Exhibit 10.1
EXECUTION VERSION
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
June 23, 2009
among
HERMAN MILLER, INC.,
THE SUBSIDIARY BORROWERS PARTY
HERETO,
THE LENDERS PARTY HERETO,
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
and
BANK OF AMERICA, N.A. and
JPMORGAN CHASE BANK,
as Documentation Agents
_________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers
TABLE OF CONTENTS
ARTICLE I
Definitions
|
|
|
|
SECTION
1.01.
|
Defined
Terms
|
1
|
|
SECTION
1.02.
|
Classification
of Loans and Borrowings
|
21
|
|
SECTION
1.03.
|
Terms
Generally
|
21
|
|
SECTION
1.04.
|
Accounting
Terms; GAAP; Pro Forma Treatment
|
21
|
|
SECTION
1.05.
|
Foreign
Currency Calculations
|
22
|
|
SECTION
1.06.
|
Redenomination
of Certain Foreign Currencies
|
22
|
|
SECTION
1.07.
|
Amendment and
Restatement
|
22
|
ARTICLE II
The Credits
|
|
|
|
SECTION
2.01.
|
Commitments
|
23
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|
SECTION
2.02.
|
Loans and
Borrowings
|
23
|
|
SECTION
2.03.
|
Requests for
Revolving Borrowings
|
24
|
|
SECTION
2.04.
|
Competitive Bid
Procedure
|
25
|
|
SECTION
2.05.
|
Swingline
Loans
|
27
|
|
SECTION
2.06.
|
Letters of
Credit
|
28
|
|
SECTION
2.07.
|
Funding of
Borrowings
|
32
|
|
SECTION
2.08.
|
Interest
Elections
|
33
|
|
SECTION
2.09.
|
Termination and
Reduction of Commitments
|
34
|
|
SECTION
2.10.
|
Repayment of
Loans; Evidence of Debt
|
34
|
|
SECTION
2.11.
|
Prepayment of
Loans
|
35
|
|
SECTION
2.12.
|
Fees
|
36
|
|
SECTION
2.13.
|
Interest
|
37
|
|
SECTION
2.14.
|
Alternate Rate
of Interest
|
38
|
|
SECTION
2.15.
|
Increased
Costs
|
38
|
|
SECTION
2.16.
|
Break Funding
Payments
|
39
|
|
SECTION
2.17.
|
Taxes
|
40
|
|
SECTION
2.18.
|
Payments
Generally; Pro Rata Treatment; Sharing of Set-offs
|
41
|
|
SECTION
2.19.
|
Mitigation
Obligations; Replacement of Lenders
|
42
|
|
SECTION
2.20.
|
Subsidiary
Borrowers
|
43
|
|
SECTION
2.21.
|
Additional
Reserve Costs
|
43
|
|
SECTION
2.22.
|
Ancillary
Facilities
|
44
|
|
SECTION
2.23.
|
U.S. Borrower
Guaranty
|
46
|
ARTICLE III
Representations and Warranties
|
|
|
|
SECTION
3.01.
|
Organization;
Powers
|
46
|
|
SECTION
3.02.
|
Authorization;
Enforceability
|
46
|
|
SECTION
3.03.
|
Governmental
Approvals; No Conflicts
|
46
|
|
SECTION
3.04.
|
Financial
Condition; No Material Adverse Change
|
47
|
|
SECTION
3.05.
|
Properties
|
47
|
|
SECTION
3.06.
|
Litigation and
Environmental Matters
|
47
|
-i-
TABLE OF CONTENTS
(continued)
|
|
|
|
SECTION
3.07.
|
Compliance with
Requirements of Law and Contractual Obligations
|
47
|
|
SECTION
3.08.
|
Investment
Company Status
|
48
|
|
SECTION
3.09.
|
Taxes
|
48
|
|
SECTION
3.10.
|
ERISA
|
48
|
|
SECTION
3.11.
|
Disclosure
|
48
|
|
SECTION
3.12.
|
Use of
Advances
|
48
|
|
SECTION
3.13.
|
Labor
Matters
|
48
|
|
SECTION
3.14.
|
Foreign Assets
Control, Etc
|
48
|
ARTICLE IV
Conditions
|
|
|
|
SECTION
4.01.
|
Restatement
Effective Date
|
49
|
|
SECTION
4.02.
|
Each Credit
Event
|
49
|
|
SECTION
4.03.
|
Credit Events
Relating to Subsidiary Borrowers
|
50
|
ARTICLE V
Affirmative Covenants
|
|
|
|
SECTION
5.01.
|
Financial
Statements; Ratings Change and Other Information
|
50
|
|
SECTION
5.02.
|
Notices of
Material Events
|
51
|
|
SECTION
5.03.
|
Existence;
Conduct of Business
|
52
|
|
SECTION
5.04.
|
Payment of
Obligations
|
52
|
|
SECTION
5.05.
|
Maintenance of
Properties; Insurance
|
52
|
|
SECTION
5.06.
|
Books and
Records; Inspection Rights
|
52
|
|
SECTION
5.07.
|
Compliance
|
52
|
|
SECTION
5.08.
|
Use of Proceeds
and Letters of Credit
|
52
|
|
SECTION
5.09.
|
Additional
Covenants
|
52
|
ARTICLE VI
Negative Covenants
|
|
|
|
SECTION
6.01.
|
Subsidiary
Indebtedness
|
53
|
|
SECTION
6.02.
|
Liens
|
53
|
|
SECTION
6.03.
|
Fundamental
Changes
|
54
|
|
SECTION
6.04.
|
Investments,
Loans, Advances and Acquisitions
|
55
|
|
SECTION
6.05.
|
Swap
Agreements
|
55
|
|
SECTION
6.06.
|
Restricted
Payments
|
55
|
|
SECTION
6.07.
|
Transactions
with Affiliates
|
56
|
|
SECTION
6.08.
|
Restrictive
Agreements
|
56
|
|
SECTION
6.09.
|
Disposition of
Assets; Etc
|
57
|
|
SECTION
6.10.
|
Change in
Business
|
57
|
|
SECTION
6.11.
|
Leverage
Ratio
|
57
|
|
SECTION
6.12.
|
Interest
Coverage Ratio
|
57
|
|
SECTION
6.13.
|
Debt
Prepayments
|
57
|
-ii-
TABLE OF CONTENTS
(continued)
ARTICLE VII
Events of Default
|
|
|
|
SECTION
7.01.
|
Events of
Default
|
58
|
ARTICLE VIII
The Agents
|
|
|
|
SECTION
8.01.
|
Appointment
|
60
|
|
SECTION
8.02.
|
Nature of
Duties
|
61
|
|
SECTION
8.03.
|
Resignation by
the Agents
|
61
|
|
SECTION
8.04.
|
Each Agent in
its Individual Capacity
|
61
|
|
SECTION
8.05.
|
Indemnification
|
62
|
|
SECTION
8.06.
|
Lack of
Reliance on Agents
|
62
|
|
SECTION
8.07.
|
Designation of
Affiliates for Foreign Currency Loans
|
62
|
ARTICLE IX
Miscellaneous
|
|
|
|
SECTION
9.01.
|
Notices
|
62
|
|
SECTION
9.02.
|
Waivers;
Amendments
|
64
|
|
SECTION
9.03.
|
Expenses;
Indemnity; Damage Waiver
|
65
|
|
SECTION
9.04.
|
Successors and
Assigns
|
66
|
|
SECTION
9.05.
|
Survival
|
68
|
|
SECTION
9.06.
|
Counterparts;
Integration; Effectiveness
|
68
|
|
SECTION
9.07.
|
Severability
|
69
|
|
SECTION
9.08.
|
Right of
Setoff
|
69
|
|
SECTION
9.09.
|
Governing Law;
Jurisdiction; Consent to Service of Process
|
69
|
|
SECTION
9.10.
|
WAIVER OF JURY
TRIAL
|
69
|
|
SECTION
9.11.
|
Headings
|
70
|
|
SECTION
9.12.
|
Confidentiality
|
70
|
|
SECTION
9.13.
|
Interest Rate
Limitation
|
70
|
|
SECTION
9.14.
|
USA PATRIOT
Act
|
70
|
|
SECTION
9.15.
|
Conversion of
Currencies
|
71
|
|
SECTION
9.16.
|
Waivers and
Agreements
|
71
|
ARTICLE X
Collection Allocation Mechanism
|
|
|
|
SECTION
10.01.
|
Implementation
of CAM
|
73
|
|
SECTION
10.02.
|
Letters of
Credit
|
74
|
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.06 -- Existing Letters of Credit
-iii-
TABLE OF CONTENTS
(continued)
Schedule 3.06 -- Disclosed
Matters
Schedule 6.01 -- Existing Subsidiaries Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment
and Assumption
Exhibit B -- Subsidiary Borrower Agreement
Exhibit C -- Subsidiary Borrower Termination
Exhibit D -- [RESERVED]
Exhibit E -- U.S. Borrower Guaranty
Exhibit F -- Mandatory Cost Rate
Exhibit G -- Form of Opinion of Subsidiary Borrower's Counsel for
Domestic Subsidiaries
-iv-
This
AMENDED AND RESTATED CREDIT AGREEMENT (this “
Agreement ”), dated as of June 23, 2009, is among
Herman Miller, Inc., the Subsidiary Borrowers party hereto, the
Lenders party hereto and Wells Fargo Bank, National Association, as
Administrative Agent.
RECITALS
A.
The U.S. Borrower, the
Administrative Agent and the Lenders previously entered into that
certain Credit Agreement dated as of December 18, 2007 (as it
existed immediately prior to the effectiveness of this Agreement,
the “ Original Agreement ”);
B.
The U.S. Borrower has
requested that the Required Lenders consent to amend and restate
the Original Agreement to provide for certain changes to the terms
and provisions therein;
C.
As a result of such
request, the parties wish to amend and restate the Original
Agreement.
NOW,
THEREFORE, in consideration of the above Recitals and the mutual
covenants contained herein, the parties hereby agree that this
Agreement amends and restates the Original Agreement in its
entirety, effective as of the Restatement Effective Date, as
follows:
ARTICLE I
Definitions
SECTION
1.01 Defined Terms . As used in this Agreement, the
following terms have the meanings specified below:
“
ABR ”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
“
Acquisition ” means any transaction, or any series of
related transactions, consummated on or after the date of this
Agreement, by which the U.S. Borrower or any of its Subsidiaries
(a) acquires any going business or all or substantially all of the
assets of any firm, corporation or limited liability company, or
division thereof, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the
Equity Interests of a Person.
“
Adjusted LIBO Rate ” means, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to (a) the LIBO Rate for such Interest Period multiplied
by (b) the Statutory Reserve Rate.
“
Administrative Agent ” means Wells Fargo, in its
capacity as administrative agent for the Lenders
hereunder.
“
Administrative Questionnaire ” means an Administrative
Questionnaire in a form supplied by the Administrative
Agent.
“
Advance ” means any Loan or any Letter of
Credit.
“
Affiliate ” means, with respect to a specified 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.
“
Agents ” means the Administrative Agent, the
Syndication Agent and the Documentation Agents.
“
Aggregate Ancillary Commitments ” means, at any time,
the aggregate amount of the Ancillary Commitments of all Lenders at
such time.
“
Aggregate Ancillary Facility Exposure ” means, at any
time, the aggregate amount of the Ancillary Facility Exposures of
all Lenders at such time.
“
Aggregate Commitments ” means, at any time, the
aggregate amount of the Commitments of all Lenders at such
time.
“
Aggregate Competitive Loan Exposure ” means, at any
time, the aggregate amount of the Competitive Loan Exposures of all
Lenders at such time.
“
Aggregate Revolving Credit Exposure ” means, at any
time, the aggregate amount of the Revolving Credit Exposures of all
Lenders at such time.
“
Aggregate Total Exposure ” means, at any time, the sum
of the Aggregate Revolving Credit Exposure, the Aggregate Ancillary
Facility Exposure and the Aggregate Competitive Loan Exposure at
such time.
“
Agreement Currency ” has the meaning assigned to such
term in Section 9.15(b).
“
Alternate Base Rate ” means, for any day, a rate per
annum equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day
plus one and one-half percent (1.50%) and (c) One-Month LIBO
Rate in effect on such day plus one and one-half percent
(1.50%).
“
Ancillary Commitment ” means, with respect to any
Ancillary Lender and Ancillary Facility, the maximum amount that
such Ancillary Lender has agreed to make available from time to
time during the Availability Period under such Ancillary Facility
created pursuant to Section 2.22 by such Ancillary Lender; provided
that at no time shall (a) all Ancillary Commitments of such
Ancillary Lender and the Revolving Credit Exposure of such
Ancillary Lender exceed (b) the Commitment of such Ancillary
Lender.
“
Ancillary Facility ” means any facility made available
for a Subsidiary Borrower by a Lender pursuant to Section
2.22.
“
Ancillary Facility Document ” means, with respect to
any Ancillary Facility, the agreements between the applicable
Subsidiary Borrower and the Ancillary Lender(s) thereunder
providing such Ancillary Facility.
“
Ancillary Facility Exposure ” means, with respect to
any Lender at any time, the Dollar Equivalent of the outstanding
principal amount of such Lender’s Ancillary Loans at such
time.
2
“
Ancillary Facility Termination Date ” has the meaning
assigned to such term in Section 2.22(e)(i).
“
Ancillary Lender ” means, with respect to any
Ancillary Facility, the Lender that has made such Ancillary
Facility available under Section 2.22.
“
Ancillary Loan ” means, at any time, a loan under an
Ancillary Facility in respect of which the applicable Ancillary
Lender has advanced funds to the Subsidiary Borrower
thereunder.
“
Anti-Terrorism Law ” means each of: (a) the
Executive Order; (b) the Patriot Act; (c) the Money
Laundering Control Act of 1986, 18 U.S.C. Sect. 1956; and
(d) any other governmental rule now or hereafter enacted to
monitor, deter or otherwise prevent terrorism or the funding or
support of terrorism.
“
Applicable Agent ” means (a) with respect to a Loan or
Borrowing denominated in Dollars or with respect to any payment
that does not relate to any Loan or Borrowing, the Administrative
Agent and (b) with respect to a Loan or Borrowing denominated in a
Foreign Currency, the Administrative Agent or an Affiliate thereof
designated pursuant to Section 8.07.
“
Applicable Creditor ” has the meaning assigned to such
term in Section 9.15(b).
“
Applicable Adjusted Percentage ” means, with respect
to any Lender, the percentage of (a) the Aggregate Commitments
minus the Aggregate Ancillary Commitments, represented by (b) such
Lender’s Commitment minus such Lender’s Ancillary
Commitments. If the Commitments have terminated or expired, the
Applicable Adjusted Percentage shall be determined based upon the
Commitments and Ancillary Commitments most recently in effect,
giving effect to any assignments.
“
Applicable Percentage ” means, with respect to any
Lender, the percentage of the Aggregate Commitments represented by
such Lender’s Commitment. If the Commitments have terminated
or expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to any
assignments.
“
Applicable Rate ” means, for any day, with respect to
any ABR Loan, Eurocurrency Loan, Swingline Loan bearing interest at
the Overnight LIBOR Rate or with respect to the facility fees
payable hereunder, as the case may be, the applicable rate per
annum set forth below based upon the Leverage Ratio as of the most
recent Determination Date:
|
Level
|
Leverage Ratio
|
ABR Spread
|
Eurocurrency or Overnight LIBOR
Spread
|
Facility Fee Rate
|
|
1
|
< 2.00
|
30.0 bps
|
130.0 bps
|
20.0 bps
|
|
2
|
>= 2.00 < 2.25
|
50.0 bps
|
150.0 bps
|
25.0 bps
|
|
3
|
>= 2.25 < 2.50
|
65.0 bps
|
165.0 bps
|
35.0 bps
|
|
4
|
>= 2.50 < 3.00
|
110.0 bps
|
210.0 bps
|
40.0 bps
|
|
5
|
>= 3.00
|
180.0 bps
|
280.0 bps
|
45.0 bps
|
The Applicable Rate shall be
determined in accordance with the foregoing table based on the
Leverage Ratio as of each Determination Date, as calculated for the
four most recently ended consecutive fiscal quarters of the U.S.
Borrower; provided , however, that during the Step-Up
Period, the Applicable Rate with respect to any Loan shall be 75.0
bps higher than the rate set forth in the foregoing
table.
3
Adjustments, if any, to the
Applicable Rate shall be effective five Business Days after the
Administrative Agent is scheduled to receive the applicable
financials under Section 5.01(a) or (b) and certificate under
Section 5.01(c). If the U.S. Borrower fails to deliver the
financials to the Administrative Agent at the time required
hereunder, then the Applicable Rate shall be set at Level 5 until
five Business Days after such financials are so delivered.
Notwithstanding anything herein to the contrary, the Applicable
Rate shall be set at Level 1 as of the Restatement Effective Date
hereof and shall be adjusted for the first time based on the
Leverage Ratio as of the last fiscal quarter of 2009;
provided , however , that for purposes of calculating
such Leverage Ratio, Consolidated Indebtedness shall be as of the
date the Administrative Agent is scheduled to receive the
financials under Section 5.01(b) and certificate under Section
5.01(c) with respect to such quarter. For the avoidance of doubt,
the Applicable Rate as in effect under the Original Agreement
immediately prior to the Restatement Effective Date shall be
applicable to all interest and facility fees accruing prior to the
Restatement Effective Date.
“
Approved Fund ” has the meaning assigned to such term
in Section 9.04.
“
Assignment and Assumption ” means an assignment and
assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent, in
the form of Exhibit A or any other form approved by the
Administrative Agent.
“
Available Unused Commitment ” means, with respect to a
Lender at any time, an amount equal to the amount by which (a) the
Commitment of such Lender at such time exceeds (b) the sum of (i)
the Revolving Credit Exposure of such Lender at such time and (ii)
the Ancillary Commitments (if any) of such Lender at such
time.
“
Availability Period ” means the period from and
including the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the
Commitments.
“
Board ” means the Board of Governors of the Federal
Reserve System of the United States of America.
“
Board of Directors ” means: (a) with respect to a
corporation, the board of directors of the corporation or such
directors or committee serving a similar function; (b) with respect
to a limited liability company, the board of managers of the
company or such managers or committee serving a similar function;
(c) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and (d) with respect to any
other Person, the managers, directors, trustees, board or committee
of such Person or its owners serving a similar function.
“
Borrowers ” means the U.S. Borrower and the Subsidiary
Borrowers.
“
Borrowing ” means (a) Revolving Loans of the same
Type, made, converted or continued on the same date and, in the
case of Eurocurrency Loans, as to which a single Interest Period is
in effect, (b) Ancillary Loans of the same Type, made,
converted or continued on the same date and made with respect to
the same Ancillary Facility, (c) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect or (d) a Swingline
Loan.
“
Borrowing Minimum ” means (a) in the case of a
Revolving Borrowing denominated in Dollars, $3,000,000, (b) in the
case of a Revolving Borrowing denominated in a Foreign Currency,
the smallest amount of such Foreign Currency that is a multiple of
1,000,000 units of such Foreign Currency and has a Dollar
Equivalent in excess of $3,000,000, (c) in the case of a
Competitive Loan denominated in Dollars, $5,000,000, (d) in the
case of a Competitive Loan denominated in a Foreign Currency, the
smallest
4
amount of such Foreign Currency
that is a multiple of 1,000,000 units of such Foreign Currency and
has a Dollar Equivalent in excess of $5,000,000, (e) in the case of
an Ancillary Borrowing, such amount agreed upon in the relevant
Ancillary Facility Document, (f) in the case of a Swingline
Borrowing denominated in Dollars, $500,000 or such other amount
agreed to by the Swingline Lender, and (g) in the case of a
Swingline Borrowing denominated in a Foreign Currency, the smallest
amount of such Foreign Currency that is a multiple of 100,000 units
of such Foreign Currency and has a Dollar Equivalent in excess of
$500,000 or such other amount agreed to by the Swingline
Lender.
“
Borrowing Multiple ” means (a) in the case of a
Revolving Borrowing denominated in Dollars, $500,000, (b) in the
case of a Revolving Borrowing denominated in a Foreign Currency,
500,000 units of such Foreign Currency, (c) in the case of a
Competitive Loan denominated in Dollars, $1,000,000, (d) in the
case of a Competitive Loan denominated in a Foreign Currency,
1,000,000 units of such Foreign Currency, (e) in the case of an
Ancillary Borrowing, such amount agreed upon in the relevant
Ancillary Facility Document, (f) in the case of a Swingline
Borrowing denominated in Dollars, $100,000 or such other amount
agreed to by the Swingline Lender, and (g) in the case of a
Swingline Borrowing denominated in a Foreign Currency, 100,000
units of such Foreign Currency or such other amount agreed to by
the Swingline Lender.
“
Borrowing Request ” means a request by the Borrower
for a Revolving Borrowing in accordance with Section
2.03.
“
Business Day ” means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City or
San Francisco, California are authorized or required by law to
remain closed; provided that, when used in connection with a
Eurocurrency Loan, the term “ Business Day ”
shall also exclude any day on which banks are not open for dealings
in deposits in the currency in which such Eurocurrency Loan is
denominated in the London interbank market.
“
CAM ” means the mechanism for the allocation and
exchange of interests in the Loans and participations in Letters of
Credit and collections thereunder established under Article
X.
“
CAM Exchange ” means the exchange of the
Lenders’ interests provided for in Section 10.01.
“
CAM Exchange Date ” means the first date after the
Effective Date on which there shall occur (a) any event described
in paragraph (h) or (i) of Section 7.01 with respect to any
Borrower or (b) an acceleration of Advances pursuant to Article
VII.
“
CAM Percentage ” means, as to each Lender, the
Applicable Percentage calculated immediately prior to the CAM
Exchange Date.
“
Capital Lease Obligations ” of any Person means the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
“
Change in Control ” means (a) the membership of the
U.S. Borrower’s Board of Directors changes by more than 50%
during any 12-month period, or the number of members on the U.S.
Borrower’s Board of Directors either increases or decreases
by more than 50% during any 12 month period, (b) any person or
group or persons (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended) shall obtain ownership
or control in one or more series of transactions of more than 33%
of the common Equity Interests or 33% of the voting power of the
Equity
5
Interests of the U.S. Borrower
entitled to vote in the election of members of the Board of
Directors of the U.S. Borrower, or (c) there shall have occurred
under any credit agreement, indenture or other instrument
evidencing any Indebtedness in excess of $10,000,000 any
“change in control” or similar term (as defined in such
credit agreement, indenture or other evidence of Indebtedness)
obligating, or permitting the holders of such Indebtedness to
obligate, the U.S. Borrower or any of its Subsidiaries to
repurchase, redeem or repay all or any part of the Indebtedness or
Equity Interests provided for therein.
“
Change in Law ” means (a) the adoption of any law,
rule or regulation after the Original Effective Date (b) any change
in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the
Original Effective Date or (c) compliance by any Lender or the
Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing
Bank’s holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the Original Effective
Date.
“
Class ”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans, Competitive Loans or Swingline
Loans.
“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time.
“
Commitment ” means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of
such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be reduced from time to time pursuant to Section
2.09 or 9.04. The amount of each Lender’s Commitment as of
the Restatement Effective Date is set forth on Schedule 2.01, or in
the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable. The aggregate amount of
the Lenders’ Commitments as of the Restatement Effective Date
is $150,000,000. Notwithstanding the foregoing, any Competitive
Loans made by a Lender shall not reduce such Lender’s
Commitment or its obligation to lend its pro rata share of the
undrawn portion of the Aggregate Commitment.
“
Competitive Bid ” means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
“
Competitive Bid Rate ” means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
“
Competitive Bid Request ” means a request by the U.S.
Borrower for Competitive Bids in accordance with
Section 2.04.
“
Competitive Loan ” means a Loan made pursuant to
Section 2.04.
“
Competitive Loan Exposure ” means, with respect to any
Lender at any time, the outstanding principal amount of such
Lender’s Competitive Loans at such time.
“
Consolidated EBITDA ” means, with reference to any
period, the net income (or loss) of the U.S. Borrower and its
Subsidiaries for such period, plus , to the extent deducted
from revenues in determining such net income, (a) Consolidated
Interest Expense, (b) expense for income taxes paid or accrued,
(c) depreciation, (d) amortization, (e) other non-cash
expenses, including non-cash, share-based compensation deducted
from net income in accordance with SFAS 123(R), (f) non-recurring
costs or expenses incurred in connection with a restructuring or
permitted merger or acquisition (in each case,
6
with the written consent of the
Administrative Agent, which shall not be unreasonably withheld) and
(g) extraordinary non-cash losses incurred other than in the
ordinary course of business, minus , to the extent included
in such net income, extraordinary gains realized other than in the
ordinary course of business, all as determined in accordance with
GAAP and calculated for the U.S. Borrower and its Subsidiaries on a
consolidated basis.
“
Consolidated Indebtedness ” means at any time the
Indebtedness of the U.S. Borrower and its Subsidiaries calculated
on a consolidated basis.
“
Consolidated Interest Expense ” means, with reference
to any period, the Interest Expense of the U.S. Borrower and its
Subsidiaries calculated on a consolidated basis for such
period.
“
Consolidated Total Assets ” means, as of any date, the
total assets of the U.S. Borrower and the consolidated
Subsidiaries, determined in accordance with GAAP, as set forth on
the consolidated balance sheet of the U.S. Borrower as of such
date.
“
Contractual Obligation ” means, as to any Person, any
material provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
“
Control ” means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “
Controlling ” and “ Controlled ”
have meanings correlative thereto.
“
Default ” means any event or condition which
constitutes an Event of Default or which upon notice, lapse of time
or both would, unless cured or waived, become an Event of
Default.
“
Defaulting Lender ” means any Lender with respect to
which a Lender Default is in effect.
“
Designated Person ” means any Person who (a) is named
on the list of Specially Designated Nationals or Blocked Persons
maintained by the U.S. Department of the Treasury’s Office of
Foreign Assets Control and/or any other similar lists maintained by
the U.S. Department of the Treasury’s Office of Foreign
Assets Control pursuant to authorizing statute, executive order or
regulation, (b) (i) is a Person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of
the Executive Order or any related legislation or any other similar
executive order(s) or (ii) engages in any dealings or transactions
prohibited by Section 2 of the Executive Order or is otherwise
associated with any such Person in any manner violative of Section
2 of the Executive Order or (c) (i) is an agency of the government
of a country, (ii) an organization controlled by a country, or
(iii) a Person resident in a country that is subject to a sanctions
program identified on the list maintained by the U.S. Department of
the Treasury’s Office of Foreign Assets Control, or as
otherwise published from time to time, as such program may be
applicable to such agency, organization or Person.
“
Determination Date ” means (a) for purposes of the
definition of “Applicable Rate”, the last day of any
fiscal quarter of the Borrower, (b) for purposes of Section
6.03(c)(iv) with respect to any acquisition, the date such
acquisition closes, (c) for purposes of Section 6.04(d) with
respect to any investment, loan or advance, the date such
investment, loan or advance is made, (d) for purposes of Section
6.06(c)(ii) or 6.06(c)(iii) with respect to any Restricted Payment,
the date such Restricted Payment is made and (e) for purposes of
Section 6.13(b) with respect to any Senior Notes Prepayment, the
date on which such Senior Notes Prepayment is made.
7
“
Disclosed Matters ” means the actions, suits and
proceedings and the environmental matters disclosed in
Schedule 3.06.
“
Disqualified Stock ” means any Equity Interest that,
by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option
of the holder thereof, in whole or in part.
“
Documentation Agents ” means Bank of America, N.A. and
JPMorgan Chase Bank, N.A., in their capacity as documentation
agents for the Lenders hereunder.
“
Dollars ” or “ $ ” refers to lawful
money of the United States of America.
“
Dollar Equivalent ” means, on any date of
determination (a) with respect to any amount in Dollars, such
amount, and (b) with respect to any amount in any Foreign Currency,
the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.05 using the Exchange
Rate with respect to such Foreign Currency at the time in effect
under the provisions of such Section.
“
Domestic Subsidiary ” means any Subsidiary that is not
a Foreign Subsidiary.
“
EMU Legislation ” means the legislative measures of
the European Union for the introduction of, changeover to or
operation of the euro in one or more member states of the European
Union.
“
Environmental Laws ” means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to
the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous
Material or to health and safety matters.
“
Environmental Liability ” means any liability,
contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of
the U.S. Borrower or any Subsidiary 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 Interests ” means shares of capital stock,
partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
“
ERISA ” means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
“
ERISA Affiliate ” means any trade or business (whether
or not incorporated) that, together with the U.S. Borrower, is
treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
8
“
ERISA Event ” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived (or, for years in
which funding requirements are governed by the PPA, any failure to
satisfy the applicable minimum funding standards under Section
412(a)(2) of the Code or Section 302(a)(2) of ERISA, whether or not
waived); (c) the filing pursuant to Section 412(d) of the
Code or Section 303 of ERISA (or, for years in which the PPA
applies to any Plan, Section 412(c) of the Code or Section 302(c)
of ERISA) of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the
U.S. Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the U.S. Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the U.S. Borrower or any
of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the U.S. Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan
from the U.S. Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV
of ERISA.
“
Euro ” or “ € ” means the
single currency of the European Union as constituted by the treaty
establishing the European Community being the Treaty of Rome, as
amended from time to time and as referred to in the EMU
Legislation.
“
Eurocurrency ”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate (or, in the case of a
Competitive Loan, the LIBO Rate).
“
Event of Default ” has the meaning assigned to such
term in Article VII.
“
Exchange Rate ” means on any day, for purposes of
determining the Dollar Equivalent of any other currency, the rate
at which such other currency may be exchanged into Dollars at the
time of determination on such day on the Reuters WRLD Page for such
currency. In the event that such rate does not appear on any
Reuters WRLD Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent
and the Borrowers, or, in the absence of such an agreement, such
Exchange Rate shall instead be the arithmetic average of the spot
rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such
currency are then being conducted, at or about such time as the
Administrative Agent shall elect after determining that such rates
shall be the basis for determining the Exchange Rate, on such date
for the purchase of Dollars for delivery two Business Days later;
provided that if at the time of any such determination, for
any reason, no such spot rate is being quoted, the Administrative
Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive
absent manifest error.
“
Exchange Rate Date ” means, if on such date any
outstanding Loan is (or any Loan that has been requested at such
time would be) denominated in a currency other than Dollars, each
of:
(a)
the last Business Day of
each calendar month,
(b)
if an Event of Default
has occurred and is continuing, the CAM Exchange Date and any other
Business Day designated as an Exchange Rate Date by the
Administrative Agent in its sole discretion, and
9
(c)
each date (with such date
to be reasonably determined by the Administrative Agent) that is on
or about the date of (i) a Borrowing Request or an Interest
Election Request with respect to any Revolving Borrowing or (ii)
each request for the issuance, amendment, renewal or extension of
any Ancillary Loan, Letter of Credit or Swingline Loan.
“
Excluded Taxes ” means, with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of the U.S. Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United
States of America, or by the State of the United States of America
or other jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction in
which the U.S. Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the U.S.
Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign
Lender’s failure to comply with Section 2.17(e), except to
the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the U.S. Borrower
with respect to such withholding tax pursuant to Section
2.17(a).
“
Executive Order ” means Executive Order No. 13224 on
Terrorist Financings: — Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten To Commit, or
Support Terrorism issued on 23rd September, 2001, as amended by
Order No. 13268 and as further amended after the date
hereof.
“
Existing Letters of Credit ” has the meaning assigned
to such term in Section 2.06(n).
“
Federal Funds Effective Rate ” means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100
of 1%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations
for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing
selected by it.
“
Financial Officer ” means the chief financial officer,
principal accounting officer, treasurer or controller of the U.S.
Borrower.
“
Fixed Rate ” means, with respect to any Competitive
Loan (other than a Eurocurrency Competitive Loan), the fixed rate
of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.
“
Fixed Rate Loan ” means a Competitive Loan bearing
interest at a Fixed Rate.
“
Foreign Currency ” means (a) with respect to an
Ancillary Facility, any currency acceptable to the Administrative
Agent that is freely available, freely transferable and freely
convertible into Dollars and in which dealings in deposits are
carried on in the London interbank market and (b) otherwise, Euros
and Sterling.
10
“
Foreign Lender ” means any Lender that is organized
under the laws of a jurisdiction other than that in which the U.S.
Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
“
Foreign Subsidiary ” means any Subsidiary that is
incorporated or organized under the laws of any jurisdiction other
than the United States of America, any State thereof or the
District of Columbia.
“
GAAP ” means generally accepted accounting principles
in the United States of America.
“
Governmental Authority ” means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government.
“
Guarantee ” of or by any Person (the “
guarantor ”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any
other Person (the “ primary obligor ”) in any
manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided , that the term
Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
“
Hazardous Materials ” means all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant
to any Environmental Law.
“
Indebtedness ” of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations
of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by
such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such
Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters
of credit and letters of guaranty, (j) all obligations, contingent
or otherwise, of such Person in respect of bankers’
acceptances, (k) all Off-Balance Sheet Liabilities of such Person,
(l) all obligations under any Disqualified Stock of such Person and
(m) the Net Mark-to-Market Exposure of such Person under Swap
Agreements. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is
not liable therefor.
11
Indebtedness of any Person shall
not include (i) leases under which such Person is lessee that are
true operating leases or (ii) such Person’s obligations under
performance bonds.
“
Indemnified Taxes ” means Taxes other than Excluded
Taxes.
“
Index Debt ” means senior, unsecured, long-term
indebtedness for borrowed money of the U.S. Borrower that is not
guaranteed by any other Person or subject to any other credit
enhancement.
“
Information Memorandum ” means the Confidential
Information Memorandum dated November, 2007 relating to the U.S.
Borrower and the Transactions.
“
Interest Coverage Ratio ” means, as of the end of any
fiscal quarter of the U.S. Borrower, the ratio of Consolidated
EBITDA to Consolidated Interest Expense, as calculated for the four
consecutive fiscal quarters of the U.S. Borrower then
ending.
“
Interest Election Request ” means a request by the
U.S. Borrower to convert or continue a Revolving Borrowing in
accordance with Section 2.08.
“
Interest Expense ” means, with respect to any person
for any period, the sum of (a) gross interest expense of such
person for such period on a consolidated basis, including (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including fees with respect to Swap Agreements) payable in
connection with the incurrence of Indebtedness to the extent
included in interest expense, (iii) the portion of any payments or
accruals with respect to Capital Lease Obligations allocable to
interest expense and (iv) commissions, discounts, yield and other
fees and charges incurred in connection with the asset
securitization or similar transaction which are payable to any
person other than the U.S. Borrower or a Wholly-Owned Subsidiary
and (b) capitalized interest of such person. For purposes of the
foregoing, gross interest expense shall be determined after giving
effect to any net payments made or received by the U.S. Borrower
and the Subsidiaries with respect to Swap Agreements.
“
Interest Payment Date ” means (a) with respect to
any ABR Loan (other than a Swingline Loan), the last day of each
March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than three
months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period, (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more
than 90 days’ duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day
of such Interest Period that occurs at intervals of 90 days’
duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request
as Interest Payment Dates with respect to such Borrowing and
(d) with respect to any Swingline Loan, the 15th and last day
of each month.
“
Interest Period ” means (a) with respect to any
Eurocurrency Revolving Borrowing, the period commencing on the date
of such Borrowing and ending on the numerically corresponding day
in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, such other period requested
by a Borrower) thereafter, as a Borrower may elect, and (b) with
respect to any Fixed Rate Borrowing, the period (which shall not be
less than 1 day or more than 270 days) commencing on the date of
such Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided , that (i) if any Interest
Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in
which case
12
such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurocurrency Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such
Borrowing.
“
Issuing Bank ” means Wells Fargo (or Trade Bank, as
agent for Wells Fargo), in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided
in Section 2.06(i) or the issuer of Existing Letters of Credit
deemed issued hereunder. The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank or another Lender, in which case the
term “Issuing Bank” shall include any such Affiliate or
other Lender with respect to Letters of Credit issued by such
Affiliate or other Lender.
“
Judgment Currency ” has the meaning assigned to such
term in Section 9.15(b).
“
LC Disbursement ” means a payment made by the Issuing
Bank pursuant to a Letter of Credit.
“
LC Exposure ” means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the U.S.
Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Adjusted Percentage of the total LC
Exposure at such time.
“
Lender Default ” means (a) the refusal (which has not
been retracted) of a Lender to make available its portion of any
Borrowing, to acquire participations in a Swingline Loan pursuant
to Section 2.05 or to fund its portion of any unreimbursed payment
under Section 2.06(e), (b) a Lender having notified in writing the
applicable Borrower and/or the Applicable Agent that it does not
intend to comply with its obligations under Section 2.05, 2.06 or
2.07 or (c) the refusal of an Ancillary Lender to extend credit
under an Ancillary Facility other than a refusal in accordance with
the terms of the applicable Ancillary Facility Document and the
terms hereof.
“
Lenders ” means the Persons listed on
Schedule 2.01 and any other Person that shall have become a
party hereto pursuant to an Assignment and Assumption, other than
any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption. Unless the context otherwise requires,
the term “Lenders” includes the Swingline
Lender.
“
Letter of Credit ” means any letter of credit issued
pursuant to this Agreement or any letter of credit issued or deemed
issued pursuant to the Original Agreement, which shall be deemed
issued hereunder.
“
Leverage Ratio ” means, as of the applicable
Determination Date, the ratio of (a) Consolidated Indebtedness
as of such date to (b) Consolidated EBITDA, as calculated for the
most recently-ended four fiscal quarter period for which the U.S.
Borrower has delivered financial statements under Section 5.01(a)
or Section 5.01(b). For purposes of calculating the Leverage Ratio,
(i) Consolidated Indebtedness shall not include the success fee
(the “ Success Fee ”) to be incurred by the U.S.
Borrower in connection with Project Offshore (but only to the
extent that such fee does not exceed $25,000,000) and shall not
include the contingent value right (the “CVR ”)
to be granted by the U.S. Borrower in connection with Project
Offshore (but only to the extent that obligations owing by U.S.
Borrower in connection with such right do not exceed $25,000,000)
and (ii) the amount of any loss or gain resulting from any change
in the amount of the Success Fee or the CVR in any applicable
period shall be added to (in the case of any loss) or deducted from
(in the case of any gain), as the case may be, the net income (or
loss) of the U.S. Borrower
13
and its Subsidiaries for purposes
of calculating Consolidated EBITDA for such period; provided
, however , that such addition or deduction shall be without
duplication of any addition to or deduction from net income (or
loss) described in clauses (a) through (g) of the definition of
“Consolidated EBITDA” and shall be made only to the
extent the amount of such loss or gain was included in the
calculation of the net income (or loss) of the U.S. Borrower and
its Subsidiaries for such period.
“
LIBO Rate ” means, with respect to any Eurocurrency
Borrowing for any Interest Period, the rate per annum determined by
the Applicable Agent at approximately 11:00 a.m., London time, on
the Quotation Day for such Interest Period by reference to the
British Bankers’ Association Interest Settlement Rates for
deposits in the currency of such Borrowing (as reflected on the
applicable Reuters screen page), for a period equal to such
Interest Period; provided that, to the extent that an interest rate
is not ascertainable pursuant to the foregoing provisions of this
definition, the “LIBO Rate” shall be the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the
currency of such Borrowing are offered for such Interest Period to
major banks in the London interbank market by Wells Fargo at
approximately 11:00 a.m., London time, on the Quotation Day for
such Interest Period.
“
Lien ” means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as
any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
“
Loan Documents ” means this Agreement, the U.S.
Borrower Guaranty, each Ancillary Facility Document and all
instruments, agreements or other documents executed in connection
herewith at any time.
“
Loans ” means any Competitive Loan, Ancillary Loan,
Swingline Loan or Revolving Loan.
“
Local Time ” means (a) with respect to a Loan or
Borrowing denominated in Dollars, Minneapolis time, and (b) with
respect to a Loan or Borrowing denominated in any Foreign Currency,
London time.
“
Margin ” means, with respect to any Competitive Loan
bearing interest at a rate based on the LIBO Rate, the marginal
rate of interest, if any, to be added to or subtracted from the
LIBO Rate to determine the rate of interest applicable to such
Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
“
Material Adverse Effect ” means a material adverse
effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of the U.S. Borrower and its
Subsidiaries taken as a whole, (b) the ability of any Borrower
to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under
any Loan Document.
“
Material Indebtedness ” means Indebtedness (other than
the Loans and Letters of Credit), or obligations in respect of one
or more Swap Agreements, of any one or more of the U.S. Borrower
and its Subsidiaries in an aggregate principal amount exceeding the
Dollar Equivalent of $10,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the
obligations of the U.S. Borrower or any Subsidiary in respect of
any Swap Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the U.S.
Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.
14
“
Maturity Date ” means June 23, 2012 or such earlier
date as may be determined pursuant to Section 2.09.
“
Moody’s ”means Moody’s Investors Service,
Inc.
“
Multiemployer Plan ” means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
“
Net Mark-to-Market Exposure ” of a Person means, as of
any date of determination, the excess (if any) of all unrealized
losses over all unrealized profits of such Person arising from Swap
Agreements. “Unrealized losses” means the fair market
value of the cost to such Person of replacing such Swap Agreements
as of the date of determination (assuming the Swap Agreements were
to be terminated as of that date), and “unrealized
profits” means the fair market value of the gain to such
Person of replacing such Swap Agreements as of the date of
determination (assuming such Swap Agreements were to be terminated
as of that date).
“
Notice of Termination ” has the meaning assigned to
such term in Section 2.22(e)(ii).
“
Obligations ” means all unpaid principal of, accrued
and unpaid interest and fees and reimbursement obligations on the
Advances, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrowers
or any of them to the Lenders, the Agents, any indemnified party or
any of them arising under the Loan Documents.
“
Off-Balance Sheet Liability ” of a Person means (a)
any obligation under a sale and leaseback transaction which is not
a Capital Lease Obligation, (b) any so-called “synthetic
lease” or “tax ownership operating lease”
transaction entered into by such Person, (c) the amount of
obligations outstanding under the legal documents entered into as
part of any asset securitization or similar transaction on any date
of determination that would be characterized as principal if such
asset securitization or similar transaction were structured as a
secured lending transaction rather than as a purchase or (d) any
other transaction (excluding operating leases for purposes of this
clause (d)) which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
balance sheet of such Person; in all of the foregoing cases,
calculated based on the aggregate outstanding amount of obligations
outstanding under the legal documents entered into as part of any
such transaction on any date of determination that would be
characterized as principal if such transaction were structured as a
secured lending transaction, whether or not shown as a liability on
a consolidated balance sheet of such Person, in a manner reasonably
satisfactory to the Administrative Agent.
“
One-Month LIBO Rate ” means, with respect to any
interest rate calculation for a Loan or other Obligation bearing
interest at the Alternate Base Rate, a rate per annum equal to the
product (rounded upward if necessary to the nearest 1/16th of one
percent) of (a) the rate per annum referred to as the BBA
(British Bankers Association) Interest Settlement Rate, as reported
on the applicable Reuters screen page, or if not reported by
Reuters, as reported by any service selected by the Administrative
Agent, on the applicable day (provided that if such day is not a
Business Day for which a LIBO Rate is quoted, the next preceding
Business Day for which a LIBO Rate is quoted), at or about 11:00
a.m., London time (or as soon thereafter as practicable), for
deposits being delivered in the London interbank market for the
currency in which such Loan or other Obligation is denominated for
a term of one month commencing on such date of determination,
multiplied by (b) the Statutory Reserve Rate in effect on
such day. If for any reason rates are not available as provided in
clause (a) of the preceding sentence, the rate to be used in clause
(a) shall be, at the Administrative Agent’s discretion (in
each case, rounded upward if necessary to the nearest 1/16th of one
percent), (i) the rate per annum at which deposits are
offered to the Administrative Agent in the London interbank market
for the currency in which such Loan or other Obligation is
denominated or (ii) the rate at which deposits are offered to the
Administrative Agent in, or
15
by the Administrative Agent to
major banks in, any offshore interbank market selected by the
Administrative Agent for the currency in which such Loan or other
Obligation is denominated, in each case on the applicable day
(provided that if such day is not a Business Day for which deposits
are offered to the Administrative Agent in the London or such
offshore interbank market, the next preceding Business Day for
which deposits are offered to the Administrative Agent in the
London or such offshore interbank market) at or about 11:00 a.m.,
London time (or as soon thereafter as practicable) (for delivery on
such date of determination) for a one-month term.
“
Other Taxes ” means any and all present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement.
“
Original Agreement ” has the meaning assigned to such
term in the Recitals.
“
Original Effective Date ” means December 18,
2007.
“
Overnight LIBOR Rate ” with respect to any Swingline
Loans, means the per annum rate of interest most recently announced
within Wells Fargo at its principal office in San Francisco,
California as its Overnight LIBOR Rate, with the understanding that
Wells Fargo’s Overnight LIBOR Rate is one of its base rates
and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such
internal publication or publications as Wells Fargo may designate.
Wells Fargo shall base its determination of the Overnight LIBOR
Rate upon such offers for deposits on or other market indicators of
the interbank market as Wells Fargo in its discretion deems
appropriate, and the Overnight LIBOR Rate available to the Borrower
hereunder shall be adjusted by Wells Fargo to take into account the
Statutory Reserve Rate. Any change in the Overnight LIBOR Rate
shall become effective on the date on which each such change in the
Overnight LIBOR Rate is announced within Wells Fargo.
“
Participant ” has the meaning set forth in Section
9.04.
“
Patriot Act ” has the meaning assigned to such term in
Section 9.14.
“
PBGC ” means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
“
Permitted Encumbrances ” means:
(a)
Liens imposed by law for taxes that are not delinquent or are being
contested in compliance with Section 5.04;
(b)
carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed
by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c)
pledges and deposits made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance
and other social security laws or regulations;
(d)
deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
16
(e)
judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f)
easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of
business of the U.S. Borrower or any Subsidiary;
provided
that the term “Permitted
Encumbrances” shall not include any Lien securing
Indebtedness.
“
Permitted Investments ” means any investment that
would qualify as cash equivalents under GAAP and any other
investments permitted by U.S. Borrower’s investment policy as
of the Original Effective Date.
“
Person ” means any natural person, corporation,
limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other
entity.
“
Plan ” means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the U.S.
Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of
ERISA.
“
PPA ” means the Pension Protection Act of
2006.
“
Prime Rate ” means the rate of interest per annum
publicly announced from time to time by Wells Fargo as its prime
rate in effect at its principal office in San Francisco (the Prime
Rate not being intended to be the lowest rate of interest charged
by Wells Fargo in connection with extensions of credit to
borrowers); each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being
effective.
“
Project Offshore ” means the Acquisition contemplated
by the U.S. Borrower to occur after the Restatement Effective Date
described generally as the purchase of all or substantially all of
the Equity Interests of a privately owned global manufacturer of
healthcare related furniture products and for which the aggregate
initial consideration paid by the U.S. Borrower and any Subsidiary
shall not exceed $100,000,000 in the form of the U.S.
Borrower’s Equity Interests and/or cash .
“
Public Debt Securities ” means the U.S.
Borrower’s debt securities due March 15, 2011.
“
Quotation Day ” means, with respect to any
Eurocurrency Borrowing or Swingline Foreign Currency Borrowing and
any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for
deposits in the currency of such Borrowing for delivery on the
first day of such Interest Period. If such quotations would
normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
“
Register ” has the meaning set forth in
Section 9.04.
“
Related Parties ” means, with respect to any specified
Person, such Person’s Affiliates and the respective
directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“
Requirement of Law ” means, as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or
17
determination of an arbitrator or
a court or other Governmental Authority, in each case applicable to
or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
“
Reserve Account ” has the meaning assigned to such
term in Section 10.02(a).
“
Required Lenders ” means, at any time, Lenders having
Commitments representing more than 50% of the sum of the total
Commitments of all Lenders at such time; provided that, for
purposes of declaring the Advances to be due and payable pursuant
to Article VII, and for all purposes after the Advances become due
and payable pursuant to Article VII or the Commitments expire
or terminate, Required Lenders means Lenders having a share of the
Aggregate Total Exposure representing more than 50% of the
Aggregate Total Exposure. The Commitment and share of the Aggregate
Total Exposure of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time.
“
Restatement Effective Date ” means the date on which
the conditions specified in Section 4.01 are satisfied (or
waived in accordance with Section 9.02).
“
Restricted Payment ” means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any Equity Interests in the U.S. 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 Equity Interests in the
U.S. Borrower or any option, warrant or other right to acquire any
such Equity Interests in the U.S. Borrower.
“
Revolving Borrowing ” means a Borrowing of Revolving
Loans.
“
Revolving Credit Exposure ” means, with respect to any
Lender at any time, the Dollar Equivalent of the sum of the
outstanding principal amount of such Lender’s Revolving Loans
and its LC Exposure and Swingline Exposure at such time.
“
Revolving Loan ” means a loan made pursuant to Section
2.01.
“
SEC ” means the Securities and Exchange Commission,
any successor thereto and any analogous Governmental
Authority.
“
Senior Notes ” means the U.S. Borrower’s Series
A Senior Notes due January 3, 2015 and Series B Senior Notes due
January 3, 2018.
“
Senior Notes Prepayment ” has the meaning assigned to
such term in Section 6.13.
“
S&P ” means Standard &
Poor’s.
“
Statutory Reserve Rate ” means a fraction (expressed
as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, One-Month LIBO
Rate or Overnight LIBOR Rate, for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may
be available from time to time to any Lender
18
under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“
Step-Up Election ” has the meaning assigned to such
term in Section 6.11 of this Agreement.
“
Step-Up Election Notice ” has the meaning assigned to
such term in Section 6.11 of this Agreement.
“
Step-Up Period ” means the period commencing on the
date the U.S. Borrower delivers a Step-Up Election Notice to the
Administrative Agent pursuant to Section 6.11 and ending on the
earlier to occur of (a) the one-year anniversary of such date or
(b) the date the U.S. Borrower delivers a Step-Up Termination
Notice to the Administrative Agent pursuant to Section
6.11.
“
Step-Up Termination Notice ” has the meaning assigned
to such term in Section 6.11 of this Agreement.
“
Sterling ” or “ £ ” means the
lawful currency of the United Kingdom of Great Britain and Northern
Ireland.
“
subsidiary ” means, with respect to any Person (the
“ parent ”) at any date, any corporation,
limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if
such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability
company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in
the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or
(b) that is, as of such date, otherwise Controlled, by the
parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.
“
Subsidiary ” means any subsidiary of the U.S.
Borrower.
“
Subsidiary Borrower ” means, at any time, each
Subsidiary that has been designated as a Subsidiary Borrower by the
U.S. Borrower pursuant to Section 2.20, other than a Subsidiary
Borrower that has ceased to be a Subsidiary Borrower as provided in
Section 2.20.
“
Subsidiary Borrower Agreement ” means a Subsidiary
Borrower Agreement substantially in the form of Exhibit
B.
“
Subsidiary Borrower Termination ” means a Subsidiary
Borrower Termination substantially in the form of Exhibit
C.
“
Syndication Agent ” means Wachovia, in its capacity as
syndication agent for the Lenders hereunder.
“
Swap Agreement ” means any agreement with respect to
any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures
of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions;
provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former
directors, officers, employees or consultants of the U.S. Borrower
or the Subsidiaries shall be a Swap Agreement.
19
“
Swingline Dollar Loan ” means a Swingline Loan
denominated in Dollars.
“
Swingline Exposure ” means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time.
The Swingline Exposure of any Lender at any time shall be its
Applicable Adjusted Percentage of the total Swingline Exposure at
such time.
“
Swingline Foreign Currency Loan ” means a Swingline
Loan denominated in a Foreign Currency.
“
Swingline Lender ” means Wells Fargo, in its capacity
as lender of Swingline Loans hereunder and its successors in such
capacity. The Swingline Lender may, in its discretion, arrange for
one or more Swingline Loans to be made by Affiliates of the
Swingline Lender, in which case the term “Swingline
Lender” shall include any such Affiliate with respect to
Swingline Loans made by such Affiliate.
“
Swingline Loan ” means a Loan made pursuant to Section
2.05.
“
Tangible Net Worth ” means, as of any date of
determination, the stockholders’ equity of the U.S. Borrower
as of such date minus the U.S. Borrower’s intangible
assets as of such date, in each case determined on a consolidated
basis in accordance with GAAP.
“
Taxes ” means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
“
Trade Bank ” means Wells Fargo HSBC Trade Bank,
N.A.
“
Transactions ” means the execution, delivery and
performance by the Borrowers of each Loan Document, the borrowing
of Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder.
“
Type ”, when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such Loan, or
on the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate, the Alternate Base Rate or, in the case
of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
“
U.S. Borrower ” means Herman Miller, Inc., a Michigan
corporation, and its successors.
“
U.S. Borrower Guaranty ” means the Guarantee, as
amended, supplemented or otherwise modified from time to time, in
the form of Exhibit E, by the U.S. Borrower in favor of the Lenders
and the Administrative Agent.
“
Wachovia ” means Wachovia Bank, National Association,
a national banking association, and its successors.
“
Wells Fargo ” means Wells Fargo Bank, National
Association, a national banking association, and its
successors.
“
Wholly-Owned Subsidiary ” means, as to any Person, a
subsidiary all of the Equity Interests of which (except
directors’ qualifying Equity Interests) are at the time
directly or indirectly owned by such Person and/or another
Wholly-Owned Subsidiary of such Person.
20
“
Withdrawal Liability ” means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal
from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of
ERISA.
SECTION
1.02. Classification of Loans and Borrowings . For purposes
of this Agreement, Loans may be classified and referred to by Class
( e.g. , a "Revolving Loan") or by Type ( e.g. , a
"Eurocurrency Loan") or by Class and Type ( e.g. , a
"Eurocurrency Revolving Loan"). Borrowings also may be classified
and referred to by Class ( e.g. , a "Revolving Borrowing")
or by Type ( e.g. , a "Eurocurrency Borrowing") or by Class
and Type ( e.g. , a "Eurocurrency Revolving
Borrowing").
SECTION
1.03. Terms Generally . The definitions of terms herein
shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns,
(c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and
contract rights.
SECTION
1.04. Accounting Terms; GAAP; Pro Forma Treatment . Unless
otherwise indicated in this Agreement or any other Loan Document,
all accounting terms used in this Agreement or any other Loan
Document shall be construed, and all accounting and financial
computations hereunder or thereunder shall be computed, in
accordance with GAAP. If (a) the U.S. Borrower elects to change its
accounting practices during the term of this Agreement from those
used in the preparation of the Financial Statements referred to in
Section 3.04, or (b) GAAP changes during the term of this Agreement
such that any covenants contained herein would then be calculated
in a materially different manner or with materially different
components, the U.S. Borrower, the Lenders and the Administrative
Agent agree to negotiate in good faith to amend this Agreement in
such respects as are necessary to conform those covenants as
criteria for evaluating the U.S. Borrower’s financial
condition to substantially the same criteria as were effective
prior to such change by the U.S. Borrower or in GAAP;
provided , however , that, until the U.S. Borrower,
the Lenders and the Administrative Agent so amend this Agreement,
all such covenants shall be calculated in accordance with the
accounting practices or GAAP as in effect immediately prior to such
change. For purposes of calculating the Leverage Ratio (as used in
Section 6.11 and in determining the Applicable Rate) and the
Interest Coverage Ratio, any Acquisition or any sale or other
disposition outside the ordinary course of business by the U.S.
Borrower or any of the Subsidiaries of any asset or group of
related assets in one or a series of related transactions, the net
proceeds from which exceed $1,000,000, including the incurrence of
any Indebtedness and any related financing or other transactions in
connection with any of the foregoing, occurring during the period
for which such ratios are calculated shall be deemed to have
occurred on the first day of the relevant period for which such
ratios were calculated on a pro forma basis acceptable to the
Administrative Agent. Notwithstanding anything to the contrary
herein, all financial statements delivered hereunder shall be
prepared, and all financial covenants contained herein shall be
calculated, without giving effect to any election under Statement
of Financial Accounting Standards 159 (or any similar accounting
principle) permitting a Person to value its financial liabilities
at the fair value thereof.
21
SECTION
1.05. Foreign Currency Calculations . (a) For purposes of
determining the Dollar Equivalent of any Advance denominated in a
Foreign Currency or any related amount, the Administrative Agent
shall determine the Exchange Rate as of the applicable Exchange
Rate Date with respect to each Foreign Currency in which any
requested or outstanding Advance is denominated and shall apply
such Exchange Rates to determine such amount (in each case after
giving effect to any Advance to be made or repaid on or prior to
the applicable date for such calculation).
(b)
For purposes of any determination under Section 6.01, 6.02, 6.04 or
6.09 or under Article VII, all amounts incurred, outstanding
or proposed to be incurred or outstanding in currencies other than
Dollars shall be translated into Dollars at the currency exchange
rates in effect on the date of such determination; provided
that no Default shall arise as a result of any limitation set forth
in Dollars in Section 6.01 or 6.02 being exceeded solely as a
result of changes in currency exchange rates from those rates
applicable at the time or times Indebtedness or Liens were
initially consummated in reliance on the exceptions under such
Sections. For purposes of any determination under Section 6.04 or
6.09, the amount of each investment, asset disposition or other
applicable transaction denominated in a currency other than Dollars
shall be translated into Dollars at the currency exchange rate in
effect on the date such investment, disposition or other
transaction is consummated. Such currency exchange rates shall be
determined in good faith by the Borrowers.
SECTION
1.06. Redenomination of Certain Foreign Currencies . (a)
Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency
after the Original Effective Date shall be redenominated into Euro
at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement
in respect of that currency shall be inconsistent with any
convention or practice in the London Interbank Market for the basis
of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from
the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Borrowing, at
the end of the then current Interest Period.
(b)
Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and (i) without limiting
the liability of any Borrower for any amount due under this
Agreement and (ii) without increasing any Commitment of any Lender,
all references in this Agreement to minimum amounts (or integral
multiples thereof) denominated in the national currency unit of any
member state of the European Union that adopts the Euro as its
lawful currency after the Original Effective Date shall,
immediately upon such adoption, be replaced by references to such
minimum amounts (or integral multiples thereof) as shall be
specified herein with respect to Borrowings denominated in
Euros.
(c)
Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may
from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro or
any other Foreign Currency.
SECTION
1.07. Amendment and Restatement . It is intended by the
parties hereto that (a) all Obligations of the parties under the
Original Agreement shall continue to exist under and be evidenced
by this Agreement and the other Loan Documents; and (b) except as
expressly stated herein or amended hereby, the Original Agreement
and the other Loan Documents are ratified and confirmed as
remaining unmodified and in full force and effect with respect to
all Obligations; it being understood that it is the intent of the
parties hereto that this Agreement does not constitute a novation
of rights, obligations
22
and liabilities of the respective
parties (including the Obligations) existing under the Original
Agreement and such rights, obligations and liabilities shall
continue and remain outstanding, and that this Agreement amends,
restates and replaces in its entirety the Agreement. From and after
the Restatement Effective Date, all Obligations of the Borrowers
under the Original Agreement shall become Obligations of such
Persons hereunder, and all Obligations, if any, of the Subsidiary
Borrowers shall become fully and continuously guaranteed by the
U.S. Borrower pursuant to the U.S. Borrower Guaranty. Upon the
effectiveness of this Agreement in accordance with Section 4.01,
each Loan Document other than the Original Agreement that was in
effect immediately prior to the Restatement Effective Date shall
continue to be effective and, unless the context otherwise
requires, any reference to the Original Agreement contained therein
shall be deemed to refer to this Agreement and any reference to the
Loans or Obligations shall be deemed to refer to the Loans and
Obligations under this Agreement. This Agreement, and each of the
amendments to the Original Agreement effected hereby on the
Restatement Effective Date, is binding on each Lender party to the
Original Agreement as of the Restatement Effective Date,
notwithstanding that this Agreement may be signed by the Required
Lenders but not all Lenders.
ARTICLE II
The Credits
SECTION
2.01. Commitments . Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans
denominated in Dollars and Foreign Currencies to the U.S. Borrower
and to Subsidiary Borrowers (other than any Subsidiary Borrower for
which an Ancillary Commitment has been established under Section
2.22) from time to time during the Availability Period in an
aggregate principal amount that will not result in any of
following:
(a)
such Lender’s Revolving Credit Exposure exceeding (i) such
Lender’s Commitment minus (ii) such Lender’s Ancillary
Commitments;
(b)
(i) the Aggregate Revolving Credit Exposure plus the Aggregate
Competitive Loans exceeding (ii) the Aggregate Commitments minus
the Aggregate Ancillary Commitments;
(c)
the Dollar Equivalent of the aggregate amount of all Revolving
Loans and Swingline Loans denominated in any Foreign Currency
exceeding $60,000,000.
Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Revolving Loans.
SECTION
2.02. Loans and Borrowings . (a) Each Revolving Loan shall
be made as part of a Borrowing consisting of Loans of the same Type
made by the Lenders ratably in accordance with their respective
Applicable Adjusted Percentage on the date such Loans are made
hereunder (or, in the case of Swingline Loans, in accordance with
Section 2.05). Each Ancillary Loan shall be made as part of a
Borrowing consisting of Loans of the same Type made by the
applicable Ancillary Lenders with an Ancillary Commitment for such
Ancillary Loan ratably in accordance with such Ancillary
Commitments on the date such Ancillary Loans and otherwise in
accordance with the applicable Ancillary Facility Document. Each
Competitive Loan shall be made in accordance with the procedures
set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments, the
Ancillary Commitments and Competitive Bids of the Lenders are
several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.
23
(b)
Subject to Section 2.14, (i) each Revolving Borrowing denominated
in Dollars shall be comprised entirely of ABR Loans or Eurocurrency
Loans as the applicable Borrower may request in accordance
herewith, (ii) each Revolving Borrowing denominated in a Foreign
Currency and each Ancillary Borrowing shall be comprised entirely
of Eurocurrency Loans and (iii) each Competitive Borrowing
shall be comprised entirely of Eurocurrency Loans or Fixed Rate
Loans as the U.S. Borrower may request in accordance herewith. Each
Swingline Borrowing shall be comprised of the Types of Loans set
forth in Section 2.05. Each Lender at its option may make any ABR
Loan or Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the
applicable Borrower to repay such Loan in accordance with the terms
of this Agreement and such Lender shall not be entitled to any
amounts payable under Section 2.15, 2.17 or 2.21 solely in respect
of increased costs resulting from such exercise.
(c)
Each Borrowing shall be in an aggregate amount that is an integral
multiple of the applicable Borrowing Multiple and not less than the
applicable Borrowing Minimum, provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section
2.06(e). Borrowings of more than one Type may be outstanding at the
same time; provided that there shall not at any time be more than a
total of eight Eurocurrency Borrowings outstanding.
(d)
Each Lender may, at its option, make any Loan available to any
Foreign Subsidiary Borrower by causing any foreign or domestic
branch or Affiliate of such Lender to make such Loan;
provided , that (i) any exercise of such option shall not
affect the obligation of such Foreign Subsidiary Borrower to repay
such Loan in accordance with the terms of this Agreement, and (ii)
for all purposes of voting or consenting with respect to (x) any
amendment, supplementation or modification of any Loan Document,
(y) any waiver of any requirements of any Loan Document or any
Default or Event of Default and its consequences, or (z) any other
matter as to which a Lender may vote or consent related to the Loan
Documents, such Lender shall so vote or consent, not such foreign
or domestic branch or Affiliate of such Lender.
(e)
Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date.
SECTION
2.03. Requests for Revolving Borrowings . To request a
Revolving Borrowing, the applicable Borrower shall notify the
Applicable Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing, not later than 2:00 p.m., Local Time, three
Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 2:00 p.m., Local Time,
one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing
to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e) may be given not later than 10:00 a.m., Local
Time, on the date of the proposed Borrowing. Notwithstanding the
foregoing, in the case of a Loan denominated in a Foreign Currency,
the applicable Borrower shall notify the Applicable Agent of such
request by telephone not later than 2:00 p.m., Local Time, four
Business Days before the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Applicable
Agent of a written Borrowing Request in a form approved by the
Applicable Agent and signed by the applicable Borrower. Each such
telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
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(i)
the Borrower requesting
such Borrowing;
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24
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(ii)
in the case of a Revolving Borrowing in a Foreign Currency
requested by a Subsidiary Borrower, the Foreign Currency in which
such Borrowing is to be denominated;
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(iii)
the aggregate amount of the requested Borrowing (expressed in
Dollars or the applicable Foreign Currency);
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(iv)
the date of such Borrowing, which shall be a Business
Day;
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(v)
in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
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(vi)
in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period
contemplated by clause (a) of the definition of the term
“Interest Period”; and
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(vii)
the location and number of the applicable Borrower’s account
to which funds are to be disbursed.
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If
no election as to the Type of Revolving Borrowing is specified,
then the requested Revolving Borrowing shall be an ABR Borrowing,
unless such Revolving Borrowing is denominated in a Foreign
Currency, in which case such Revolving Borrowing shall be a
Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of
a Borrowing Request in accordance with this Section, the Applicable
Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the
requested Borrowing. Requests for Ancillary Loans shall be made in
accordance with the applicable Ancillary Facility
Document.
SECTION
2.04. Competitive Bid Procedure . (a) Subject to the terms
and conditions set forth herein, from time to time during the
Availability Period the U.S. Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive
Bids and borrow Competitive Loans; provided that the
borrowing of any such Competitive Loan will not result in (i) the
(A) Aggregate Revolving Credit Exposure plus the Aggregate
Competitive Loans exceeding (B) the Aggregate Commitments minus the
Aggregate Ancillary Commitments or (ii) the Aggregate Total
Exposure exceeding the Aggregate Commitments. To request
Competitive Bids, the U.S. Borrower shall notify the Administrative
Agent of such request by telephone, in the case of a Eurocurrency
Borrowing, not later than 11:00 a.m., Local Time, four Business
Days before the date of the proposed Borrowing and, in the case of
a Fixed Rate Borrowing, not later than 10:00 a.m., Local Time, two
Business Days before the date of the proposed Borrowing;
provided that the U.S. Borrower may not submit more than one
Competitive Bid Request on the same day, and a Competitive Bid
Request shall not be made within five (5) Business Days after the
date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or
all Competitive Bids received in response thereto rejected.
Further, a Competitive Bid Request may not contain a request for
(i) more than one Type of loan, or (ii) Loans having more than
three (3) different Interest Periods. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative
Agent and signed by the U.S. Borrower. Each such telephonic and
written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
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(i)
the aggregate amount of the requested Borrowing;
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25
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(ii)
the date of such Borrowing, which shall be a Business
Day;
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(iii)
whether such Borrowing is to be a Eurocurrency Borrowing or a Fixed
Rate Borrowing;
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(iv)
the Interest Period to be applicable to such Borrowing, which shall
be a period contemplated by the definition of the term
“Interest Period”; and
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(v)
the location and number of the U.S. Borrower’s account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
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Promptly following receipt of a
Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive
Bids.
(b)
Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the U.S. Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received
by the Administrative Agent by telecopy, in the case of a
Eurocurrency Competitive Borrowing, not later than 9:30 a.m.,
Local Time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 9:30 a.m., Local Time, one Business Day before
the date of such Competitive Borrowing. Competitive Bids that do
not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent,
and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be a minimum of
$5,000,000 and an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Borrowing
requested by the U.S. Borrower) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid
Rate or Rates at which the Lender is prepared to make such Loan or
Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day
thereof.
(c)
The Administrative Agent shall promptly notify the U.S. Borrower by
telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender
that shall have made such Competitive Bid.
(d)
Subject only to the provisions of this paragraph, the U.S. Borrower
may accept or reject any Competitive Bid. The U.S. Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy
in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in
the case of a Eurocurrency Competitive Borrowing, not later than
10:30 a.m., Local Time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., Local Time, one Business
Day before the date of the Competitive Borrowing; provided
that (i) the failure of the U.S. Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid,
(ii) the U.S. Borrower shall not accept a Competitive Bid made
at a particular Competitive Bid Rate if the U.S. Borrower rejects a
Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by
the U.S. Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related
Competitive Bid Request, (iv) to the extent necessary to
comply with clause (iii) above, the U.S. Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which
acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for
a Competitive
26
Loan unless such Competitive Loan
is in a minimum principal amount of the Borrowing Minimum and an
integral multiple of the Borrowing Multiple; provided
further that if a Competitive Loan must be in an amount less
than the Borrowing Minimum because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids
at a particular Competitive Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples of $1,000,000 in a
manner determined by the U.S. Borrower. A notice given by the U.S.
Borrower pursuant to this paragraph shall be
irrevocable.
(e)
The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and
each successful bidder will thereupon become bound, subject to the
terms and conditions hereof, to make the Competitive Loan in
respect of which its Competitive Bid has been accepted.
(f)
If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid
directly to the U.S. Borrower at least one quarter of an hour
earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
SECTION
2.05. Swingline Loans . (a) Subject to the terms and
conditions set forth herein, the Swingline Lender may make
Swingline Loans in Dollars to the U.S. Borrower from time to time
during the Availability Period, in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding
$15,000,000, (ii) the (A) Aggregate Revolving Credit Exposure plus
the Aggregate Competitive Loans exceeding (B) the Aggregate
Commitments minus the Aggregate Ancillary Commitments or (iii) the
Aggregate Total Exposure exceeding the Aggregate Commitments.
Within the foregoing limits and subject to the terms and conditions
set forth herein, the U.S. Borrower may borrow, prepay and reborrow
Swingline Loans.
(b)
To request a Swingline Borrowing, the U.S. Borrower shall notify
the Applicable Agent of such request by telephone (confirmed in a
writing acceptable to the Applicable Agent if requested by the
Applicable Agent), not later than 12:00 noon, Local Time, on the
day of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify (i) the requested date (which shall
be a Business Day) and (ii) the amount of the requested Swingline
Borrowing. The Applicable Agent shall promptly advise the Swingline
Lender of any such notice received from the U.S. Borrower. The
Swingline Lender and the U.S. Borrower shall agree upon the
interest rate applicable to such Swingline Loan, provided that if
such agreement cannot be reached prior to 2:00 p.m., Local Time, on
the day of such proposed Swingline Loan then such Swingline Loan
shall bear interest at the Overnight LIBOR Rate plus the Applicable
Rate. Any funding of a Swingline Loan by the Swingline Lender shall
be made in accordance with Section 2.02(a) on the proposed date
thereof by wire transfer of immediately available funds by 3:00
p.m., Local Time, to the account of the Applicable Agent most
recently designated by it for such purpose by notice to the
Swingline Lender. The Applicable Agent will make such Swingline
Loan available to the U.S. Borrower by promptly crediting the
amounts so received, in like funds, to the general deposit account
of the U.S. Borrower with the Applicable Agent (or, in the case of
a Swingline Borrowing made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the
applicable Issuing Bank).
(c)
The Swingline Lender may by written notice given to the Applicable
Agent not later than 1:00 p.m., Local Time, on any Business Day
require the Lenders to acquire participations on such Business Day
in all or a portion of the outstanding Swingline Loans. Such notice
shall specify the aggregate amount of such Swingline Loans in which
the Lenders will participate. Promptly upon receipt of such notice,
the Applicable Agent will give notice thereof to each Lender,
specifying in such notice
27
such Lender’s Applicable
Adjusted Percentage of such Swingline Loan or Loans. Each Lender
hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Applicable Agent, for the
account of the Swingline Lender, such Lender’s Applicable
Adjusted Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its respective obligation to acquire
participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance
of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07
with respect to Loans made by such Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Applicable Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders.
The Applicable Agent shall notify the U.S. Borrower of any
participations in any Swingline Loan acquired pursuant to this
paragraph (c), and thereafter payments in respect of such Swingline
Loan shall be made to the Applicable Agent and not to the Swingline
Lender. Any amounts received by the Swingline Lender from the U.S.
Borrower (or other party on behalf of such Borrower) in respect of
a Swingline Loan after receipt by such Swingline Lender of the
proceeds of a sale of participations therein shall be promptly
remitted to the Applicable Agent; any such amounts received by the
Applicable Agent shall be promptly remitted by the Applicable Agent
to the Lenders that shall have made their payments pursuant to this
paragraph and to such Swingline Lender, as their interests may
appear; provided that any such payment so remitted shall be repaid
to such Swingline Lender or to the Applicable Agent, as applicable,
if and to the extent such payment is required to be refunded to the
U.S. Borrower for any reason. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the
U.S. Borrower of any default in the payment thereof.
SECTION
2.06. Letters of Credit . (a) General . Subject to
the terms and conditions set forth herein, the U.S. Borrower may
request the issuance of Letters of Credit denominated in Dollars
for its own account or the account of a Domestic Subsidiary, in a
form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement
submitted by the U.S. Borrower to, or entered into by the U.S.
Borrower with, the Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall
control.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions . To request the issuance of a Letter of Credit (or
the amendment, renewal or extension of an outstanding Letter of
Credit), the U.S. Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date
of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the
account party thereof (which shall be the U.S. Borrower or a
Domestic Subsidiary, and if a Domestic Subsidiary then the U.S.
Borrower and such Domestic Subsidiary shall be jointly and
severally liable with respect to all Obligations relating to such
Letter of Credit), the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. If requested by the Issuing
Bank, the U.S. Borrower also shall submit a letter of credit
application on the Issuing Bank’s standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall
be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the U.S.
Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not
28
exceed $30,000,000, (ii) the
(A) Aggregate Revolving Credit Exposure plus the Aggregate
Competitive Loans shall not exceed (B) the Aggregate Commitments
minus the Aggregate Ancillary Commitments and (iii) the sum of the
Aggregate Total Exposure shall not exceed the Aggregate
Commitments.
(c)
Expiration Date . Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit
(provided that any Letter of Credit may provide for additional one
year renewals thereof subject to the approval of the Administrative
Agent prior to the time of such renewal) and (ii) the date
that is ten Business Days prior to the Maturity Date.
(d)
Participations . By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the Issuing Bank or
the Lenders, the Issuing Bank hereby grants to each Lender, and
each Lender hereby acquires from the Issuing Bank, a participation
in such Letter of Credit equal to such Lender’s Applicable
Adjusted Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the
Issuing Bank, such Lender’s Applicable Adjusted Percentage of
each LC Disbursement made by the Issuing Bank and not reimbursed by
the U.S. Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be
refunded to the U.S. Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e)
Reimbursement . If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the U.S. Borrower
shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not
later than 12:00 noon, Local Time, on the date that such LC
Disbursement is made, if the U.S. Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Local Time, on
such date, or, if such notice has not been received by the U.S.
Borrower prior to such time on such date, then not later than 12:00
noon, Local Time, on (i) the Business Day that the U.S.
Borrower receives such notice, if such notice is received prior to
10:00 a.m., Local Time, on the day of receipt, or (ii) the
Business Day immediately following the day that the U.S. Borrower
receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that the U.S. Borrower may,
subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 or 2.05 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the U.S. Borrower’s
obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the
U.S. Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the U.S. Borrower in
respect thereof and such Lender’s Applicable Adjusted
Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable
Adjusted Percentage of the payment then due from the U.S. Borrower,
in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply,
mutatis mutandis , to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any
payment from the U.S. Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to
this
29
paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not
relieve the U.S. Borrower of its obligation to reimburse such LC
Disbursement.
(f)
Obligations Absolute . The U.S. Borrower’s obligation
to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the U.S. Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank,
nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the U.S. Borrower to the
extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the U.S. Borrower
to the extent permitted by applicable law) suffered by the U.S.
Borrower that are caused by the Issuing Bank’s failure to
exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank
(as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse
to accept and make payment upon such documents if such documents
are not in strict compliance with the terms of such Letter of
Credit.
(g)
Disbursement Procedures . The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The
Issuing Bank shall promptly notify the Administrative Agent and the
U.S. Borrower by telephone (confirmed by telecopy) of such demand
for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the U.S.
Borrower of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h)
Interim Interest . If the Issuing Bank shall make any LC
Disbursement, then, unless the U.S. Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from
and including the date such LC Disbursement is made to but
excluding the date that the U.S. Borrower reimburses such LC
Disbursement,
