capacities shall be terminated without
any other further act or deed on its behalf. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article X and Sections 11.04 and 11.05 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 thirty 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.
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 any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan, L/C Obligation or
Credit-Linked 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 Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations, Credit-Linked 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 2.03(i) and (j), 2.11 and 11.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other Property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender 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 2.11 and 11.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender 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 Collateral and Guaranty Matters.
The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion,
(a) to release any Lien on any Collateral granted to or
held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Revolving Commitments and payment in full
of all Obligations (other than contingent indemnification obligations)
and the expiration or termination of all Letters of Credit and
Credit-Linked Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document or any Involuntary
Disposition, or (iii) as approved in accordance with Section 11.01;
(b) to subordinate any Lien on any Property granted to or
held by the Administrative Agent under any Loan Document to the holder
of any Lien on such Property that is permitted by Section 8.01(i); and
(c) to release any Guarantor from its obligations under
the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent's authority to
release or subordinate its interest in particular types or items of
Property, or to release any Guarantor from its obligations under the
Guaranty, pursuant to this Section 10.11.
10.12 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.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.02) without
the written consent of such Lender (it being understood and agreed that
a waiver of any condition precedent set forth in Section 5.02 or of any
Default or Event of Default or a mandatory reduction in Commitments is
not considered an extension or increase in Commitments of any Lender);
(b) postpone any date fixed by this Agreement or any
other Loan Document for any payment of principal (excluding mandatory
prepayments), interest, fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan, L/C Borrowing or Credit-Linked L/C
Borrowing, or any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly
affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of "Default
Rate" or to waive any obligation of the Borrower to pay interest at the
Default Rate;
(d) change Section 2.13 or Section 9.03 in a manner that
would alter the pro rata sharing of payments required thereby without
the written consent of each Lender directly affected thereby;
(e) change any provision of this Section or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder without the written consent of each Lender
directly affected thereby;
(f) except in connection with a Disposition permitted
under Section 8.05, release all or substantially all of the Collateral
without the written consent of each Lender directly affected thereby;
(g) release the Borrower or, except in connection with a
merger or consolidation permitted under Section 8.04 or a Disposition
permitted under Section 8.05, all or substantially all of the
Guarantors, from its or their obligations under the Loan Documents
without the written consent of each Lender directly affected thereby;
or
(h) without the consent of Lenders (other than Defaulting
Lenders) holding in the aggregate at least a majority of the Revolving
Commitments (or if the Revolving Commitments have
been terminated, the outstanding Revolving Loans (and participations in
any Swing Line Loans and L/C Obligations)), (i) waive any Default or
Event of Default for purposes of Section 5.02 for purposes of any
Revolving Loan borrowing or L/C Credit Extension and (ii) amend,
change, waive, discharge or terminate Section 2.01(a), 2.02, 2.03,
2.05(b)(i) or 2.06 or any term, covenant or agreement contained in
Article VIII or Article IX;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application 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 Credit-Linked L/C Issuer in addition to the Lenders required above, affect
the rights or duties of the Credit-Linked L/C Issuer under this Agreement or any
Credit-Linked Letter of Credit Application relating to any Credit-Linked Letter
of Credit issued or to be issued by it; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to the
Lenders required above, affect the rights or duties of the Swing Line Lender
under this Agreement; (iv) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (v) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the United States Bankruptcy Code supersedes the unanimous consent provisions
set forth herein and (y) the Required Lenders shall determine whether or not to
allow a Loan Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of the
Lenders.
11.02 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 Borrower, the Administrative Agent, the L/C
Issuer, the Credit-Linked L/C Issuer or the Swing Line Lender, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.02 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 (which Administrative Questionnaires shall
be provided to the Borrower by the Administrative Agent upon request by
the Borrower) 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 Borrower, the Administrative Agent, the L/C Issuer,
the Credit-Linked L/C Issuer 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 L/C Issuer, the Credit-Linked
L/C Issuer and the Swing Line Lender pursuant to Article II 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 all
Loan Parties, 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 7.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(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 Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as reasonably understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify each 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 Borrower.
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.
11.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.04 Attorney Costs, Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all reasonable costs and expenses incurred in connection with the
development, 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
and costs and expenses in connection with the use of Intralinks, Inc.
or other similar information transmission systems in connection with this
Agreement, 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
Debtor Relief Law), 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 11.04 shall be payable within
twenty (20) days after demand therefor. The agreements in this Section shall
survive the termination of the Aggregate Revolving Commitments and repayment of
all other Obligations.
11.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated,
the Borrower agrees to indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, trustees, investment advisors, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, reasonable 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
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, Letter of Credit or Credit-Linked Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by the L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit and any refusal by the Credit-Linked L/C Issuer to honor a demand for
payment under a Credit-Linked Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Credit-Linked Letter of Credit), (c) any actual or alleged presence or release
of Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the Borrower, any Subsidiary or
any other Loan Party, or (d) any actual or prospective 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 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 (x) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y) arise
out of a dispute solely between two or more Indemnitees not caused by or
involving in any way the Borrower or any Subsidiary. 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 Closing Date). All
amounts due under this Section 11.05 shall be payable within twenty (20) 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 Commitments and the repayment, satisfaction
or discharge of all the other Obligations.
11.06 Payments Set Aside.
To the extent that any payment by or on behalf of any Loan Party is
made to the Administrative Agent or any Lender, 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 is 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, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
11.07 Successors and Assigns.
(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 Borrower 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 or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the 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,
Credit-Linked 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 in the case of an assignment of Revolving Loans and $1,000,000 in the
case of an assignment of Term Loans or any Credit-Linked Commitment unless each
of the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower 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 and Commitments
assigned, except that this clause (ii) shall not (x) apply to rights in respect
of Swing Line Loans or (y) prohibit any Lender from assigning all or a portion
of its rights and obligations among separate tranches on a pro rata basis;
(iii) any assignment of a Revolving Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender 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; provided that (a) no such fee shall be payable in the case of an
assignment to another Lender, an Affiliate of a Lender or an Approved Fund with
respect to a Lender, and (b) in the case of contemporaneous assignments by a
Lender to more than one Approved Fund managed by the same investment adviser
(which Approved Funds are not then Lenders hereunder), only a single such $3,500
fee shall be payable for all such contemporaneous assignments. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 11.04 and 11.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans, L/C Obligations and Credit-Linked 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
Borrower, 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 Borrower 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 Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower'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, Credit-Linked 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 Borrower,
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 clauses (a) through (g) of the first proviso to Section 11.01 that
directly affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 11.09 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.15 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01, 3.04 or 3.05 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 Borrower'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 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, 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 Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank and any
pledge of obligations owed, or securities issued, by such Lender as collateral
security for such obligations or securities, or to any trustee for, or any other
representative of, such holders; 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 L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of Default
has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of
the Borrower'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, if
at any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty (30) days' notice to
the Borrower and the Lenders, resign as L/C Issuer and/or Credit-Linked L/C
Issuer and/or (ii) upon thirty (30) days' notice to the Borrower, resign as
Swing Line Lender. In the event of any such resignation as L/C Issuer,
Credit-Linked L/C Issuer or Swing Line Lender, the Borrower shall be entitled to
appoint from among the Lenders a successor L/C Issuer, Credit-Linked L/C Issuer
or Swing Line Lender hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer, Credit-Linked L/C Issuer or Swing Line Lender, as the
case may be. If Bank of America resigns as L/C Issuer, it shall retain all the
rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as
Credit-Linked L/C
Issuer, it shall retain all the rights and obligations of the Credit-Linked L/C
Issuer hereunder with respect to all Credit-Linked Letters of Credit outstanding
as of the effective date of its resignation as Credit-Linked L/C Issuer and all
Credit-Linked L/C Obligations with respect thereto (including the right to
require the Credit-Linked Lenders to fund risk participations in Credit-Linked
Unreimbursed Amounts pursuant to Section 2.06(b)). If Bank of America 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 Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c).
(i) The Credit-Linked Deposit Account funded by any Credit-Linked
Lender pursuant to Section 2.01(b) shall not be released in connection with any
assignment of its Credit-Linked Commitment but shall instead be purchased by the
relevant assignee and continue to be held for application in accordance with the
terms of Section 2.05 in respect of the Credit-Linked Commitment assigned to
such assignee.
11.08 Confidentiality.
Each of the Administrative Agent, the L/C Issuer, the Credit-Linked L/C
Issuer, the Swing Line Lender and the Lenders agrees to (and to cause its and
its Affiliates' directors, officers and employees to) maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential and that the Administrative Agent, any Issuer or any
Lender, as applicable, shall be responsible for any violation of this Section
11.08 by such Persons); (b) to the extent required by any regulatory authority
having jurisdiction over such Person; (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process; (d) to any
other party to this Agreement; (e) to the extent reasonably required in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the prior
written consent of the Borrower; (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower; or (i) to the National Association
of Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential). In
addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions. For the purposes of this Section, "Information" means all
information received from or on behalf of any Loan Party or any of its
Subsidiaries relating to any Loan Party or any of its Subsidiaries or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent and each Lender may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transaction as well as other information, this sentence shall only apply
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans, Letters of Credit, Credit-Linked
Letters of Credit and transactions contemplated hereby.
11.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender and any Affiliate of any Lender is authorized at any time and from time
to time, without prior notice to the Borrower or any other Loan Party, any such
notice being waived by the Borrower (on its own behalf and on behalf of each
Loan Party) 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 respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan Document, 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 or
denominated in a currency different from that of the applicable deposit or
indebtedness. Each Lender agrees promptly to notify the Borrower 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.
11.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
11.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
11.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit or Credit-Linked Letter of
Credit shall remain outstanding.
11.14 Severability.
If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
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 Internal Revenue Code
(a "Foreign Lender") shall deliver to the Administrative Agent, prior
to receipt of any payment subject to withholding under the Internal
Revenue 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 Borrower 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 Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Borrower 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 871(h) or Section 881(c) of the Internal
Revenue 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 Borrower 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 Borrower 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
Borrower 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. 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 Internal Revenue 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 Borrower shall not be required to pay any
additional amount to any Foreign Lender under Section 3.01 or any
indemnity payments under Section 3.01(c) (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 Borrower of its obligation to pay any amounts pursuant to
Section 3.01 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
Borrower 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 Internal Revenue 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
Internal Revenue 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 Aggregate Revolving Commitments, repayment of all
other Obligations hereunder and the resignation of the Administrative
Agent.
11.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the
Borrower shall have the right to replace a Lender as a party to this
Agreement, the Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to
assign its Commitment and outstanding Loans (with the assignment fee to
be paid by the Borrower in such instance) pursuant to Section 11.07(b)
to one or more other Lenders or Eligible Assignees procured by the
Borrower; provided, however, that if the Borrower elects to exercise
such right with respect to any Lender pursuant to Section 3.06(b), it
shall be obligated to replace all Lenders that have made similar
requests for compensation pursuant to Section 3.01 or 3.04. The
Borrower shall (x) pay in full all principal, interest, fees and other
amounts owing to such Lender through the date of replacement (including
any amounts payable pursuant to Section 3.05), (y) provide appropriate
assurances and indemnities (which may include letters of credit) to the
L/C Issuer, the Credit-Linked L/C Issuer and the Swing Line Lender as
each may reasonably require with respect to any continuing obligation
to fund participation interests in any L/C Obligations, Credit-Linked
L/C Obligations or any Swing Line Loans then outstanding, and (z)
release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Commitment and outstanding
Loans and participations in L/C Obligations, Credit-Linked L/C
Obligations and Swing Line Loans.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAWS OF THE STATE OF NEW YORK applicable to agreements made
and to be performed entirely within such State; PROVIDED THAT THE PARTIES HERETO
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(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 NEW YORK
SITTING IN NEW YORK, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY
HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH PARTY HERETO 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 ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
11.18 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.
11.19 Designated Senior Indebtedness.
The Indebtedness evidenced by this Agreement is hereby specifically
designated as "Designated Senior Indebtedness" for purposes of the 2000
Subordinated Indenture and the other 2000 Convertible Subordinated Debentures
Documents, and the Indebtedness evidenced by this Agreement is hereby
specifically designated as "Designated Senior Indebtedness" for purposes of the
2003 Subordinated Indenture and the other 2003 Convertible Subordinated
Debentures Documents.
11.20 USA Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: QUANTA SERVICES, INC.,
a Delaware corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
GUARANTORS: ARBY CONSTRUCTION, INC.
AUSTIN TRENCHER, INC.
CCLC, INC.
CONTI COMMUNICATIONS, INC.
CROCE ELECTRIC COMPANY, INC.
DILLARD SMITH CONSTRUCTION COMPANY
DRIFTWOOD ELECTRICAL CONTRACTORS, INC.
GLOBAL ENERCOM MANAGEMENT, INC.
GOLDEN STATE UTILITY CO.
H.L. CHAPMAN PIPELINE CONSTRUCTION, INC.
HAINES CONSTRUCTION COMPANY
MANUEL BROS., INC.
MEARS GROUP, INC.
NETWORK ELECTRIC COMPANY
NORTH PACIFIC CONSTRUCTION CO., INC.
NORTH SKY COMMUNICATIONS, INC.
PARKSIDE SITE & UTILITY COMPANY
CORPORATION
PARKSIDE UTILITY CONSTRUCTION CORP.
PWR FINANCIAL COMPANY
QPC, INC.
QSI, INC.
QUANTA HOLDINGS, INC.
QUANTA GOVERNMENT SERVICES, INC.
QUANTA LI ACQUISITION, INC.
QUANTA LIV ACQUISITION, INC.
QUANTA LVII ACQUISITION, INC.
QUANTA LVIII ACQUISITION, INC.
QUANTA LIX ACQUISITION, INC.
QUANTA LX ACQUISITION, INC.
QUANTA LXI ACQUISITION, INC.
QUANTA LXII ACQUISITION, INC.
QUANTA LXIII ACQUISITION, INC.
QUANTA LXIV ACQUISITION, INC.
QUANTA LXV ACQUISITION, INC.,
each a Delaware corporation
By: /s/ Dana A. Gordon
-----------------------------------
Name: Dana A. Gordon
Title: Vice President
QUANTA LXVI ACQUISITION, INC.
QUANTA LXVII ACQUISITION, INC.
QUANTA LXVIII ACQUISITION, INC.
QUANTA LXIX ACQUISITION, INC.
QUANTA LXX ACQUISITION, INC.
QUANTA LXXI ACQUISITION, INC.
QUANTA LXXII ACQUISITION, INC.
QUANTA LXXIII ACQUISITION, INC.
QUANTA UTILITY INSTALLATION CO., INC.
R.A. WAFFENSMITH & CO., INC.
SOUTHEAST PIPELINE CONSTRUCTION, INC.
SOUTHWESTERN COMMUNICATIONS, INC.
SPALJ CONSTRUCTION COMPANY
SUMTER UTILITIES, INC.
TOM ALLEN CONSTRUCTION COMPANY
TTGP, INC.
TTLP, INC.
TXLP, INC.
UNDERGROUND CONSTRUCTION CO., INC.
VCI TELCOM, INC.
W.C. COMMUNICATIONS, INC.,
each a Delaware corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
ADVANCED TECHNOLOGIES AND
INSTALLATION CORPORATION,
ALLTECK LINE CONTRACTORS (USA), INC.
MUSTANG LINE CONTRACTORS, INC.
POTELCO, INC.,
each a Washington corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
BRADFORD BROTHERS, INC.
TTM, INC.,
each a North Carolina corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
COMMUNICATION MANPOWER, INC.
P.D.G. ELECTRIC COMPANY
TRAWICK CONSTRUCTION
COMPANY, INC., each a
Florida corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
CROWN FIBER COMMUNICATIONS, INC.,
a Virginia corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
ENVIRONMENTAL PROFESSIONAL ASSOCIATES,
LIMITED
W.H.O.M. CORPORATION
each a California corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
FIVE POINTS CONSTRUCTION CO.
MEJIA PERSONNEL SERVICES, INC.
TRANS TECH ACQUISITION, INC.
SOUTHWEST TRENCHING COMPANY, INC.
each a Texas corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
INTERMOUNTAIN ELECTRIC, INC.,
a Colorado corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
IRBY CONSTRUCTION COMPANY,
a Mississippi corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
OLD LESCO CORPORATION, INC.
a South Carolina corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
METRO UNDERGROUND SERVICES, INC.
PROFESSIONAL TELECONCEPTS, INC. (IL)
each an Illinois corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
PAR ELECTRICAL CONTRACTORS, INC.,
a Missouri corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
PROFESSIONAL TELECONCEPTS, INC. (NY),
A New York corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
THE RYAN COMPANY, INC.,
a Massachusetts corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
UTILCO, INC.,
a Georgia corporation
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
QDE, LLC
QUANTA DELAWARE, INC.
QUANTA ASSET MANAGEMENT LLC
each a Delaware limited liability
company
By: /s/ Linda Bubacz
------------------------------------
Name: Linda Bubacz
Title: President
TOTAL QUALITY MANAGEMENT LLC,
a Delaware limited liability company
COAST TO COAST, LLC,
a California limited liability company
By: Environmental Professional
Associates, Limited, Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
NORTHERN LINE LAYERS, LLC,
a Delaware limited liability company
By: PAR Electrical Contractors, Inc.,
Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
DOT 05, LLC
TJADER, L.L.C.
OKAY CONSTRUCTION COMPANY, LLC
each a Delaware limited liability
company
By: Spalj Construction Company,
Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
LAKE NORMAN PIPELINE, LLC,
a North Carolina limited liability
company
By: Bradford Brothers, Inc.,
Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
MEARS/CPG, LLC
MEARS ENGINEERING, LLC
MEARS/HDD, LLC
MEARS SERVICES, LLC
each a Michigan limited liability
company
By: Mears Group, Inc., The Sole Member
of each of the foregoing limited
liability companies
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
S.K.S. PIPELINERS, LLC,
a Delaware limited liability company
By: Arby Construction, Inc., Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
TNS-VA, LLC,
a Delaware limited liability company
By: Professional Teleconcepts, Inc. (NY)
Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
LINECO LEASING, LLC,
a Washington limited liability company
By: Mustang Line Contractors, Inc.,
Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
AIRLAN TELECOM SERVICES, L.P.
NORTH HOUSTON POLE LINE, L.P.
LINDSEY ELECTRIC, L.P.
DIGCO UTILITY CONSTRUCTION, L.P.
each a Texas limited partnerships
By: Mejia Personnel Services, Inc.,
Its General Partner
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
QUANTA SERVICES MANAGEMENT
PARTNERSHIP, L.P.
QUANTA ASSOCIATES, L.P.
each a Texas limited partnerships
By: QSI, Inc., Its General Partnership
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
TRANS TECH ELECTRIC, L.P.,
a Texas limited partnership
By: TTGP, Inc., Its General Partner
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
PWR NETWORK, LLC,
a Delaware limited liability company
By: PWR Financial Company,
Its Sole Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
QUANTA RECEIVABLES, L.P.
a Delaware limited partnership
By: PWR Financial Company,
Its General Partner
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
Q RESOURCES, LLC
a Delaware limited liability company
By: Quanta Holdings, Inc., Its Member
By: /s/ Dana A. Gordon
------------------------------------
Name: Dana A. Gordon
Title: Vice President
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Suzanne M. Paul
------------------------------------
Name: Suzanne M. Paul
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer,
Credit-Linked L/C Issuer
and Awing Line Lender
By: /s/ Gary L. Mingle
------------------------------------
Name Gary L. Mingle
Title: Senior Vice President
JPMORGAN CHASE,
as Lender
By: /s/ Robert Mendoza
------------------------------------
Name: Robert Mendoza
Title: Vice President
KZH PONDVIEW, LLC
as Lender
By: /s/ Dorian Herrera
------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
KZH WATERSIDE, LLC,
as Lender
By: /s/ Dorian Herrera
------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
KZH SOLEIL, LLC,
as Lender
By: /s/ Dorian Herrera
------------------------------------
Name: Dorian Herrera
Title: Authorized Agent
Schedule 1.01(a)
DISPOSITIONS
Any sale, transfer or other disposition of any of the following:
1. Accounts receivable from any of the following account debtors and/or any of
their respective affiliates, successors or assigns:
- - WorldCom, Inc.
- - Enron Corporation
- - Adelphia Communications
- - Resource Technology Corp.
2. The turbines held in Borrower's inventory as of the Closing Date.
3. One or more Linemaster(C) Robotic arms.
4. Any interest in underground passageways and all rights and appurtenances
appertaining thereto located generally in the City of San Francisco or any
interest therein.
5. Any interest in telecommunication lines and all rights and appurtenances
appertaining thereto, consisting of fiber optic cable, conduit, pipes, vaults,
structures, and associated facilities located on a line in the Utah Department
of Transportation right of way generally along Bangerter Highway.
6. Any interest in ducts acquired in connection with the performance of work by
Northern Line Layers, Inc. for Metromedia Fiber Networks.
7. Any interest in underground passageways and all rights and appurtenances
appertaining thereto located generally (i) between the border dividing the
States of Minnesota and Wisconsin and the Cities of St. Paul and Minneapolis and
(ii) in the Cities of St. Paul and Minneapolis, or any interest therein.
Schedule 1.01(b)(1)
EXISTING CREDIT-LINKED LETTERS OF CREDIT
Schedule 1.01(b)(2)
EXISTING LETTERS OF CREDIT
Schedule 1.01(c)
PERMITTED CHARGES
All charges and expenses associated with (i) the Soule, Howell and Greenhalgh
arbitrations, (ii) the In re RTC bankruptcy matter, (iii) the Greenblatt
litigation and (iv) the IPWR litigation.
Schedule 2.01
COMMITMENTS AND PRO RATA SHARES
Schedule 6.10
INSURANCE
(see attached)
Schedule 6.13
SUBSIDIARIES
Schedule 6.17
IP RIGHTS
QUANTA SERVICES, INC. - U.S. TRADEMARKS
SUBSIDIARIES - U.S. PATENTS
SUBSIDIARIES - U.S. TRADEMARKS
PATENT APPLICATIONS
Schedule 6.20(a)
LOCATIONS OF REAL PROPERTY
Schedule 6.20(b)
LOCATIONS OF TANGIBLE PERSONAL PROPERTY
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Washington DC
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
1
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
2
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
3
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
4
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
5
Schedule 6.20(c)
LOCATION OF CHIEF EXECUTIVE OFFICE, ETC.
6
Schedule 8.01
LIENS EXISTING ON THE CLOSING DATE
1. Liens to secure obligations of the Borrower under surety bonds
provided in the ordinary course of business; and
2. All of the following:
Schedule 8.02
INVESTMENTS EXISTING ON THE CLOSING DATE
All Investments existing on the Closing Date in:
- Pivotel, LLC, a Delaware limited liability company (or any of
its successors or assigns);
- MLM Services, L.L.C., an Oklahoma limited liability company
(or any of its successors or assigns); and
- Foreign Subsidiaries existing on or prior to the Closing Date,
including, without limitation, Investments in Allteck Line
Contractors, Inc., a British Columbia corporation (or any of
its successors or assigns) (including, without limitation,
pursuant to that certain letter of credit no. 3048269 for the
benefit of Bank of Nova Scotia in the amount of $4,050,000),
Mears Canada Corp., a Nova Scotia corporation (or any of its
successors or assigns) and Mearsmex S. de R.L. de C.V., a
sociedad de responsabilidad limitada de capital variable
organized under the laws of Mexico (or any of its successors
or assigns).
Schedule 8.03
INDEBTEDNESS EXISTING ON THE CLOSING DATE
- -----------------
(1) Amount oustanding as of November 2003
Schedule 8.08
TRANSACTIONS WITH AFFILIATES AND INSIDERS
- - In February 2000, Borrower submitted a written notice to Gary A. Tucci,
a member of Borrower's board of directors and an officer of Potelco, Inc., a
Loan Party ("Potelco"), seeking indemnification from him for certain accounts
receivable losses sustained by Borrower in connection with its acquisition of
Potelco. The total amount outstanding as a result of this indemnification claim
as of the Closing Date is $144,104. As of the Closing Date, Borrower is
negotiating the settlement of this claim with Mr. Tucci.
- - From time to time, Borrower or a Subsidiary may enter into agreements
to the extent permitted by this Agreement (other than this Section 8.08) with
and/or take a minority ownership position in companies owned or controlled by
family members of officers of such Person for purposes of obtaining benefits
available in connection with governmental programs, organizations or incentives
(including, by way of illustration and without limitation, such programs or
incentives relating to small businesses or transactions with women- or
minority-owned businesses).
- - From time to time and as part of the arms-length negotiation of the
acquisition of Subsidiaries, Borrower or its Subsidiaries may have entered into
transactions with certain officers of its Subsidiaries (including, by way of
illustration and without limitation, leases or rental agreements with such
officers) that, when taken outside the context of the acquisition as a whole,
may not be viewed as being substantially as favorable to Borrower as would be
obtainable by it in an arms-length transaction with a different third-party.
Schedule 11.02
CERTAIN ADDRESSES FOR NOTICE
1. Address for all Loan Parties:
Quanta Services, Inc.
1360 Post Oak Blvd., Suite 2100
Houston, Texas 77056
Attention: Chief Financial Officer
Telephone: (713) 629-7600
Facsimile: (713) 629-7676
With a copy to:
Quanta Services, Inc.
1360 Post Oak Blvd., Suite 2100
Houston, Texas 77056
Attention: General Counsel
Telephone: (713) 629-7600
Facsimile: (713) 629-7676
With a copy to:
Quanta Services, Inc.
1360 Post Oak Blvd., Suite 2100
Houston, Texas 77056
Attention: Treasurer
Telephone: (713) 629-7600
Facsimile: (713) 629-7676
2. Address for Administrative Agent:
For payments and Requests for Credit Extensions:
Bank of America, N.A.
Bank of America Plaza
901 Main St.
Dallas, TX 75202
Mail Code: TX1-492-14-14
Attention: Monica Barnes
Telephone: (214) 209-9289
Facsimile: (214) 290-9442
Electronic Mail: monica.t.barnes@bankofamerica.com
For all other Notices as Agent:
Bank of America, N.A.
Agency Management
231 South LaSalle Street
Chicago, Illinois 60604
Mail Code: IL1-231-08-30
Attention: Rosanne Parsill
Telephone: (312) 923-1639
Facsimile: (877) 206-8429
Electronic Mail: rosanne.parsill@bankofamerica.com
For all other Notices as Lender:
3. Address for L/C Issuer and Credit L/C Issuer:
Bank of America, N.A.
Trade Operations - Los Angeles
333 S. Beaudry Avenue, 23rd Floor
Los Angeles, CA 90017-1466
Mail Code: CA9-703-19-23
Attention: Sandra Leon
Telephone: (213) 345-5231
Facsimile: (213) 345-0265
Email: sandra.leon@bankofamerica.com
4. Address for Swing Line Lender:
Bank of America, N.A.
Bank of America Plaza
901 Main St.
Dallas, TX 75202
Mail Code: TX1-492-14-14
Attention: Monica Barnes
Telephone: (214) 209-9289
Facsimile: (214) 290-9442
Electronic Mail: monica.t.barnes@bankofamerica.com
Exhibit A
FORM OF LETTER OF CREDIT TRANSFER NOTICE
Date: __________, 200__
To: Bank of America, N.A., as Administrative Agent
Re: Credit Agreement (as amended, modified, supplemented and extended from
time to time, the "Credit Agreement") dated as of December ___, 2003
among Quanta Services, Inc., a Delaware corporation (the "Borrower"),
the Guarantors identified therein, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent, L/C Issuer,
Credit-Linked L/C Issuer Swing Line Lender. Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby requests:
1. Transfer of Letter of Credit no. _________ issued pursuant to Section 2.03 to
a Credit-Linked Letter of Credit issued pursuant to Section 2.05.
2. On _______________, 200__ (which is a Business Day).
3. In the amount of _____________________.
With respect to such transfer of Letter of Credit no. __________ to a
Credit-Linked Letter of Credit, the Borrower hereby represents and warrants that
(i) such request complies with the requirements of Section 2.05(a)(vi) of the
Credit Agreement and (ii) each of the conditions set forth in Section 5.02 of
the Credit Agreement have been satisfied on and as of the date of such transfer
of Letters of Credit.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit B
FORM OF LOAN NOTICE
Date: __________, 200__
To: Bank of America, N.A., as Administrative Agent
Re: Credit Agreement (as amended, modified, supplemented and extended from
time to time, the "Credit Agreement") dated as of December ___, 2003
among Quanta Services, Inc., a Delaware corporation (the "Borrower"),
the Guarantors identified therein, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent, L/C Issuer,
Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby requests (select one):
[ ] A Borrowing of Revolving Loans
[ ] A Borrowing of Term Loans
[ ] A conversion or continuation of Revolving Loans or Term Loans
1. On _______________, 200__ (which is a Business Day).
2. In the amount of $__________.
3. Comprised of __________ (Type of Loan requested).
4. For Eurodollar Rate Loans: with an Interest Period of _________ months.
With respect to any borrowing or any conversion or continuation requested
herein, the Borrower hereby represents and warrants that (i) in the case of a
borrowing of Revolving Loans, such request complies with the requirements of the
proviso to the first sentence of Section 2.01(a) of the Credit Agreement, (ii)
in the case of a borrowing of Term Loans, such request complies with the
requirements of the proviso of the first sentence of Section 2.06(a)(i) of the
Credit Agreement and (iii) in the case of a borrowing or any conversion or
continuation, each of the conditions set forth in Section 5.02 of the Credit
Agreement have been satisfied on and as of the date of such borrowing or such
conversion or continuation.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit C
FORM OF REQUEST FOR CREDIT-LINKED DEPOSIT
Date: __________, 200__
To: Bank of America, N.A., as Administrative Agent
Re: Credit Agreement (as amended, modified, supplemented and extended from
time to time, the "Credit Agreement") dated as of December ___, 2003
among Quanta Services, Inc., a Delaware corporation (the "Borrower"),
the Guarantors identified therein, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent, L/C Issuer,
Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby notifies the Administrative Agent that it will repay on
_______, 200_ (which is a Business Day) Term Loans in the outstanding principal
amount of $________ by paying Dollars to the Administrative Agent for deposit in
the Credit-Linked Deposit Account.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit D
FORM OF SWING LINE LOAN NOTICE
Date: __________, 200__
To: Bank of America, N.A., as Swing Line Lender
Cc: Bank of America, N.A., as Administrative Agent
Re: Credit Agreement (as amended, modified, supplemented and extended from
time to time, the "Credit Agreement") dated as of December ___, 2003
among Quanta Services, Inc., a Delaware corporation (the "Borrower"),
the Guarantors identified therein, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent, L/C Issuer,
Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby requests a Swing Line Loan:
1. On __________ , 200__ (a Business Day).
2. In the amount of $__________.
With respect to such Borrowing of Swing Line Loans, the Borrower hereby
represents and warrants that (i) such request complies with the requirements of
the proviso to the first sentence of Section 2.04(a) of the Credit Agreement and
(ii) each of the conditions set forth in Section 5.02 of the Credit Agreement
have been satisfied on and as of the date of such Borrowing of Swing Line Loans.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit E-1
FORM OF REVOLVING NOTE
December __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to
_____________________ or registered assigns (the "Lender"), in accordance with
the provisions of the Credit Agreement (as hereinafter defined), the principal
amount of each Revolving Loan from time to time made by the Lender to the
Borrower under that certain Credit Agreement (as amended, modified, supplemented
and extended from time to time, the "Credit Agreement") dated as of December __,
2003 among the Borrower, the Guarantors identified therein, the Lenders
identified therein and Bank of America, N.A., as Administrative Agent, L/C
Issuer, Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each
Revolving Loan from the date of such Revolving Loan until such principal amount
is paid in full, at such interest rates and at such times as provided in the
Credit Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. Upon the occurrence and continuation of
one or more of the Events of Default specified in the Credit Agreement, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Credit Agreement.
Revolving Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Revolving Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit E-2
FORM OF SWING LINE NOTE
December __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to
BANK OF AMERICA, N.A. or registered assigns (the "Swing Line Lender"), in
accordance with the provisions of the Credit Agreement (as hereinafter defined),
the principal amount of each Swing Line Loan from time to time made by the Swing
Line Lender to the Borrower under that certain Credit Agreement (as amended,
modified, supplemented and extended from time to time, the "Credit Agreement")
dated as of December __, 2003 among the Borrower, the Guarantors identified
therein, the Lenders identified therein and Bank of America, N.A., as
Administrative Agent, L/C Issuer, Credit-Linked L/C Issuer and Swing Line
Lender. Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each
Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Credit Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Swing Line Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. Upon the occurrence and continuation of
one or more of the Events of Default specified in the Credit Agreement, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Credit Agreement. Swing
Line Loans made by the Swing Line Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business.
The Swing Line Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Swing Line Loans and payments with respect
thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit E-3
FORM OF CREDIT-LINKED NOTE
December __, 2003
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to
_______________ or registered assigns (the "Lender"), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal
amount of each Term Loan from time to time made by the Lender to the Borrower
under that certain Credit Agreement (as amended, modified, supplemented and
extended from time to time, the "Credit Agreement") dated as of December __,
2003 among the Borrower, the Guarantors identified therein, the Lenders
identified therein and Bank of America, N.A., as Administrative Agent, L/C
Issuer, Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount of (a) each
Credit-Linked L/C Advance from the date of such Credit-Linked L/C Advance until
such principal amount is paid in full and (b) each Term Loan from the date of
such Term Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of
principal and interest shall be made to the Administrative Agent for the account
of the Lender in Dollars in immediately available funds at the Administrative
Agent's Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. Upon the occurrence and continuation of
one or more of the Events of Default specified in the Credit Agreement, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Credit Agreement. Credit-
Linked L/C Advances and Term Loans made by the Lender shall be evidenced by one
or more loan accounts or records maintained by the Lender in the ordinary course
of business. The Lender may also attach schedules to this Note and endorse
thereon the date, amount and maturity of its Credit-Linked L/C Advances and Term
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
Exhibit F
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: __________, 200__
To: Bank of America, N.A., as Administrative Agent
Re: Credit Agreement (as amended, modified, supplemented and extended from
time to time, the "Credit Agreement") dated as of December __, 2003
among Quanta Services, Inc., a Delaware corporation (the "Borrower"),
the Guarantors identified therein, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent, L/C Issuer,
Credit-Linked L/C Issuer and Swing Line Lender. Capitalized terms used
but not otherwise defined herein have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned Responsible Officer hereby certifies as of the date hereof that
[he/she] is the _______________ of the Borrower, and that, in [his/her] capacity
as such, [he/she] is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements:]
[1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 7.01(a) of the Credit Agreement for the fiscal
year of the Borrower ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.]
[Use following paragraph 1 for fiscal quarter-end financial statements:]
[1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 7.01(b) of the Credit Agreement for the fiscal quarter of
the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.]
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made, a detailed review of
the transactions and condition (financial or otherwise) of the Borrower during
the accounting period covered by the attached financial statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, the
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
[or:]
[the following covenants or conditions have not been performed or observed and
the following is a list of each such Default and its nature and status:]
4. The representations and warranties of the Loan Parties contained in the
Credit Agreement or any other Loan Document, are true and correct on and as of
the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a) and
(b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 7.01 of the Credit Agreement, including the statements in connection
with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedule 2
hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
__________, 200__.
QUANTA SERVICES, INC.,
a Delaware corporation
By: _______________________
Name:
Title:
SCHEDULE 2
TO COMPLIANCE CERTIFICATE
Exhibit G
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated as of
the Effective Date set forth below and is entered into by and between [Insert
name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein have the meanings
provided in the Credit Agreement identified below, receipt of a copy of which is
hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns
to the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Credit-Linked Letters of
Credit, Guarantees and Swing Line Loans included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: _________________________
2. Assignee: _________________________ [and is an
Affiliate/Approved Fund of [identify
Lender]]
3. Borrower: Quanta Services, Inc., a Delaware
corporation
4. Administrative Agent: Bank of America, N.A., as the
administrative agent under the Credit
Agreement
5. Credit Agreement: The Credit Agreement dated as of
December __, 2003 by and among the
Borrower, the Guarantors, the Lenders
parties thereto, and Bank of America,
N.A., as Administrative Agent, L/C
Issuer, Credit-Linked L/C Issuer and
Swing Line Lender
6. Assigned Interest:
7. Trade Date: __________________(5)
8. Effective Date: __________________(6)
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR: [NAME OF ASSIGNOR]
By: ______________________________
Name:
Title:
ASSIGNEE: [NAME OF ASSIGNEE]
By: ______________________________
Name:
Title:
[Consented to and](7) Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ______________________________
Name:
Title:
[Consented to:](8)
QUANTA SERVICES, INC.
By: ______________________________
Name:
- -------------
(2) Fill in the appropriate terminology for the types of facilities
under the Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Commitment" and "Credit-Linked Loan Commitment")
(3) Amount to be adjusted by the counterparties to take into account
any payments or prepayments made between the Trade Date and the Effective Date.
(4) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(5) To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.
(6) To be inserted by Administrative Agent and shall be the effective
date of recordation of transfer in the register therefor.
(7) To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.
(8) To be added only if the consent of the Borrower is required by the
terms of the Credit Agreement.
Title:
[Consented to:] (9)
BANK OF AMERICA, N.A., as L/C Issuer, Credit-Linked
L/C Issuer and Swing Line Lender
By: ______________________________
Name:
Title:
- ----------------
(9) To be added only if the consent of the Swing Line Lender, L/C
Issuer and Credit-Linked L/C Issuer is required by the terms of the Credit
Agreement.
Annex 1 to Assignment and Assumption
STANDARD TERMS AND CONDITIONS
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.01 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Exhibit H
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement") dated as of __________, 200__
is by and between __________, a __________ (the "New Subsidiary"), and Bank of
America, N.A., in its capacity as Administrative Agent under that certain Credit
Agreement (as amended, modified, supplemented and extended from time to time,
the "Credit Agreement") dated as of December __, 2003 among Quanta Services,
Inc., a Delaware corporation (the "Borrower"), the Guarantors identified
therein, the Lenders identified therein and Bank of America, N.A., as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Loan Parties are required by Section 7.12 of the Credit Agreement
to cause the New Subsidiary to become a "Guarantor" thereunder. Accordingly, the
New Subsidiary hereby agrees as follows with the Administrative Agent, for the
benefit of the Lenders:
1. The New Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the New Subsidiary will be deemed to
be a party to the Credit Agreement and a "Guarantor" for all purposes of the
Credit Agreement, and shall have all of the obligations of a Guarantor
thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions applicable to the Guarantors contained in the Credit
Agreement. Without limiting the generality of the foregoing terms of this
paragraph 1, the New Subsidiary hereby jointly and severally together with the
other Guarantors, guarantees to each Lender and the Administrative Agent, as
provided in Article IV of the Credit Agreement, the prompt payment and
performance of the Obligations in full when due (whether at stated maturity, as
a mandatory prepayment, by acceleration or otherwise) strictly in accordance
with the terms thereof.
2. The New Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the New Subsidiary will be deemed to
be a party to the Security Agreement and a "Grantor" for all purposes of the
Security Agreement, and shall have all the obligations of a Grantor thereunder
as if it had executed the Security Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Security Agreement. Without limiting
generality of the foregoing terms of this paragraph 2, the New Subsidiary hereby
grants to the Administrative Agent, for the benefit of the Lenders, a continuing
security interest in, and a right of set off against, any and all right, title
and interest of the New Subsidiary in and to the Collateral (as defined in the
Security Agreement) of the New Subsidiary to secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations (as defined in the Security
Agreement).
3. The New Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the New Subsidiary will be deemed to
be a party to the Pledge Agreement and a "Pledgor" for all purposes of the
Pledge Agreement, and shall have all the obligations of a Pledgor thereunder as
if it had executed the Pledge Agreement. The New Subsidiary hereby ratifies, as
of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Pledge Agreement. Without limiting generality of the
foregoing terms of this paragraph 3, the New Subsidiary hereby grants, pledges
and assigns to the Administrative Agent, for the benefit of the Lenders, a
continuing security interest in, and a right of set off against, any and all
right, title and interest of the New Subsidiary in and to the Capital Stock
identified on Schedule 7 hereto and all other Pledge Collateral (as defined in
the Pledge Agreement) of the New Subsidiary to secure the prompt payment and
performance in
full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations (as defined in the Pledge Agreement).
4. The Subsidiary hereby represents and warrants to the
Administrative Agent that:
(a) The New Subsidiary's exact legal name and state of
formation are as set forth on the signature pages hereto.
(b) The New Subsidiary's chief executive office is
located at the location set forth on Schedule 1 hereto. The New
Subsidiariy's taxpayer identification number and organization number
are set forth on Schedule 1 hereto.
(c) Other than as set forth on Schedule 2 hereto, the New
Subsidiary has not changed its legal name, changed its state of
formation, been party to a merger, consolidation or other change in
structure or used any tradename in the five years preceding the date
hereof.
(d) Schedule 3 hereto includes all Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
owned by the New Subsidiary in its own name, or to which the New
Subsidiary is a party, as of the date hereof. None of the Copyrights,
Patents and Trademarks of the New Subsidiary set forth in Schedule 4
hereto is the subject of any licensing or franchise agreement, except
as set forth on Schedule 4 hereto.
(e) Schedule 4 hereto includes all Commercial Tort Claims
before any Governmental Authority by or in favor of the New Subsidiary.
(f) Schedule 5 hereto lists all real property located in
the United States that is owned or leased by the New Subsidiary as of
the date hereof.
(g) Schedule 6 hereto lists all locations in the United
States of tangible personal property that is owned or leased by the New
Subsidiary as of the date hereof.
(h) Schedule 7 hereto includes all Subsidiaries of the
New Subsidiary, including number of shares of outstanding Capital
Stock, the certificate number(s) of the certificates evidencing such
Capital Stock and the percentage of such Capital Stock owned by the New
Subsidiary.
5. The address of the New Subsidiary for purposes of all notices
and other communications is the address designated for all Loan Parties on
Schedule 11.02 to the Credit Agreement or such other address as the New
Subsidiary may from time to time notify the Administrative Agent in writing.
6. The New Subsidiary hereby waives acceptance by the
Administrative Agent and the Lenders of the guaranty by the New Subsidiary under
Article IV of the Credit Agreement upon the execution of this Agreement by the
New Subsidiary.
7. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original but all of which when taken together shall
constitute one contract.
8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder
Agreement to be duly executed by its authorized officer, and the Administrative
Agent, for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By: ______________________________
Name:
Title:
Acknowledged and accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By: ______________________________
Name:
Title:
Schedule 1
Location of Chief Executive Office;
Taxpayer Identification Number; Organizational Number
Schedule 2
Changes in Legal Name or State of Formation;
Mergers, Consolidations and other Changes in Structure; Tradenames
Schedule 3
IP Rights
Schedule 4
Commercial Tort Claims
Schedule 5
Real Property Locations
Schedule 6
Tangible Personal Property Locations
Schedule 7
Pledged Stock
Exhibit I
BANK OF AMERICA, N.A.
MONEY MARKET ACCOUNT AGREEMENT
Account No. [___________] December __, 2003
1. The amount deposited in this Bank of America, N.A. (the
"Bank"), Money Market Account (the "Account") by Bank of
America, N.A., as Administrative Agent under that certain
Credit Agreement dated as of November __, 2003 (the
"Administrative Agent"), on November __, 2003 (the "Initial
Deposit Date") is One Hundred Fifty Million Dollars
($150,000,000.00). The Bank will designate the Account on its
official records as the "Bank of America, N.A. as
Administration Agent Quanta Services, Inc. Credit Linked
Deposit Account".
2. The Account shall bear interest during each Interest Period
(as defined below) at an interest rate per annum at a rate
equal to the LIBO Rate (as defined below) minus fifteen (15)
basis points until the Account balance is reduced to zero ($0)
(the "Closure Date"). The Bank will accrue interest on the
closing balance of the Account daily on the basis of a 360-day
year.
"Interest Period" means the period commencing on the Initial
Deposit Date or the end of the immediately preceding Interest
Period, as applicable, and ending on the date three months
thereafter; provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(iii) notwithstanding clauses (i) and (ii) above, the final
Interest Period shall be the period commencing on the end of
the immediately preceding Interest Period and ending on the
Closure Date (the "Final Interest Period").
"LIBO Rate" means
(i) for any Interest Period other than the Final Interest
Period:
(a) the rate per annum equal to the rate
determined by the Bank 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 Bank to
be the offered rate on such other page or other
service that displays an average British Bankers
Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
(c) if the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per
annum determined by the Bank 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 Account, being made
or continued and with a term equivalent to such
Interest Period would be offered by the Bank'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, and
(ii) for the Final Interest Period, the rate per annum
determined by the Bank as provided in clause (a), (b), or (c)
above, as applicable, based upon the assumption at the date of
determination that such Interest Period will end on the date
three months after the start thereof (taking into account the
conventions set forth in clauses (i) and (ii) in the
definition of "Interest Period" above).
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York or Dallas are
authorized to close under applicable law or are in fact closed
and a day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar
market.
"Dollar", "Dollars" and "$" mean lawful money of the United
States of America.
3. The Bank agrees to pay interest quarterly in arrears on the
first Business Day following the end of each Interest Period
to the bank account designated in writing by the
Administrative Agent.
4. The Bank reserves the right to require the Administrative
Agent to give seven days' advance written notice of any
withdrawal or transfer from the Account.
5. The Administrative Agent may make up to six withdrawals or
transfers from the Account by telephone during each calendar
month. During each calendar month the Administrative Agent
also may make transfers from the Account to another account of
the Administrative Agent at the Bank or withdrawals (i.e.,
payments directly to the Administrative Agent) when such
transfers or withdrawals are made by written request of the
Administrative Agent mailed or delivered by messenger or made
in person to the Bank.
6. For each permitted withdrawal or transfer from the Account,
the Bank will pay to the Administrative Agent the amount
requested up to the amount of the balance of the
Account. Any accrued interest on such amount from and
including the immediately preceding quarterly interest payment
date to but not including the relevant withdrawal or transfer
date will be paid by the Bank to the Administrative Agent on
the next quarterly interest payment date or the Closure Date,
as the case may be.
7. The Bank represents that (a) this Account creates a
debtor-creditor relationship between the Bank and the
Administrative Agent, (b) it treats the amount deposited in
the Account as a deposit liability on its balance sheet, (c)
the terms on which the Account is made available are
substantially similar to terms made available to other
institutional Bank customers for deposit accounts of the same
type, and (d) it classifies the Account as a "savings account"
under Regulation D of the Board of Governors of the Federal
Reserve System.
8. The Bank agrees not to close the Account until the Closure
Date.
9. All notices required hereunder shall be personally delivered
or sent by first class mail, postage prepaid, or by overnight
courier, to the addresses on the signature page attached
hereto, or sent by facsimile to the fax numbers listed on the
signature page, provided by telephone to the telephone numbers
listed on the signature page, or to such other addresses as
the Bank and the Administrative Agent may specify from time to
time in writing. Notices and other communications shall be
effective (i) if mailed, upon the earlier of receipt or five
(5) days after deposit in the U.S. mail, first class, postage
prepaid, (ii) if telecopied, when transmitted, (iii) if
telephoned, when the telephonic message is received "live" by
an authorized recipient at the telephone number, or (iv) if
hand-delivered, by courier or otherwise (including telegram,
lettergram or mailgram), when delivered. From time to time,
Administrative Agent will designate one or more authorized
signers on the Account by execution and delivery of signature
cards to the Bank.
BANK OF AMERICA, N.A., as the Bank
By: ______________________________
Name:
Title:
Attention:
Telecopier No.:
Telephone No.:
Accepted and Agreed:
BANK OF AMERICA, N.A., as Administrative Agent
By: ______________________________________
Name:
Title:
Attention:
Telecopier No.:
Telephone No.: