CREDIT
AGREEMENT
dated
as of
March
31, 2008
among
GRITEL
HOLDING CO., INC.,
as
Holdings,
TELEPHONICS
CORPORATION,
as
the Borrower,
The
LENDERS Party Hereto
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
____________
$100,000,000
____________
J.P.
MORGAN SECURITIES INC.,
as
Sole Lead Arranger and Sole Bookrunner
TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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1
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SECTION
1.01
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Defined
Terms
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1
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SECTION
1.02
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Terms
Generally
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22
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SECTION
1.03
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Accounting
Terms; GAAP
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22
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SECTION
1.04
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Currencies;
Currency Equivalents; Euro
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23
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ARTICLE
II THE CREDITS
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24
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SECTION
2.01
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The
Commitments
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24
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SECTION
2.02
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Loans
and Borrowings
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24
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SECTION
2.03
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Requests
for Borrowings
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24
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SECTION
2.04
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Letters
of Credit
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26
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SECTION
2.05
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Funding
of Borrowings
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30
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SECTION
2.06
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Interest
Elections
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30
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SECTION
2.07
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Swingline
Commitment
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32
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SECTION
2.08
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Procedure
and Refunding of Swingline Loans
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32
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SECTION
2.09
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Termination,
Reduction and Increase of the Commitments
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34
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SECTION
2.10
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Repayment
of Loans; Evidence of Debt
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35
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SECTION
2.11
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Prepayment
of Loans
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36
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SECTION
2.12
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Fees
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38
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SECTION
2.13
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Interest
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39
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SECTION
2.14
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Alternate
Rate of Interest
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39
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SECTION
2.15
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Increased
Costs
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40
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SECTION
2.16
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Break
Funding Payments
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41
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SECTION
2.17
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Taxes
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42
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SECTION
2.18
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Payments
Generally; Pro Rata Treatment; Sharing of
Set-offs
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44
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SECTION
2.19
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Mitigation
Obligations; Replacement of Lenders
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46
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ARTICLE
III GUARANTEE
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47
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SECTION
3.01
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The
Guarantee
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47
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SECTION
3.02
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Obligations
Unconditional
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47
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SECTION
3.03
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Reinstatement
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48
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SECTION
3.04
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Subrogation
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48
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SECTION
3.05
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Remedies
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48
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SECTION
3.06
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Continuing
Guarantee
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49
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SECTION
3.07
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General
Limitation on Guarantee Obligations
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49
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ARTICLE
IV REPRESENTATIONS AND WARRANTIES
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49
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SECTION
4.01
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Organization;
Powers
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49
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SECTION
4.02
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Authorization;
Enforceability
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49
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SECTION
4.03
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Governmental
Approvals; No Conflicts
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49
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SECTION
4.04
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Financial
Condition; No Material Adverse Change
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50
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SECTION
4.05
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Properties
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50
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SECTION
4.06
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Litigation
and Environmental Matters
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50
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SECTION
4.07
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Compliance
with Laws and Contractual Obligations
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51
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SECTION
4.08
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Investment
Company Status
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51
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SECTION
4.09
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Taxes
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51
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SECTION
4.10
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ERISA;
Employee Benefit Plans
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51
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SECTION
4.11
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Disclosure
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52
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SECTION
4.12
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Use
of Credit
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52
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SECTION
4.13
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Burdensome
Agreements
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52
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SECTION
4.14
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Labor
Matters
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52
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SECTION
4.15
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Security
Documents
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52
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SECTION
4.16
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Holdings
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53
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SECTION
4.17
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Parent
Real Estate Assets
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53
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ARTICLE
V CONDITIONS
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53
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SECTION
5.01
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Effective
Date
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53
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SECTION
5.02
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Each
Credit Event
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53
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ARTICLE
VI AFFIRMATIVE COVENANTS
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55
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SECTION
6.01
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Financial
Statements and Other Information
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55
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SECTION
6.02
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Notices
of Material Events
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57
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SECTION
6.03
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Existence;
Conduct of Business
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58
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SECTION
6.04
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Payment
of Obligations
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58
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SECTION
6.05
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Maintenance
of Properties
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58
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SECTION
6.06
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Maintenance
of Insurance
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58
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SECTION
6.07
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Books
and Records
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58
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SECTION
6.08
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Inspection
Rights
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58
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SECTION
6.09
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Compliance
with Laws and Contractual Obligations
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59
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SECTION
6.10
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Use
of Proceeds and Letters of Credit
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59
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SECTION
6.11
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Collateral;
Further Assurances
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59
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ARTICLE
VII NEGATIVE COVENANTS
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61
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SECTION
7.01
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Indebtedness;
Guarantees
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61
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SECTION
7.02
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Liens
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63
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SECTION
7.03
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Mergers,
Consolidations, Etc
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64
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SECTION
7.04
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Dispositions
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64
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SECTION
7.05
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Lines
of Business
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65
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SECTION
7.06
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Investments
and Acquisitions
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66
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SECTION
7.07
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Restricted
Payments
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67
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SECTION
7.08
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Transactions
with Affiliates
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68
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SECTION
7.09
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Restrictive
Agreements
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68
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SECTION
7.10
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Swap
Agreements
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69
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SECTION
7.11
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Financial
Covenants
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69
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SECTION
7.12
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Stock
Issuance
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69
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SECTION
7.13
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Modifications
of Certain Documents
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70
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SECTION
7.14
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Passive
Holding Company Status
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70
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ARTICLE
VIII EVENTS OF DEFAULT
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70
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ARTICLE
IX THE ADMINISTRATIVE AGENT
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73
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ARTICLE
X MISCELLANEOUS
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75
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SECTION
10.01
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Notices
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75
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SECTION
10.02
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Waivers;
Amendments.
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75
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SECTION
10.03
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Expenses;
Indemnity; Damage Waiver
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77
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SECTION
10.04
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Successors
and Assigns
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78
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SECTION
10.05
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Survival
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81
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SECTION
10.06
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Counterparts;
Integration; Effectiveness
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81
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SECTION
10.07
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Severability
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82
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SECTION
10.08
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Right
of Setoff
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82
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SECTION
10.09
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Governing
Law; Jurisdiction; Consent to Service of Process
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82
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SECTION
10.10
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WAIVER
OF JURY TRIAL
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83
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SECTION
10.11
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Judgment
Currency
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83
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SECTION
10.12
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Headings
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84
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SECTION
10.13
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Confidentiality
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84
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SECTION
10.14
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USA
PATRIOT ACT
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84
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SECTION
10.15
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Releases
of Liens
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84
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SCHEDULE
1.01 - Commitments
SCHEDULE
1.01(a) - Additional Costs
SCHEDULE
4.06(a) - Litigation
SCHEDULE
4.06(b) - Environmental Matters
SCHEDULE
4.13 - Burdensome Agreements
SCHEDULE
4.14 - Labor Matters
SCHEDULE
4.15 - UCC Filing Jurisdictions
SCHEDULE
4.17 - Parent Real Estate Assets
SCHEDULE
7.01(a) - Existing Indebtedness
SCHEDULE
7.01(b) - Existing Guarantees
SCHEDULE
7.02 - Existing Liens
SCHEDULE
7.06 - Existing Investments
SCHEDULE
7.09 - Restrictive Agreements
SCHEDULE
10.01 - Addresses for Notice
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EXHIBIT
A
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-
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Form
of Assignment and Assumption
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EXHIBIT
B
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-
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Form
of Guarantee and Collateral Agreement
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EXHIBIT
C
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-
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Form
of Opinion of Corporate Counsel to the Borrower
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EXHIBIT
D
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-
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Form
of Opinion of Special Counsel to the Borrower
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CREDIT
AGREEMENT, dated as of March 31, 2008, among GRITEL HOLDING
CO., INC., a Delaware corporation (“
Holdings ”),
TELEPHONICS CORPORATION, a Delaware corporation (the “
Borrower ”),
the several banks and other financial institutions or entities from
time to time parties to this Agreement, and JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the “
Administrative Agent ”).
The
parties hereto hereby agree 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 denominated
in Dollars and bearing interest at a rate determined by reference
to the Alternate Base Rate.
“
Additional Cost ”
shall mean, in relation to any Borrowing that is denominated in
English Pounds Sterling, for any Interest Period, the cost as
calculated by the Administrative Agent in accordance with Schedule
1.01(a) imputed to each Lender participating in such Borrowing of
compliance with the mandatory liquid assets requirements of the
Bank of England or the European Central Bank, as applicable, during
that Interest Period, expressed as a percentage.
“
Adjusted LIBO Rate ”
means, for the Interest Period for any Eurocurrency Borrowing, 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 for such Interest Period,
provided ,
however, that, if such Eurocurrency Borrowing is denominated in
English Pounds Sterling, then the “Adjusted LIBO Rate”
shall be the LIBO Rate in effect for such Interest Period plus the
Additional Cost.
“
Adjusted Net Income ”
means, for any period, the aggregate income (or loss) for such
period of the Borrower and its Subsidiaries which shall be an
amount equal to net revenues and other proper items of
income,
plus all
extraordinary, non-recurring or unusual non-cash losses for such
period,
plus all
extraordinary, non-recurring or unusual cash losses for such period
not exceeding in the aggregate $2,500,000 for such period,
plus minority
interest in earnings of consolidated Subsidiaries for such period,
less any and all items that are treated as expenses under
GAAP,
less ,
without duplication, any cash payments made during such period in
respect of the non-cash losses referred to above subsequent to the
fiscal quarter in which the relevant non-cash losses were reflected
as a charge,
less Federal,
state and local income taxes and income taxes expensed for taxes
payable to jurisdictions outside of the United States of
America,
less minority
interests in losses of consolidated Subsidiaries for such
period,
less all
extraordinary, non-recurring and unusual non-cash gains for such
period, as determined in accordance with GAAP.
“
Administrative Agent ”
has the meaning set forth in the preamble hereto. It is understand
that, without limiting the other provisions of this Agreement, the
Administrative Agent may utilize the services of its Affiliates
(including J.P. Morgan Europe Limited) in connection with
administrative matters related to Foreign Currencies.
“
Administrative Agent’s Account ”
means, for each Currency, an account in respect of such Currency
designated by the Administrative Agent in a notice to the Borrower
and the Lenders.
“
Administrative Questionnaire ”
means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“
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.
“
Aggregate Available Commitments ”
means, at any time, the aggregate amount of Available Commitments
of all the Lenders at such time.
“
Aggregate Commitment ”
means, at any time, the aggregate amount of the Commitments of all
the Lenders at such time, as such amount is subject to reduction or
increase in accordance with the terms hereof. The initial amount of
the Aggregate Commitment is $100,000,000.
“
Aggregate Foreign Currency Sublimit Dollar Amount
”
means $25,000,000.
“
Aggregate 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 Borrower at such
time.
“
Aggregate Letter of Credit Sublimit Amount ”
means $25,000,000.
“
Aggregate Revolving Credit Exposure ”
means, at any time, the sum of (a) the aggregate outstanding
principal amount of the Loans of all the Lenders at such
time,
plus (b) the
aggregate amount of LC Exposures of all the Lenders at such
time.
“
Agreed Foreign Currency ”
means, at any time, any of English Pounds Sterling, euro and, with
the agreement of each Lender, any other Foreign Currency, so long
as, in respect of any such specified Currency or other Foreign
Currency, at such time (a) such Currency is dealt with in the
London interbank deposit market, (b) such Currency is freely
transferable and convertible into Dollars in the London foreign
exchange market and (c) no central bank or other governmental
authorization in the country of issue of such Currency (including,
in the case of the euro, any authorization by the European Central
Bank) is required to permit use of such Currency by any Lender for
making any Loan hereunder and/or to permit the Borrower to borrow
and repay the principal thereof and to pay the interest thereon,
unless such authorization has been obtained and is in full force
and effect.
“
Agreement ”
means this Credit Agreement.
“
Alternate Base Rate ”
means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day
plus 0.50%.
Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from
and including the effective date of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.
“
Applicable Percentage ”
means, with respect to any Lender, the percentage of the Aggregate
Commitment 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 or
Eurocurrency Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set
forth below under the caption “ABR Spread”,
“Eurocurrency Spread” or “Commitment Fee
Rate”, respectively, based upon the Leverage Ratio as of the
most recent determination date:
|
Leverage Ratio:
|
ABR
Spread
|
Eurocurrency
Spread
|
Commitment
Fee Rate
|
|
Category 1
Greater
than or equal to 2.00:1.00
|
1.00%
|
2.00%
|
0.35%
|
|
Category 2
Greater
than or equal to 1.00:1.00 but less than
2.00:1.00
|
0.75%
|
1.75%
|
0.30%
|
|
Category 3
Less
than 1.00:1.00
|
0.50%
|
1.50%
|
0.25%
|
For
purposes of the foregoing, (i) the Leverage Ratio shall
be determined as of the end of each fiscal quarter of each
fiscal year of the Borrower based upon the Borrower’s
consolidated financial statements delivered pursuant to
Section 6.01(a) or (b), as applicable, (ii) until
the delivery of the financial statements for the first fiscal
quarter commencing on or after the Effective Date pursuant to
Section 6.01 (a) or (b), as applicable, the ABR Spread shall
be 0.75%, the Eurocurrency Spread shall be 1.75% and the
Commitment Fee Rate shall be 0.30%, and (iii) each change
in the Applicable Rate resulting from a change in the Leverage
Ratio shall be effective during the period commencing on and
including the date three Business Days after delivery to the
Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately
preceding the effective date of the next such change;
provided that
the Leverage Ratio shall be deemed to be in Category 1 (A) at
any time that an Event of Default has occurred and is continuing or
(B) if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to
Section 6.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
“
Approved Fund ”
means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
“
Arranger ”
means J.P. Morgan Securities Inc., in its capacity as the Sole Lead
Arranger and Sole Bookrunner in respect of the arrangement of the
Commitments.
“
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 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the
Administrative Agent.
“
Assuming Lender ”
has the meaning set forth in Section 2.09(c).
“
Availability Period ”
means the period from and including the Effective Date to but
excluding the earlier of the Commitment Termination Date and the
date of termination of the Commitments.
“
Available Commitment ”
means, as to any Lender at any time, an amount equal to the excess,
if any, of (a) such Lender’s Commitment then in effect over
(b) such Lender’s Revolving Credit Exposure then
outstanding;
provided that
in calculating any Lender’s Revolving Credit Exposure for the
purpose of determining such Lender’s Available Commitment
pursuant to Section 2.12(a), the aggregate principal amount of
Swingline Loans then outstanding shall be deemed to be
zero.
“
Board ”
means the Board of Governors of the Federal Reserve System of the
United States of America.
“
Borrower ”
has the meaning set forth in the preamble hereto.
“
Borrower Obligations ”
has the meaning assigned to such term in the Guarantee and
Collateral Agreement.
“
Borrowing ”
means (a) all ABR Loans made, converted or continued on
the same date or (b) all Eurocurrency Loans denominated in the
same Currency that have the same Interest Period.
“
Borrowing Request ”
means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“
Business Day ”
means any day (a) that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or
required by law to remain closed, (b) if such day relates to a
borrowing of, a payment or prepayment of principal of or interest
on, a continuation or conversion of or into, or the Interest Period
for, a Eurocurrency Borrowing, or to a notice by the Borrower with
respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which
dealings in deposits denominated in the Currency of such Borrowing
are carried out in the London interbank market, (c) if such
day relates to a borrowing or continuation of, a payment or
prepayment of principal of or interest on, or the Interest Period
for, any Borrowing denominated in any Foreign Currency (other than
euro), or to a notice by the Borrower with respect to any such
borrowing, continuation, payment, prepayment or Interest Period,
that is also a day on which commercial banks and the London foreign
exchange market settle payments in the Principal Financial Center
for such Foreign Currency and (d) if such day relates to a
borrowing or continuation of, a payment or prepayment of principal
of or interest on, or the Interest Period for, any Borrowing
denominated in euro (or any notice with respect thereto), that is
also a TARGET Day.
“
Capital Expenditures ”
means, for any period, expenditures (including the aggregate amount
of Capital Lease Obligations incurred during such period) made by
the Borrower or any of its Subsidiaries to acquire or construct
fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period
computed in accordance with GAAP.
“
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.
“
Capital Stock ”
means (a) in the case of a corporation, capital stock,
(b) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, (c) in the case of a
limited liability company, membership units (whether common or
preferred), (d) in the case of a partnership, partnership
interests (whether general or limited) and (e) any other
equivalent ownership interest or participation that confers on a
Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
“
Change of Control ”
means (a) (i) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group
(within the meaning of the Exchange Act and the rules of the SEC
thereunder as in effect on the date hereof), of shares representing
more than 30% (the percentage so acquired, the “
third-party percentage ”)
of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the Control Person and (ii) if a
Permitted Change of Control Transaction has occurred prior to such
time, the Parent, directly or indirectly, does not own more than
the third-party percentage of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the
Control Person, (b) during any period of 25 consecutive
calendar months, the ceasing of those individuals (the
“
Continuing Directors ”)
who (i) were directors of the Control Person on the first day of
each such period, or (ii) subsequently became directors of the
Control Person and whose initial election or initial nomination for
election subsequent to that date was approved by a majority of the
Continuing Directors then on the board of directors of the Control
Person, to constitute a majority of the board of directors of the
Control Person, or (c) (i) prior to the occurrence of a Permitted
Change of Control Transaction, the Parent ceasing to own,
beneficially and of records, all of the outstanding Capital Stock
of Holdings or (ii) prior to the occurrence of a Holdings Change of
Control Transaction, Holdings ceasing to own, beneficially and of
record, all of the outstanding Capital Stock of the Borrower (other
than, in each case, in connection with a Permitted Change of
Control Transaction).
“
Change in Law ”
means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or
(c) compliance by any Lender or the Issuing Lender (or, for
purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender’s or the Issuing Lender’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 date of this
Agreement.
“
Code ”
means the Internal Revenue Code of 1986, as amended from time to
time.
“
Collateral ”
means all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any
Security Document.
“
Collateral Account ”
has the meaning assigned to such term in the Guarantee and
Collateral Agreement.
“
Commitment ”
means, with respect to each Lender at any time, the commitment of
such Lender to make Loans and to participate in Swingline Loans and
Letters of Credit, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced or increased
from time to time pursuant to Section 2.09 and
(b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04.
The initial amount of each Lender’s Commitment is set forth
on Schedule 1.01, or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Commitment, as
applicable.
“
Commitment Increase ”
has the meaning set forth in Section 2.09(c).
“
Commitment Increase Date ”
has the meaning set forth in Section 2.09(c).
“
Commitment Termination Date ”
means March 31, 2013 (or if such date is not a Business Day, the
immediately preceding Business Day).
“
Consolidated EBITDA ”
means, for any period, the sum of (i) Adjusted Net Income, (ii)
Consolidated Interest Expense, (iii) depreciation and amortization
expense deducted in determining Adjusted Net Income, (iv) foreign,
Federal, state and local income taxes deducted in determining
Adjusted Net Income, in each case, for such period, computed in
accordance with GAAP, and (v) to the extent deducted in determining
Adjusted Net Income, transaction costs, fees and expenses relating
to the execution and delivery of this Agreement.
“
Consolidated Fixed Charge Coverage Ratio ”
means, for any period, the ratio of (a) Consolidated EBITDA for
such period,
minus the
aggregate amount actually paid by the Borrower and its Subsidiaries
during such period on account of Capital Expenditures (excluding
Capital Expenditures financed with Indebtedness other than any
Loans but including repayments of any such Indebtedness) to (b)
Consolidated Interest Expense for such period.
“
Consolidated Funded Debt ”
means, at any date, the aggregate principal amount of all
Indebtedness for borrowed money of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
“
Consolidated Interest Expense ”
means, for any period, total cash interest expense (including that
attributable to Capital Lease Obligations) of the Borrower and its
Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries (including all
commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers’ acceptance financing and
net costs under Swap Agreements in respect of interest rates to the
extent such net costs are allocable to such period in accordance
with GAAP).
“
Consolidated Leverage Ratio ”
means, as at the last day of any period, the ratio of (a)
Consolidated Funded Debt on such day to (b) Consolidated EBITDA for
such period.
“
Consolidated Net Income ”
means, for any period, the consolidated net income (or loss) of the
Borrower and its Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
“
Consolidated Net Worth ”
means, at any date, all amounts that would, in conformity with
GAAP, be included on a consolidated balance sheet of the Borrower
and its Subsidiaries under stockholders’ equity at such
date.
“
Consolidated Pre-tax Income ”
means, for any period, Consolidated Net Income for such
period
plus foreign,
Federal, state and local income taxes deducted in determining
Consolidated Net Income for such period.
“
Contractual Obligation ”
means, as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property
is bound.
“
Control ”
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by
contract or otherwise. “
Controlling ”
and “
Controlled ”
have meanings correlative thereto.
“
Control Person ”
means, prior to a Permitted Change of Control Transaction, the
Parent, and, thereafter, the Borrower (or Holdings, if such
Permitted Change of Control Transaction is a Parent Change of
Control Transaction and a Holdings Change of Control Transaction
has not occurred).
“
Currency ”
means Dollars or any Foreign Currency.
“
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.
“
Disclosed Matters ”
means the actions, suits and proceedings disclosed in
Schedule 4.06(a) and the environmental matters disclosed in
Schedule 4.06(b).
“
Dollar Equivalent ”
means, with respect to any Borrowing denominated in any Foreign
Currency, the amount of Dollars that would be required to purchase
the amount of the Foreign Currency of such Borrowing on the date
two Business Days prior to the date of such Borrowing (or, in the
case of any determination made under Section 2.11(b) or
redenomination under the last sentence of Section 2.18(a), on
the date of determination or redenomination therein referred to),
based upon the spot selling rate at which the Administrative Agent
offers to sell such Foreign Currency for Dollars in the London
foreign exchange market at approximately 11:00 a.m., London
time, for delivery two Business Days later.
“
Dollars ”
or “
$ ”
refers to lawful money of the United States of
America.
“
Domestic Subsidiary ”
means any Subsidiary of the Borrower organized under the laws of
any jurisdiction within the United States of America.
“
Effective Date ”
means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with
Section 10.02).
“
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 any Group Member directly or
indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the
foregoing.
“
ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
“
ERISA Affiliate ”
means any trade or business (whether or not incorporated) that,
together with any Group Member, 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(m) of the Code.
“
ERISA Event ”
means (a) any Reportable Event; (b) the existence with respect to
any Plan of a Prohibited Transaction; (c) any failure by any Plan
to satisfy the minimum funding standards (within the meaning of
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412 of the Code or
Section 303 of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, the failure to make by
its due date a required installment under Section 414(m) of the
Code with respect to any Plan or the failure by any Group Member or
any of its ERISA Affiliates to make any required contribution to a
Multiemployer Plan; (e) the incurrence by any Group Member or any
of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan, including but not
limited to the imposition of any Lien in favor of the PBGC or any
Plan; (f) a determination that any Plan is, or is expected to be,
in “at risk” status (within the meaning of Title IV of
ERISA); (g) the receipt by any Group Member or any of its ERISA
Affiliates 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 under Section 4042 of
ERISA; (h) the incurrence by any Group Member or any of its ERISA
Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (i) the
receipt by any Group Member or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from a Group Member 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, in reorganization or in
endangered or critical status, or in reorganization within the
meaning of Section 432 of the Code or Section 305 or Title IV of
ERISA.
“
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.
“
euro ”
means the single currency of Participating Member States of the
European Union, which shall be an Agreed Foreign Currency and a
Foreign Currency under this Agreement.
“
Event of Default ”
has the meaning set forth in Article VIII.
“
Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“
Excluded Foreign Subsidiary ”
means any Foreign Subsidiary in respect of which either (a) the
pledge of more than 66% of the Capital Stock of such Subsidiary as
collateral or (b) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Borrower.
“
Excluded Taxes ”
means, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its
net income or any similar tax imposed in lieu of net income taxes,
by the United States of America or by the 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 on any Lender by the United States of America or any
similar tax imposed by any jurisdiction referred to in clause (a),
and (c) in the case of a Non-U.S. Lender (other than an
assignee pursuant to a request by the Borrower under
Section 2.19(b)), any United States withholding tax that is
imposed on amounts payable to such Non-U.S. Lender at the time such
Non-U.S. Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Non-U.S.
Lender’s failure to comply with Section 2.17(e), except
to the extent that such Non-U.S. 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 Borrower with
respect to such withholding tax pursuant to
Section 2.17(a).
“
Existing Credit Agreement ”
means the Amended and Restated Credit Agreement, dated as of
December 20, 2006, among Griffon Corporation, as a borrower,
Telephonics Corporation, as a borrower, the lenders party thereto
from time to time, and JPMCB, as administrative agent.
“
Existing Letters of Credit ”
has the meaning set forth in Section 2.04(a).
“
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 Borrower.
“
Foreign Currency ”
means at any time any Currency other than Dollars.
“
Foreign Currency Equivalent ”
means, with respect to any amount in Dollars, the amount of any
Foreign Currency that could be purchased with such amount of
Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term “Dollar
Equivalent”, as determined by the Administrative
Agent.
“
Foreign Plan ”
means each employee benefit plan (within the meaning of Section
3(3) of ERISA, whether or not subject to ERISA) that is not subject
to US law and is maintained or contributed to by any Group Member
or any ERISA Affiliate.
“
Foreign Subsidiary ”
means any Subsidiary of the Borrower that is not a Domestic
Subsidiary.
“
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.
“
Group Members ”
means the collective reference to Holdings, the Borrower and their
respective Subsidiaries,
provided that,
upon the consummation of a Holdings Change of Control Transaction,
Holdings shall cease to be a “Group Member” and shall
cease to be bound by the provisions of the Loan
Documents.
“
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.
“
Guarantee and
Collateral Agreement ”
means the Guarantee and Collateral Agreement to be made by the Loan
Parties in favor of Administrative Agent, substantially in the form
of Exhibit B, as the same shall be modified and supplemented
and in effect from time to time.
“
Guaranteed Obligations ”
has the meaning set forth in Section 3.01.
“
Guarantors ”
means the collective reference to Holdings and the Subsidiary
Guarantors;
provided that,
notwithstanding anything contained in this Agreement to the
contrary, upon the consummation of a Holdings Change of Control
Transaction, Holdings shall cease to be a Guarantor and shall
automatically be released from its obligations as a Guarantor under
the Loan Documents.
“
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.
“
Holdings ”
has the meaning set forth in the preamble hereto.
“
Holdings Change of Control Transaction ”
means a “spin-off’ transaction or sale to third parties
in which the Borrower ceases to be a wholly-owned Subsidiary of
Holdings.
“
Immaterial Subsidiary ”
means, as of any date, any Subsidiary with total assets of less
than 5% of consolidated assets, and total revenues of less than 5%
of annual consolidated revenues, of the Borrower and its
Subsidiaries, collectively, as reflected on the most recent
financial statements delivered pursuant to Section 6.01 prior to
such date,
provided that
the aggregate assets or annual revenues of all Immaterial
Subsidiaries (as reflected on the most recent financial statements
delivered pursuant to Section 6.01 prior to such date) may not
exceed 10% of consolidated assets or annual consolidated revenues,
respectively, of the Borrower and its Subsidiaries, collectively,
at any time (and the Borrower will designate in writing to the
Administrative Agent from time to time the Subsidiaries which will
cease to be treated as “Immaterial Subsidiaries” in
order to comply with the foregoing limitation).
“
Increasing Lender ”
has the meaning set forth in Section 2.09(c).
“
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 under conditional sale or
other title retention agreements relating to property acquired by
such Person, (d) 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), (e) 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, (f) all Guarantees by such
Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters
of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of
bankers’ acceptances. 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.
“
Indemnified Taxes ”
means Taxes other than Excluded Taxes.
“
Insolvent ”
with respect to any Multiemployer Plan, means insolvent within the
meaning of Section 4245 of ERISA.
“
Interest Election Request ”
means a request by a Borrower to convert or continue a Borrowing in
accordance with Section 2.06.
“
Interest Payment Date ”
means (a) with respect to any ABR Loan (other than any
Swingline Loan), each Quarterly Date, (b) with respect to any
Eurocurrency Loan, the last day of each Interest Period therefor
and, in the case of any Interest Period of more than three
months’ duration, each day prior to the last day of such
Interest Period that occurs at three-month intervals after the
first day of such Interest Period, and (c) with respect to any
Swingline Loan, the day that such Loan is required to be
repaid.
“
Interest Period ”
means, for any Eurocurrency Loan or Borrowing, the period
commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one,
two, three or six months (or, if available to all Lenders, nine or
twelve months) thereafter or, with respect to such portion of any
Eurocurrency Loan or Borrowing denominated in a Foreign Currency
that is scheduled to be repaid on the Commitment Termination Date,
a period of less than one month’s duration commencing on the
date of such Loan or Borrowing and ending on the Commitment
Termination Date, as specified in the applicable Borrowing Request
or Interest Election 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 such next succeeding Business Day
would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, and
(ii) any Interest Period (other than an Interest Period
pertaining to a Eurocurrency Borrowing denominated in a Foreign
Currency that ends on the Commitment Termination Date that is
permitted to be of less than one month’s duration as provided
in this definition) 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
Loan initially shall be the date on which such Loan is made and
thereafter shall be the effective date of the most recent
conversion or continuation of such Loan, and the date of a
Borrowing comprising Loans that have been converted or continued
shall be the effective date of the most recent conversion or
continuation of such Loans.
“
Investment ”
means, by any Person, (a) the amount paid or committed to be paid,
or the value of property or services contributed or committed to be
contributed, by such person for or in connection with the
acquisition by such Person of any stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of any
other Person and (b) the amount of any advance, loan or extension
of credit by such Person, to any other Person, or guaranty or other
similar obligation of such Person with respect to any Indebtedness
of such other Person (other than Indebtedness constituting trade
payables in the ordinary course of business), and (without
duplication) any amount committed to be advanced, loans, or
extended by such Person to any other Person, or any amount the
payment of which is committed to be assured by a guaranty or
similar obligation by such Person for the benefit of, such other
Person.
“
Issuing Lender ”
means JPMCB, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in
Section 2.04(j). The Issuing Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Lender, in which case the term
“Issuing Lender” shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
“
JPMCB ”
means JPMorgan Chase Bank, N.A.
“
LC Disbursement ”
means a payment made by the Issuing Lender pursuant to a Letter of
Credit.
“
LC Exposure ”
means, with respect to each Lender at any time, such Lender’s
Applicable Percentage of the Aggregate LC Exposure at such
time.
“
Lenders ”
means the Persons listed on Schedule 1.01 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 or an instrument
entered into pursuant to Section 2.09(c).
“
Letter of Credit ”
means any standby letter of credit issued pursuant to this
Agreement.
“
Letter of Credit Documents ”
means, with respect to any Letter of Credit, collectively, any
application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing
for (a) the rights and obligations of the parties concerned or
at risk with respect to such Letter of Credit or (b) any
collateral security for any of such obligations, each as the same
may be modified and supplemented and in effect from time to
time.
“
LIBO Rate ”
means, (a) for the Interest Period for any Eurocurrency Borrowing
denominated in any Currency other than euro, the rate appearing on
the Screen at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period
(or, in the case of any Eurocurrency Borrowing denominated in
English Pounds Sterling, on the first day of such Interest Period),
as LIBOR for deposits denominated in such Currency with a maturity
comparable to such Interest Period and (b) for the Interest Period
for any Eurocurrency Borrowing denominated in euro, the rate
appearing on the Reuters Screen EURIBOR01 Page (it being understood
that this rate is the Euro interbank offered rate (known as the
“EURIBOR Rate”) sponsored by the Banking Federation of
the European Union (known as the “FBE”) and the
Financial Markets Association (known as the “ACI”)) at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for deposits
in euro with a maturity comparable to such Interest Period. In the
event that such rate is not available on the Screen at such time
for any reason, then, unless the last sentence of
Section 10.11 is applicable, the LIBO Rate for such Interest
Period shall be the rate at which deposits in such Currency in the
amount of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period.
“
LIBOR ”
means, for any Currency, the rate at which deposits denominated in
such Currency are offered to leading banks in the London interbank
market.
“
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, collectively, this Agreement, the Letter of Credit Documents
and the Security Documents.
“
Loan Party ”
means the Borrower and any Guarantor.
“
Loans ”
means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
“
Local Time ”
means, with respect to any Loan denominated in or any payment to be
made in any Currency, the local time in the Principal Financial
Center for the Currency in which such Loan is denominated or such
payment is to be made.
“
Management Agreement ”
means that certain Management Agreement, dated as of September 30,
1977, between the Parent, as successor of Instrument System
Corporation, and the Borrower.
“
Margin Stock ”
means “margin stock” within the meaning of Regulations
T, U and X of the Board.
“
Material Adverse Effect ”
means a material adverse effect on (a) the business, assets,
property, operation or condition (financial or otherwise) of the
Group Members, taken as a whole, (b) validity or
enforceability of the material provisions of any of the Loan
Documents or (c) the material rights or remedies of the
Administrative Agent and the Lenders hereunder or under any of the
other Loan Documents.
“
Material Indebtedness ”
means Indebtedness (other than the Loans and Letters of Credit), or
obligations in respect of one or more Swap Agreements, of Parent or
any one or more Group Members in an aggregate principal amount
exceeding $7,500,000. For purposes of determining Material
Indebtedness, the “
principal amount ”
of the obligations of any Person in respect of any Swap Agreement
at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Person would be required to pay
if such Swap Agreement were terminated at such time.
“
Multiemployer Plan ”
means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“
Non-U.S. Lender ”
means any Lender that is organized under the laws of a jurisdiction
other than the United States of America, any State thereof or the
District of Columbia.
“
Obligations ”
has the meaning assigned to such term in the Guarantee and
Collateral Agreement.
“
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 under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect
to, any Loan Document.
“
Parent ”
means Griffon Corporation, a Delaware corporation.
“
Parent Change of Control Transaction ”
means a “spin-off” transaction or sale to third parties
in which Holdings ceases to be a wholly-owned Subsidiary of the
Parent.
“
Parent Letters of Credit ”
means outstanding letters of credit issued by JPMCB issued for the
account of the Parent under the Existing Credit Agreement in an
aggregate amount not to exceed $13,000,000.
“
Parent Real Estate Assets ”
means the real property assets owned by the Parent Real Estate
Subsidiaries as of the Effective Date.
“
Parent Real Estate Subsidiaries ”
means the collective reference to ISC Farmingdale, Inc. and ISC
Park Avenue, Inc.
“
Participant ”
has the meaning set forth in Section 10.04(c).
“
Participating Member State ”
means any member state of the European Community that adopts or has
adopted the euro as its lawful currency in accordance with the
legislation of the European Union relating to the European Monetary
Union.
“
PBGC ”
means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar
functions.
“
Permitted Acquisition ”
means the acquisition by the Borrower or any Subsidiary Guarantor
of any Person or of any division or line of business of any Person
(whether a Person, or division or line of business, an
“
Eligible Business ”),
either by merger, consolidation, purchase of stock, or purchase of
all or a substantial part of the assets of such Eligible Business
(any such type of transaction is referred to in this Agreement as
an “
acquisition ”
and the principal agreement relating thereto, whether a stock
purchase agreement, an asset purchase agreement, a merger agreement
or otherwise, is referred to in this Agreement as the
“
acquisition agreement ”);
provided that
(a) in the case of any acquisition by any of the Borrower’s
wholly-owned Subsidiary Guarantors, such Subsidiary Guarantor
remains a wholly-owned Subsidiary Guarantor of the Borrower, (b)
with respect to acquisitions of Foreign Subsidiaries and/or assets
located outside the United States of America, the aggregate
consideration paid in connection therewith shall not exceed
$5,000,000 in any fiscal year, (c) the Borrower or such Subsidiary
Guarantor, as applicable, shall have complied with all of the
requirements of Section 6.11 with respect thereto, (d) after giving
effect to such acquisition on a pro forma basis, the Consolidated
Leverage Ratio for the period of the four consecutive fiscal
quarters of the Borrower most recently ended prior to such
acquisition for which financial statements have been delivered
shall not exceed, with respect to any period ending on or before
March 31, 2012, 2.50 to 1.0, or with respect to any period ending
after March 31, 2012, but ending on or before the Commitment
Termination Date, 2.25 to 1.0, (e) no Default shall have occurred
and be continuing immediately before and after giving affect to
such Permitted Acquisition or result from the consummation thereof,
and (f) each of the following conditions shall have been satisfied
(and the Borrower shall have delivered to the Administrative Agent
a certificate to the effect that the conditions under paragraph (a)
to (e) above and this paragraph (f) have been
satisfied):
(i)
such transaction shall not be a “hostile” acquisition
or other “hostile” transaction (i.e., such transaction
shall not be opposed by the board of directors (or similar
governing body) of the Eligible Business),
provided that
(i) in the event the Borrower or such Subsidiary Guarantor, as
applicable, proposes to initiate such transaction as hostile
transaction with the intent to subsequently obtain the approval of
the board of directors of the Eligible Business, the Borrower or
such Subsidiary Guarantor, as applicable, may notify the
Administrative Agent and each Lender in writing in advance of the
initiation of such proposed transaction together with any
information concerning such transaction as the Administrative Agent
or any Lender may request, and (ii) the Administrative Agent and
each Lender shall have approved such transaction in writing prior
to the initiation of such transaction, with the approval of each
Lender not to be unreasonably withheld, the Borrower or the
Subsidiary Guarantor, as applicable, may proceed with such
transaction as long as the transaction ultimately is approved by
the board of directors (or similar governing body) of the Eligible
Business (and a majority of which were members of such board of
directors (or similar governing body) at the time such transaction
was initiated) and is otherwise in accordance with the terms of
this Agreement; and
(ii)
such acquisition (1) if such acquisition is a stock acquisition,
shall be of greater than 50% of the issued and outstanding Capital
Stock of such Eligible Business, whether by purchase or as a result
of merger or consolidation (
provided that
the Borrower or such Subsidiary Guarantor, as applicable, shall be
the surviving corporation in any such merger or consolidation), and
in any event shall consist of shares of Capital Stock with
sufficient voting rights which entitles the Borrower or such
Subsidiary Guarantor, as applicable, to elect a majority of the
directors of such Eligible Business and to control the outcome of
any shareholder votes with respect to the shareholders of such
Eligible Business and (2) if such acquisition is an asset
acquisition, shall be of all or a substantial part of an Eligible
Business.
“
Permitted Change of Control Transactions ”
means a Parent Change of Control Transaction or a Holdings Change
of Control Transaction.
“
Permitted Investments ”
means:
(a)
direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States of
America), in each case maturing within three years from the date of
acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard
& Poor’s Ratings Services or from Moody’s Investors
Services, Inc.;
(c)
investments in certificates of deposit, banker’s acceptances
and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than
$500,000,000; and
(d)
money market funds that (i) comply with the criteria set forth
in SEC Rule 2a-7 under the Investment Company Act of 1940,
(ii) are rated AAA by S&P and Aaa by Moody’s and
(iii) have portfolio assets of at least
$5,000,000,000.
“
Permitted Liens ”
means:
(a)
Liens imposed by law for taxes, assessments and governmental
charges or claims that are not yet due or are being contested in
compliance with Section 6.04;
(b)
landlords’, 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 6.04;
(c)
pledges, deposits and statutory trusts made in the ordinary course
of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or
regulations;
(d)
deposits and other Liens to secure industrial revenue bonds, the
performance of bids, trade contracts (other than for borrowed
money), government 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;
(e)
judgment liens in respect of judgments that do not constitute an
Event of Default under paragraph (k) of
Article VIII;
(f)
easements, zoning restrictions, rights-of-way, licenses, covenants
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 Group Members, taken as a whole;
(g)
any interest or title of a lessor under any lease entered into by
the Borrower or any Subsidiary in the ordinary course of its
business and covering only the assets so leased, and any financing
statement filed in connection with any such lease;
(h)
receipt of progress payments and advances from customers in the
ordinary course of business to the extent the same creates a Lien
by operation of law on the related inventory and proceeds
thereof;
(i)
Liens held by third parties on consigned goods incurred in the
ordinary course of business;
(j)
bankers' liens and rights to setoff with respect to deposit
accounts and Liens encumbering margin deposits or brokerage
accounts, in each case, incurred in the ordinary course of
business;
(k)
Liens on insurance policies and the proceeds thereof securing the
financing of the insurance premiums with the providers of such
insurance or their Affiliates in respect thereof; and
(l)
Liens on any assets that are the subject of an agreement for a
disposition thereof expressly permitted under Section 7.04 that
arise due to the existence of such agreement.
“
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, as defined in Section 3(2)
of ERISA (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 any Loan Party 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.
“
Prime Rate ”
means the rate of interest per annum publicly announced from time
to time by JPMCB as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly
announced as being effective.
“
Principal Financial Center ”
means, in the case of any Currency, the principal financial center
where such Currency is cleared and settled, as determined by the
Administrative Agent.
“
Prohibited Transaction ”
has the meaning assigned to such term in Section 406 of ERISA and
Section 4975(f)(3) of the Code.
“
Quarterly Dates ”
means the last Business Day of September, December, March and June
in each year, the first of which shall be the first such day after
the date hereof.
“
Refunded Swingline Loans ”
has the meaning set forth in Section 2.08.
“
Register ”
has the meaning set forth in Section 10.04.
“
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.
“
Reportable Event ”
means any “reportable event,” as defined in Section
4043C() of ERISA or the regulations issued thereunder, other than
those events as to which the 30-day notice period referred to in
Section 4043(c) of ERISA has been waived, with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Code).
“
Required Lenders ”
means, at any time, Lenders having Revolving Credit Exposures and
Available Commitments representing more than 50% of the sum of the
Aggregate Revolving Credit Exposures and the Aggregate Available
Commitments at such time.
“
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 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.
“
Restricted Payment ”
means any dividend or other distribution (whether in cash,
securities or other property) with respect to any shares of any
class of Capital Stock of any Group Member, 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
shares of Capital Stock of any Group Member or any option, warrant
or other right to acquire any such shares of Capital Stock of any
Group Member.
“
Revolving Credit Exposure ”
means, with respect to any Lender at any time, the sum of (a) the
outstanding principal amount of Loans held by such Lender then
outstanding, (b) such Lender’s LC Exposure at such time
and (c) such Lender’s Applicable Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
“
Screen ”
means, for any Currency, the relevant display page for LIBOR for
such Currency (as determined by the Administrative Agent) on the
Telerate Service;
provided that,
if the Administrative Agent determines that there is no such
relevant display page for LIBOR for such Currency,
“Screen” means the relevant display page for LIBOR for
such Currency (as determined by the Administrative Agent) on the
Reuter Monitor Money Rates Service.
“
SEC ”
means the Securities and Exchange Commission, or any regulatory
body that succeeds to the functions thereof.
“
Secured Party ”
has the meaning assigned to such term in the Guarantee and
Collateral Agreement.
“
Security Documents ”
means, collectively, the Guarantee and Collateral Agreement, other
security documents hereafter delivered to the Administrative Agent
granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan
Document and all Uniform Commercial Code financing statements
required by the terms of any such agreement to be filed with
respect to the security interests created pursuant
thereto.
“
Statutory Reserve Rate ”
means, for the Interest Period for any Eurocurrency Borrowing, 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
arithmetic mean, taken over each day in such Interest Period, of
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 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 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.
“
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. Unless otherwise
specified, “Subsidiary” means a Subsidiary of the
Borrower.
“
Subsidiary Guarantor ”
means each Subsidiary of the Borrower other than any Excluded
Foreign Subsidiary or Immaterial Subsidiary.
“
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 Borrower or its
Subsidiaries shall be a Swap Agreement.
“
Swingline Commitment ”
means the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.07 in an aggregate principal amount at
any one time outstanding not to exceed $5,000,000.
“
Swingline Lender ”
means JPMCB, in its capacity as the lender of Swingline
Loans.
“
Swingline Loans ”
has the meaning set forth in Section 2.07.
“
Swingline Participation Amount ”
has the meaning set forth in Section 2.08.
“
TARGET Day ”
means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer payment system (or any successor
settlement system as determined by the Administrative Agent) is
open for the settlement of payments in euro.
“
Taxes ”
means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental
Authority.
“
Transactions ”
means the execution, delivery and performance by each Loan Party of
this Agreement and the other Loan Documents to which such Loan
Party is intended to be a party, the borrowing of Loans 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 or
the Alternate Base Rate.
“
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
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
1.03
Accounting Terms; GAAP .
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time;
provided that,
if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required
Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. To enable the ready and
consistent determination of compliance with the covenants set forth
in Article VII, the Borrower will not change the last day of
its fiscal year from September 30, or the last days of the first
three fiscal quarters in each of its fiscal years from December 31,
March 31 and June 30, respectively.
SECTION
1.04
Currencies; Currency Equivalents; Euro .
At any time, any reference in the definition of the term
“Agreed Foreign Currency” or in any other provision of
this Agreement to the Currency of any particular nation means the
lawful currency of such nation at such time whether or not the name
of such Currency is the same as it was on the date hereof. Except
as provided in Section 2.11(b) and the last sentence of
Section 2.18(a), for purposes of determining (i) whether
the amount of any Borrowing, together with all other Borrowings
then outstanding or to be borrowed at the same time as such
Borrowing, or whether the Aggregate Revolving Credit Exposure
would, in either case, exceed the Aggregate Commitment,
(ii) the Aggregate Available Commitments and (iii) the
outstanding aggregate principal amount of Borrowings, the
outstanding principal amount of any Borrowing that is denominated
in any Foreign Currency shall be deemed to be the Dollar Equivalent
of the amount of the Foreign Currency of such Borrowing determined
as of the date of such Borrowing (determined in accordance with the
last sentence of the definition of the term “Interest
Period”). Wherever in this Agreement in connection with a
Borrowing or Loan an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Borrowing or Loan is
denominated in a Foreign Currency, such amount shall be the
relevant Foreign Currency Equivalent of such Dollar amount (rounded
to the nearest 1,000 units of such Foreign Currency).
Each
obligation hereunder of any party hereto that is denominated
in a Currency of a country that is not a Participating Member
State on the date hereof shall, effective from the date on
which such country becomes a Participating Member State, be
redenominated in euro in accordance with the legislation of
the European Union applicable to the European Monetary
Union;
provided that,
if and to the extent that any such legislation provides that any
such obligation of any such party payable within such Participating
Member State by crediting an account of the creditor can be paid by
the debtor either in euro or such Currency, such party shall be
entitled to pay or repay such amount either in euro or in such
Currency. If the basis of accrual of interest or fees expressed in
this Agreement with respect to an Agreed Foreign Currency of any
country that becomes a Participating Member State after the date on
which such currency becomes an Agreed Foreign Currency shall be
inconsistent with any convention or practice in the interbank
market for the basis of accrual of interest or fees in respect of
the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such country
becomes a Participating Member State;
provided that,
with respect to any Borrowing denominated in such currency that is
outstanding immediately prior to such date, such replacement shall
take effect at the end of the Interest Period therefor. Without
prejudice to the respective liabilities of the Borrower to the
Lenders and of the Lenders to the Borrower under or pursuant to
this Agreement, each provision of this Agreement shall be subject
to such reasonable changes of construction as the Administrative
Agent may from time to time reasonably specify to be necessary or
appropriate to reflect the introduction or changeover to the euro
in any country that becomes a Participating Member State after the
date hereof.
ARTICLE II
THE CREDITS
SECTION
2.01
The Commitments .
Subject to the terms and conditions set forth herein, each Lender
agrees to make Loans in Dollars or in any Agreed Foreign Currency
to the Borrower from time to time during the Availability Period in
an aggregate principal amount that will not result in (a) such
Lender’s Revolving Credit Exposure exceeding such
Lender’s Commitment, (b) the Aggregate Revolving Credit
Exposure exceeding the Aggregate Commitment or (c) the
aggregate amount of Revolving Credit Exposures denominated in
Foreign Currencies exceeding the Aggregate Foreign Currency
Sublimit Dollar Amount. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Loans.
SECTION
2.02
Loans and Borrowings .
(a)
Obligations of Lenders .
Each Loan shall be made as part of a Borrowing consisting of Loans
of the same Currency and Type made by the Lenders ratably in
accordance with their respective Commitments. 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 of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as
required.
(b)
Type of Loans .
Subject to Section 2.14, each Borrowing shall be constituted
entirely of ABR Loans or of Eurocurrency Loans denominated in
a single Currency as the Borrower may request in accordance
herewith. Each ABR Loan shall be denominated in Dollars. Each
Lender at its option may make any 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
Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c)
Minimum Amounts; Limitation on Number of Borrowings
.
Each Eurocurrency Borrowing shall be in an aggregate amount of
$1,000,000 or a larger multiple of $100,000. Each
ABR Borrowing shall be in an aggregate amount equal to
$500,000 or a larger multiple of $100,000;
provided that
an ABR Borrowing may be in an aggregate amount that is equal
to the Aggregate Available Commitments, that is required to finance
the reimbursement of an LC Disbursement as contemplated by
Section 2.04(f) or that is required to finance the
participation in Swingline Loans as contemplated by Section 2.08.
Borrowings of more than one Currency and Type may be outstanding at
the same time;
provided that
there shall not at any time be more than a total of ten
Eurocurrency Borrowings outstanding.
(d)
Limitations on Interest Periods .
Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request (or to elect to convert to or
continue as a Eurocurrency Borrowing) any Borrowing if the Interest
Period requested therefor would end after the Commitment
Termination Date.
SECTION
2.03
Requests for Borrowings .
(a)
Notice by the Borrower .
To request a Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (or, in the case
of Eurocurrency Borrowings denominated in Foreign Currencies, in
writing) (i) in the case of a Eurocurrency Borrowing
denominated in Dollars, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed
Borrowing, (ii) in the case of a Eurocurrency Borrowing
denominated in English Pounds Sterling or euro, not later than
11:00 a.m., London time, four Business Days before the date of
the proposed Borrowing, (iii) in the case of a Eurocurrency
Borrowing denominated in any Agreed Foreign Currency other than
English Pounds Sterling or euro, not later than 11:00 a.m.,
London time, five Business Days before the date of the proposed
Borrowing, or (iv) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing;
provided that
any such notice of an ABR Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by
Section 2.04(f) or to finance participations in Swingline
Loans as contemplated by Section 2.08 may be given not later than
11:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such Borrowing Request shall be irrevocable and, in
the case of requests by telephone, shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower.
(b)
Content of Borrowing Requests .
Each telephonic and written Borrowing Request shall specify the
following information in compliance with
Section 2.02:
(i)
the aggregate amount and Currency of the requested
Borrowing;
(ii)
the date of such Borrowing, which shall be a Business
Day;
(iii)
in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(iv)
in the case of a Eurocurrency Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of
the term “Interest Period” and permitted under
Section 2.02(d); and
(v)
the location and number of the Borrower’s account to which
funds are to be disbursed, which shall comply with the requirements
of Section 2.05.
(c)
Notice by the Administrative Agent to the Lenders
.
Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative 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.
(d)
Failure to Elect .
If no election as to the Currency of a Borrowing is specified, then
the requested Borrowing shall be denominated in Dollars. If no
election as to the Type of a Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing unless an Agreed
Foreign Currency has been specified, in which case the requested
Borrowing shall be a Eurocurrency Borrowing denominated in such
Agreed Foreign Currency. If no Interest Period is specified with
respect to any requested Eurocurrency Borrowing, (i) if the
Currency specified for such Borrowing is Dollars (or if no Currency
has been so specified), the requested Borrowing shall be made
instead as an ABR Borrowing, and (ii) if the Currency
specified for such Borrowing is an Agreed Foreign Currency, the
Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
SECTION
2.04
Letters of Credit .
(a)
General .
Subject to the terms and conditions set forth herein, in addition
to the Loans provided for in Section 2.01, the Borrower may
request the Issuing Lender to issue, at any time and from time to
time during the Availability Period, Letters of Credit denominated
in Dollars for its own account in such form as is acceptable to the
Issuing Lender in its reasonable determination. Letters of Credit
issued hereunder shall constitute utilization of the Commitments.
The Letters of Credit issued or continued for the account of the
Borrower under the Existing Credit Agreement and outstanding on the
Effective Date (the “
Existing Letters of Credit ”)
shall be Letters of Credit for all purposes of this Agreement and
the other Loan Documents.
(b)
Notice of Issuance, Amendment, Renewal or Extension
.
To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by
the Issuing Lender) to the Issuing Lender 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 (d) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. If requested by the Issuing
Lender, the Borrower also shall submit a letter of credit
application on the Issuing Lender’s standard form in
connection with any request for a Letter of Credit. In the event of
any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of
credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(c)
Limitations on Amounts .
A Letter of Credit shall be issued, amended, renewed or extended
only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the Aggregate LC Exposure shall
not exceed the Aggregate Letter of Credit Sublimit Amount,
(ii) the Aggregate Revolving Credit Exposure shall not exceed
the Aggregate Commitment and (iii) the aggregate amount of
Revolving Credit Exposures denominated in Foreign Currencies shall
not exceed the Aggregate Foreign Currency Sublimit Dollar
Amount.
(d)
Expiration Date .
Each Letter of Credit shall expire at or prior to the close of
business on the date that is five Business Days prior to the
Commitment Termination Date.
(e)
Participations .
By the issuance of a Letter of Credit (or an amendment to a Letter
of Credit increasing the amount thereof) by the Issuing Lender, and
without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Lender, and each
Lender hereby acquires from the Issuing Lender, a participation in
such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such
Letter of Credit. 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.
In
consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for account of the Issuing Lender, such
Lender’s Applicable Percentage of each
LC Disbursement made by the Issuing Lender promptly upon
the request of the Issuing Lender at any time from the time of
such LC Disbursement until such LC Disbursement is
reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the
Borrower for any reason. Such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
Such payment obligation shall be absolute and unconditional
and shall not be affected by any circumstance, including (i)
any setoff, counterclaim, recoupment, defense or other right
that such Lender or the Borrower may have against the Issuing
Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default or
the failure to satisfy any of the other conditions specified
in Article V, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other Lender or (v) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. Each such payment shall be
made in the same manner as provided in Section 2.05 with
respect to Loans made by such Lender (and Section 2.05
shall apply,
mutatis
mutandis ,
to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Lender the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to
paragraph (f) of this Section, the Administrative Agent shall
distribute such payment to the Issuing Lender or, to the extent
that the Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Lender, then to such Lenders and the Issuing
Lender as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Lender for any
LC Disbursement shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such
LC Disbursement.
(f)
Reimbursement .
If the Issuing Lender shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to
the Administrative Agent an amount equal to such
LC Disbursement not later than 12:00 noon, New York City
time, on (i) the Business Day that the Borrower receives
notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, or (ii) the
Business Day immediately following the day that such Borrower
receives such notice, if such notice is not received prior to such
time,
provided that,
if such LC Disbursement is not less than $500,000, the
Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such
payment be financed with an ABR Borrowing in an equivalent
amount and, to the extent so financed, such Borrower’s
obligation to make such payment shall be discharged and replaced by
the resulting ABR Borrowing.
If
the 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
Borrower in respect thereof and such Lender’s Applicable
Percentage thereof.
(g)
Obligations Absolute .
The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (f) 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 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 Lender
under a Letter of Credit against presentation of a draft or other
document that does not comply strictly with the terms of such
Letter of Credit, and (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 the Borrower’s obligations
hereunder.
Neither
the Administrative Agent, the Lenders nor the Issuing Lender,
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 by the Issuing Lender 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 Lender;
provided that
the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the
Issuing Lender’s gross negligence or willful misconduct when
determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that:
(i)
the Issuing Lender may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of
Credit without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment
upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of
Credit;
(ii)
the Issuing Lender shall have the right, in its sole discretion, to
decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of such
Letter of Credit; and
(iii)
this sentence shall establish the standard of care to be exercised
by the Issuing Lender when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms
thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with
the foregoing).
(h)
Disbursement Procedures .
The Issuing Lender shall, within a reasonable time following its
receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Lender
shall promptly after such examination notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Lender has made or will
make an LC Disbursement thereunder;
provided that
any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing
Lender and the Lenders with respect to any such
LC Disbursement.
(i)
Interim Interest .
If the Issuing Lender shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the
date that the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Loans;
provided that,
if the Borrower fails to reimburse such LC Disbursement when
due pursuant to paragraph (f) of this Section, then
Section 2.13(c) shall apply. Interest accrued pursuant to this
paragraph shall be for account of the Issuing Lender, except that
interest accrued on and after the date of payment by any Lender
pursuant to paragraph (f) of this Section to reimburse the
Issuing Lender shall be for account of such Lender to the extent of
such payment.
(j)
Replacement of the Issuing Lender .
The Issuing Lender may be replaced at any time by written agreement
between the Borrower, the Administrative Agent, the replaced
Issuing Lender and the successor Issuing Lender. The Administrative
Agent shall notify the Lenders of any such replacement of the
Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for
account of the replaced Issuing Lender pursuant to 2.12(b). From
and after the effective date of any such replacement, (i) the
successor Issuing Lender shall have all the rights and obligations
of the replaced Issuing Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references
herein to the term “Issuing Lender” shall be deemed to
refer to such successor or to any previous Issuing Lender, or to
such successor and all previous Issuing Lenders, as the context
shall require. After the replacement of an Issuing Lender
hereunder, the replaced Issuing Lender shall remain a party hereto
and shall continue to have all the rights and obligations of an
Issuing Lender under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(k)
Cash Collateralization .
If an Event of Default shall occur and be continuing and the
Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposures representing more than
50% of the Aggregate LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall
immediately deposit into the Collateral Account (or such other
collateral account as the Administrative Agent shall establish for
such purpose) an amount in cash equal to, the Aggregate
LC Exposure as of such date
plus any
accrued and unpaid interest thereon;
provided that
the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default described in paragraph (h)
or (i) of Article VIII. Such deposit shall be held by the
Administrative Agent in the Collateral Account as Collateral in the
first instance for the Aggregate LC Exposure under this
Agreement and thereafter for the payment of the “Secured
Obligations” under and as defined in the Guarantee and
Collateral Agreement, and for these purposes the Borrower hereby
grants a security interest to the Administrative Agent for the
benefit of the Secured Parties in the Collateral Account (or such
other collateral account, as applicable) and in any financial
assets (as defined in the Uniform Commercial Code) or other
property held therein.
SECTION
2.05
Funding of Borrowings .
(a)
Funding by Lenders .
Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, Local Time, to the account of the
Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower
designated by the Borrower in the applicable Borrowing
Request;
provided that
ABR Borrowings made to finance the reimbursement of an
LC Disbursement as provided in Section 2.04(f) shall be
remitted by the Administrative Agent to the Issuing Lender and
Loans made to repay Refunded Swingline Loans pursuant to Section
2.08(b) shall be remitted by the Administrative Agent to the
Swingline Lender.
(b)
Presumption by the Administrative Agent .
Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such
date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share of the Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree
to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans, in each case together with any
related reasonable out-of-pocket costs incurred by the
Administrative Agent. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.
SECTION
2.06
Interest Elections .
(a)
Elections by the Borrower .
The Loans constituting each Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case
of a Eurocurrency Borrowing, shall have the Interest Period
specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a Borrowing of a different Type
or to continue such Borrowing as a Borrowing of the same Type and,
in the case of a Eurocurrency Borrowing, may elect the Interest
Period therefor, all as provided in this Section;
provided that
(i) a Borrowing denominated in one Currency may not be
continued as, or converted to, a Borrowing in a different Currency,
(ii) no Eurocurrency Borrowing denominated in a Foreign
Currency may be continued if, after giving effect thereto, the
Aggregate Revolving Credit Exposure would exceed the Aggregate
Commitment, and (iii) a Eurocurrency Borrowing denominated in
a Foreign Currency may not be converted to a Borrowing of a
different Type. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders
holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate
Borrowing.
(b)
Notice of Elections .
To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone (or,
in the case of Borrowings in Foreign Currencies, in writing) by the
time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective
date of such election. Each such Interest Election Request shall be
irrevocable and, in the case of requests by telephone, shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the
Borrower.
(c)
Content of Interest Election Requests .
Each telephonic and written Interest Election Request shall specify
the following information in compliance with
Section 2.02:
(i)
the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph
shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii)
whether, in the case of a Borrowing denominated in Dollars, the
resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv)
if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period therefor after giving effect to such election,
which shall be a period contemplated by the definition of the term
“Interest Period” and permitted under
Section 2.02(d).
(d)
Notice by the Administrative Agent to the Lenders
.
Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details
thereof and of such Lender’s portion of each resulting
Borrowing.
(e)
Failure to Elect; Events of Default .
If the Borrower fails to deliver a timely and complete Interest
Election Request with respect to a Eurocurrency Borrowing prior to
the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, (i) if such Borrowing
is denominated in Dollars, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing, and
(ii) if such Borrowing is denominated in a Foreign Currency,
such Borrower shall be deemed to have selected an Interest Period
of one month’s duration. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (A) no outstanding Borrowing
denominated in Dollars may be converted to or continued as a
Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency
Borrowing denominated in Dollars shall be converted to an
ABR Borrowing at the end of the Interest Period therefor and
(C) no outstanding Eurocurrency Borrowing denominated in a
Foreign Currency may have an Interest Period of more than one
month’s duration.
SECTION
2.07
Swingline Commitment .
(a)
Subject to the terms and conditions hereof, the Swingline Lender
agrees to make a portion of the credit otherwise available to the
Borrower under the Commitments from time to time during the
Availability Period by making swing line loans in Dollars
(“
Swingline Loans ”)
to the Borrower;
provided that
(i) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed the Swingline Commitment then in
effect (notwithstanding that the Swingline Loans outstanding at any
time, when aggregated with the Swingline Lender’s other
outstanding Loans, may exceed the Swingline Commitment then in
effect) and (ii) the Borrower shall not request, and the Swingline
Lender shall not make, any Swingline Loan if, after giving effect
to the making of such Swingline Loan, the Aggregate Available
Commitments would be less than zero. During the Availability
Period, the Borrower may use the Swingline Commitment by borrowing,
repaying and reborrowing, all in accordance with the terms and
conditions hereof. Swingline Loans shall be ABR Loans
only.
(b)
The Borrower shall repay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the
Commitment Termination Date and the first date after such Swingline
Loan is made that is the 15th or last day of a calendar month and
is at least five Business Days after such Swingline Loan is
made;
provided that
on each date that a Loan is borrowed, the Borrower shall repay all
Swingline Loans then outstanding.
SECTION
2.08
Procedure and Refunding of Swingline Loans
.
(a)
Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable
telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swingline Lender not later than 2:00
P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the
Availability Period). Each Borrowing under the Swingline Commitment
shall be in an amount equal to $100,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 P.M., New York City
time, on the Borrowing Date specified in a notice in respect of
Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately
available funds equal to the amount of the Swingline Loan to be
made by the Swingline Lender. The Administrative Agent shall make
the proceeds of such Swingline Loan available to the Borrower on
such Borrowing Date by depositing such proceeds in the account of
the Borrowing with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b)
The Swingline Lender, at any time and from time to time in its sole
and absolute discretion may, on behalf of the Borrower (which
hereby irrevocably directs the Swingline Lender to act on its
behalf), on one Business Day’s notice given by the Swingline
Lender no later than 12:00 Noon, New York City time, request each
Lender to make, and each Lender hereby agrees to make, a Loan, in
an amount equal to such Lender’s Applicable Percentage of the
aggregate amount of the Swingline Loans (the “
Refunded Swingline Loans ”)
outstanding on the date of such notice, to repay the Swingline
Lender. Each Lender shall make the amount of such Loan available to
the Administrative Agent at the Funding Office in immediately
available funds, not later than 10:00 A.M., New York City time, one
Business Day after the date of such notice. The proceeds of such
Loans shall be immediately made available by the Administrative
Agent to the Swingline Lender for application by the Swingline
Lender to the repayment of the Refunded Swingline Loans. The
Borrower irrevocably authorizes the Swingline Lender to charge the
Borrower’s accounts with the Administrative Agent (up to the
amount available in each such account) in order to immediately pay
the amount of such Refunded Swingline Loans to the extent amounts
received from the Lenders are not sufficient to repay in full such
Refunded Swingline Loans.
(c)
If prior to the time a Loan would have otherwise been made pursuant
to Section 2.08(b), one of the events described in paragraph (h) or
(i) of Article VII shall have occurred and is continuing with
respect to the Borrower or if for any other reason, as determined
by the Swingline Lender in its sole discretion, Loans may not be
made as contemplated by Section 2.08(b), each Lender shall, on the
date such Loan was to have been made pursuant to the notice
referred to in Section 2.08(b), purchase for cash an undivided
participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the “
Swingline Participation Amount ”)
equal to (i) such Lender’s Applicable Percentage times (ii)
the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such
Loans.
(d)
Whenever, at any time after the Swingline Lender has received from
any Lender such Lender’s Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline
Loans, the Swingline Lender will distribute to such Lender its
Swingline Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which
such Lender’s participating interest was outstanding and
funded and, in the case of principal and interest payments, to
reflect such Lender’s pro rata portion of such payment if
such payment is not sufficient to pay the principal of and interest
on all Swingline Loans then due);
provided ,
however ,
that in the event that such payment received by the Swingline
Lender is required to be returned, such Lender will return to the
Swingline Lender any portion thereof previously distributed to it
by the Swingline Lender.
(e)
Each Lender’s obligation to make the Loans referred to in
Section 2.08(b) and to purchase participating interests pursuant to
Section 2.08(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender
or the Borrower may have against the Swingline Lender, the Borrower
or any other Person for any reason whatsoever, (ii) the occurrence
or continuance of a Default or the failure to satisfy any of the
other conditions specified in Article V, (iii) any adverse change
in the condition (financial or otherwise) of the Borrower, (iv) any
breach of this Agreement or any other Loan Document by the
Borrower, any other Loan Party or any other Lender or (v) any other
circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
SECTION
2.09
Termination, Reduction and Increase of the
Commitments .
(a)
Scheduled Termination .
Unless previously terminated, the Commitments of the Lenders shall
terminate on the Commitment Termination Date.
(b)
Voluntary Termination or Reduction .
The Borrower may at any time terminate, or from time to time
reduce, the Aggregate Commitment,
provided that
(i) each reduction of the Aggregate Commitment pursuant to
this Section shall be in an amount that is $500,000 or a larger
multiple of $100,000 and (ii) the Borrower shall not terminate
or reduce the Aggregate Commitment if, after giving effect to any
concurrent prepayment of the Loans in accordance with
Section 2.11, the Aggregate Revolving Credit Exposure would
exceed the Aggregate Commitment. The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the
Aggregate Commitment under this paragraph (b) at least three
Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.
Promptly following receipt of
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