<PAGE>
EXHIBIT 10.28
EXECUTION VERSION
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$255,000,000
CREDIT AGREEMENT
DATED AS OF FEBRUARY 13, 2004,
AMONG
IONICS, INCORPORATED,
AS BORROWER,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
AS SUBSIDIARY GUARANTORS,
THE LENDERS PARTY HERETO,
UBS SECURITIES LLC,
AS LEAD ARRANGER, SOLE BOOKMANAGER AND DOCUMENTATION AGENT,
FLEET SECURITIES, INC. AND BANK OF AMERICA, N.A.
AS SYNDICATION AGENTS,
WACHOVIA BANK, N.A. AND GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS,
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
UBS LOAN FINANCE LLC,
AS SWINGLINE LENDER
AND
HSBC BANK USA,
AS ISSUING BANK
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, New York 10022-4802
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01 Defined
Terms................................................ 2
SECTION 1.02 Classification of
Loans and Borrowings....................... 37
SECTION 1.03 Terms
Generally..............................................
37
SECTION 1.04 Accounting Terms;
GAAP....................................... 37
SECTION 1.05 Resolution of Drafting
Ambiguities........................... 37
ARTICLE II
THE CREDITS
SECTION 2.01
Commitments..................................................
38
SECTION 2.02
Loans........................................................
38
SECTION 2.03 Borrowing
Procedure.......................................... 39
SECTION 2.04 Evidence of Debt;
Repayment of Loans......................... 40
SECTION 2.05
Fees.........................................................
41
SECTION 2.06 Interest on
Loans............................................ 42
SECTION 2.07 Termination and
Reduction of Commitments..................... 42
SECTION 2.08 Interest
Elections........................................... 43
SECTION 2.09 Amortization of Term
Borrowings.............................. 44
SECTION 2.10 Optional and Mandatory
Prepayments of Loans.................. 44
SECTION 2.11 Alternate Rate of
Interest................................... 47
SECTION 2.12 Increased
Costs.............................................. 48
SECTION 2.13 Breakage
Payments............................................ 49
SECTION 2.14 Payments Generally;
Pro Rata Treatment; Sharing of Setoffs... 49
SECTION 2.15
Taxes........................................................
51
SECTION 2.16 Mitigation
Obligations; Replacement of Lenders............... 52
SECTION 2.17 Swingline
Loans.............................................. 53
SECTION 2.18 Letters of
Credit............................................ 54
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Organization;
Powers......................................... 60
SECTION 3.02 Authorization;
Enforceability................................ 61
SECTION 3.03 No
Conflicts.................................................
61
SECTION 3.04 Financial
Statements......................................... 61
SECTION 3.05
Properties...................................................
62
SECTION 3.06 Intellectual
Property........................................ 63
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SECTION 3.07 Equity Interests and
Subsidiaries............................ 63
SECTION 3.08 Litigation; Compliance
with Laws............................. 64
SECTION 3.09
Agreements...................................................
64
SECTION 3.10 Federal Reserve
Regulations.................................. 65
SECTION 3.11 Investment Company
Act; Public Utility Holding Company Act... 65
SECTION 3.12 Use of
Proceeds.............................................. 65
SECTION 3.13
Taxes........................................................
65
SECTION 3.14 No Material
Misstatements.................................... 66
SECTION 3.15 Labor
Matters................................................
66
SECTION 3.16
Solvency.....................................................
66
SECTION 3.17 Employee Benefit
Plans....................................... 66
SECTION 3.18 Environmental
Matters........................................ 67
SECTION 3.19
Insurance....................................................
68
SECTION 3.20 Security
Documents........................................... 68
SECTION 3.21 Acquisition Documents;
Representations and Warranties in
Acquisition Agreement........................................
69
SECTION 3.22 Anti-Terrorism
Law........................................... 70
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.01 Conditions to Initial
Credit Extension....................... 71
SECTION 4.02 Conditions to All
Credit Extensions.......................... 76
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01 Financial Statements,
Reports, etc........................... 77
SECTION 5.02 Litigation and Other
Notices................................. 79
SECTION 5.03 Existence; Businesses
and Properties......................... 80
SECTION 5.04
Insurance....................................................
80
SECTION 5.05 Obligations and
Taxes........................................ 82
SECTION 5.06 Employee
Benefits............................................ 82
SECTION 5.07 Maintaining Records;
Access to Properties and Inspections;
Annual Meetings..............................................
83
SECTION 5.08 Use of
Proceeds.............................................. 83
SECTION 5.09 Compliance with
Environmental Laws; Environmental Reports.... 83
SECTION 5.10 Interest Rate
Protection..................................... 83
SECTION 5.11 Additional Collateral;
Additional Guarantors................. 84
SECTION 5.12 Security Interests;
Further Assurances....................... 86
SECTION 5.13 Information Regarding
Collateral............................. 86
SECTION 5.14 Dissolution of
Immaterial Subsidiaries....................... 87
SECTION 5.15 Letters of Credit to
be Collateralized....................... 87
SECTION 5.16 Certain Post-Closing
Matters................................. 87
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01
Indebtedness.................................................
88
SECTION 6.02
Liens........................................................
89
SECTION 6.03 Sale and Leaseback
Transactions.............................. 92
SECTION 6.04 Investment, Loan and
Advances................................ 92
SECTION 6.05 Mergers and
Consolidations................................... 94
SECTION 6.06 Asset
Sales..................................................
95
SECTION 6.07
Acquisitions.................................................
95
SECTION 6.08
Dividends....................................................
96
SECTION 6.09 Transactions with
Affiliates................................. 96
SECTION 6.10 Financial
Covenants.......................................... 97
SECTION 6.11 Prepayments of Other
Indebtedness; Modifications of
Organizational Documents and Other Documents, etc............
99
SECTION 6.12 Limitation on Certain
Restrictions on Subsidiaries........... 99
SECTION 6.13 Limitation on Issuance
of Capital Stock...................... 100
SECTION 6.14 Limitation on Creation
of Subsidiaries....................... 100
SECTION 6.15
Business.....................................................
100
SECTION 6.16 Limitation on
Accounting Changes............................. 100
SECTION 6.17 Fiscal
Year.................................................. 100
SECTION 6.18 Lease
Obligations............................................
100
SECTION 6.19 No Further Negative
Pledge................................... 100
SECTION 6.20 Anti-Terrorism Law;
Anti-Money Laundering.................... 101
SECTION 6.21 Embargoed
Person............................................. 101
SECTION 6.22 Immaterial
Subsidiaries...................................... 101
ARTICLE VII
GUARANTEE
SECTION 7.01 The
Guarantee................................................
102
SECTION 7.02 Obligations
Unconditional.................................... 102
SECTION 7.03
Reinstatement................................................
103
SECTION 7.04 Subrogation; Rights of
Reimbursement; Subordination.......... 103
SECTION 7.05
Remedies.....................................................
105
SECTION 7.06 Instrument for the
Payment of Money.......................... 105
SECTION 7.07 Continuing
Guarantee......................................... 105
SECTION 7.08 General Limitation on
Guarantee Obligations.................. 105
SECTION 7.09 Release of
Guarantors........................................ 106
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ARTICLE VIII
EVENTS OF DEFAULT
ARTICLE IX
COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
SECTION 9.01 Collateral
Account........................................... 109
SECTION 9.02 Proceeds of
Destruction, Taking and Collateral
Dispositions.................................................
110
SECTION 9.03 Application of
Proceeds...................................... 110
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 10.01
Appointment..................................................
111
SECTION 10.02 Agent in its Individual
Capacity............................. 111
SECTION 10.03 Exculpatory
Provisions....................................... 111
SECTION 10.04 Reliance by
Agent............................................ 112
SECTION 10.05 Delegation of
Duties......................................... 112
SECTION 10.06 Successor
Agent.............................................. 112
SECTION 10.07 Non-Reliance on Agent and
Other Lenders...................... 112
SECTION 10.08 Name
Agents..................................................
113
SECTION 10.09
Indemnification..............................................
113
ARTICLE XI
MISCELLANEOUS
SECTION 11.01
Notices......................................................
113
SECTION 11.02 Waivers;
Amendment........................................... 114
SECTION 11.03 Expenses;
Indemnity.......................................... 117
SECTION 11.04 Successors and
Assigns....................................... 119
SECTION 11.05 Survival of
Agreement........................................ 121
SECTION 11.06 Counterparts; Integration;
Effectiveness..................... 122
SECTION 11.07
Severability.................................................
122
SECTION 11.08 Right of
Setoff.............................................. 122
SECTION 11.09 Governing Law; Jurisdiction;
Consent to Service of Process... 122
SECTION 11.10 Waiver of Jury
Trial......................................... 123
SECTION 11.11
Headings.....................................................
123
SECTION 11.12
Confidentiality..............................................
123
SECTION 11.13 Interest Rate
Limitation..................................... 124
SECTION 11.14 Lender
Addendum.............................................. 124
SECTION 11.15 Obligations
Absolute......................................... 124
SECTION 11.16 Escrow
Agreements............................................ 125
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ANNEXES
Annex I
Applicable Margin
Annex II
Amortization Table
SCHEDULES
Schedule 1.01(a)
Excluded Project Subsidiaries
Schedule 1.01(b)
Existing Non-Recourse Indebtedness
Schedule 1.01(c)
Mortgaged Property
Schedule 1.01(d)
Refinancing Indebtedness to Be Repaid
Schedule 1.01(e)
Subsidiary Guarantors
Schedule 2.18(m)
Existing Issuing Bank Letters of Credit
Schedule 3.03
Governmental Approvals; Compliance with Laws
Schedule 3.05(b)
Real Property
Schedule 3.06(c)
Violations or Proceedings
Schedule 3.07(a)
Subsidiaries
Schedule 3.07(c)
Corporate Organizational Chart
Schedule 3.07(d)
Immaterial Subsidiaries
Schedule 3.09(c)
Material Agreements
Schedule 3.18
Environmental Matters
Schedule 3.19
Insurance
Schedule 3.21
Acquisition Documents
Schedule 4.01(g)
Local Counsel
Schedule 4.01(o)(vi)
Landlord Access Agreements
Schedule 4.01(p)(iii)
Title Insurance Amounts
Schedule 5.11(e)
Mortgages to be Obtained after the Closing Date
Schedule 5.15
Letters of Credit to be Collateralized
Schedule 5.16
Certain Post Closing Items
Schedule 6.01(b)
Existing Indebtedness
Schedule 6.02(c)
Existing Liens
Schedule 6.04(b)
Existing Investments
Schedule 6.06(c)
Specified Assets Held for Sale
EXHIBITS
Exhibit A
Form of Administrative Questionnaire
Exhibit B
Form of Assignment and Acceptance
Exhibit C
Form of Borrowing Request
Exhibit D
Form of Compliance Certificate
Exhibit E
Form of Interest Election Request
Exhibit F
Form of Joinder Agreement
Exhibit G
Form of Landlord Access Agreement
Exhibit H
Form of LC Request
Exhibit I
Form of Lender Addendum
Exhibit J-1
Form of Mortgage
Exhibit J-2
Form of Leasehold Mortgage
Exhibit K-1
Form of Term Note
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Exhibit K-2
Form of Revolving Note
Exhibit K-3
Form of Swingline Note
Exhibit L-l
Form of Perfection Certificate
Exhibit L-2
Form of Perfection Certificate Supplement
Exhibit M
Form of Security Agreement
Exhibit N-1
Form of Opinion of Company Counsel
Exhibit N-2
Form of Opinion of Local Counsel
Exhibit O
Form of Solvency Certificate
Exhibit P
Form of Intercompany Note
Exhibit Q
Form of Non-Bank Certificate
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CREDIT AGREEMENT
This CREDIT AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this
"AGREEMENT") dated as of February 13, 2004
among IONICS, INCORPORATED, a Massachusetts
corporation ("BORROWER"), the
Subsidiary Guarantors (such term and each
other capitalized term used but not
defined herein having the meaning given to
it in Article I), the Lenders, UBS
SECURITIES LLC, as lead arranger (in such
capacity, "ARRANGER"), sole
bookmanager and documentation agent (in
such capacity, "DOCUMENTATION AGENT"),
FLEET SECURITIES, INC. and BANK OF AMERICA,
N.A., as syndication agents (in such
capacity, the "SYNDICATION AGENTS"),
WACHOVIA BANK, N.A. and GENERAL ELECTRIC
CAPITAL CORPORATION, as co-documentation
agents (in such capacity, the
"CO-DOCUMENTATION AGENTS"), UBS LOAN
FINANCE LLC, as swingline lender (in such
capacity, "SWINGLINE LENDER"), UBS AG,
STAMFORD BRANCH, as administrative agent
(in such capacity, "ADMINISTRATIVE AGENT")
for the Lenders and as collateral
agent (in such capacity, "COLLATERAL
AGENT") for the Secured Parties, and HSBC
BANK USA, as issuing bank (in such
capacity, "ISSUING BANK").
WITNESSETH:
WHEREAS, Borrower has entered into a purchase agreement, dated
as of November 18, 2003 (as amended,
supplemented or otherwise modified from
time to time in accordance with the
provisions hereof and thereof, the
"ACQUISITION AGREEMENT"), with the
individuals and entities listed on Exhibit A
thereto (each a "SELLER" and, collectively,
the "SELLERS") to acquire (the
"ACQUISITION") all of the issued and
outstanding shares of capital stock or
other equity interests of Ecolochem, Inc.,
Ecolochem International, Inc.,
Ecolochem S.A.R.L. and Moson Holdings, LLC
(together with their respective
subsidiaries, the "ACQUIRED BUSINESS").
WHEREAS, in order to finance a portion of the consideration
under the Acquisition Agreement, Borrower
will (i) issue up to 4,905,660 shares
of Borrower's common stock (the "STOCK
CONSIDERATION") and (ii) utilize cash on
hand of not less than $55.5 million,
subject to increase by an amount not
greater than (x) $13.5 million if and to
the extent that the Stock Consideration
is reduced in accordance with the
Acquisition Agreement on the Closing Date and
(y) an additional $5 million if and to the
extent that the amount Borrower is
required on the Closing Date to make
payments under Section 1.05(b) of the
Acquisition Agreement exceeding $15.0
million (the "CASH PAYMENT" and, together
with the Stock Consideration, the "EQUITY
FINANCING").
WHEREAS, Borrower has requested the Lenders to extend credit
in the form of (a) Term Loans on the
Closing Date, in an aggregate principal
amount not in excess of $175 million, and
(b) revolving extensions of credit at
any time and from time to time prior to the
Revolving Maturity Date, in an
aggregate principal amount at any time
outstanding not in excess of $80 million,
which shall consist of a $60 million
sub-facility to be available solely for the
issuance of letters of credit and a $20
million sub-facility to be available
solely for the making of loans to be used
for general working capital purposes
(including to make payments with respect to
the Acquisition and to effect
Permitted Acquisitions), none of the
proceeds of which will be drawn on the
Closing Date (except to the extent of
replacement letters of credit in an amount
not to exceed $60 million and otherwise on
terms reasonably satisfactory to the
Administrative Agent).
<PAGE>
WHEREAS, Borrower has requested the Swingline Lender to make
Swingline Loans, at any time and from time
to time prior to the Revolving
Maturity Date, in an aggregate principal
amount at any time outstanding not in
excess of $7.5 million.
WHEREAS, Borrower has requested the Issuing Bank to issue
letters of credit, in an aggregate face
amount at any time outstanding not in
excess of $60 million, to support payment
obligations incurred in the ordinary
course of business by Borrower and its
Subsidiaries.
WHEREAS, the proceeds of the Loans are to be used in
accordance with Section 3.12.
NOW, THEREFORE, the Lenders are willing to extend such credit
to Borrower and the Issuing Bank is willing
to issue letters of credit for the
account of Borrower on the terms and
subject to the conditions set forth herein.
Accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings
specified below:
"ABR", when used in reference to any Loan or Borrowing, is
used when such Loan, or the Loans
comprising such Borrowing, are bearing
interest at a rate determined by reference
to the Alternate Base Rate.
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest at a rate determined by reference
to the Alternate Base Rate in
accordance with the provisions of Article
II.
"ABR TERM LOAN" shall mean any Term Loan bearing interest at a
rate determined by reference to the
Alternate Base Rate in accordance with the
provisions of Article II.
"ACQUIRED BUSINESS" shall have the meaning assigned to such
term in the first recital hereto.
"ACQUISITION" shall have the meaning assigned to such term in
the first recital hereto.
"ACQUISITION AGREEMENT" shall have the meaning assigned to
such term in the first recital hereto.
"ACQUISITION CONSIDERATION" shall mean the purchase
consideration for any Permitted Acquisition
and all other payments by Borrower
or any of its Subsidiaries in exchange for,
or as part of, or in connection
with, any Permitted Acquisition, whether
paid in cash or by exchange of Equity
Interests or of properties or otherwise and
whether payable at or prior to the
consummation of such Permitted Acquisition
or deferred for payment at any future
time, whether or not any such future
payment is subject to the occurrence of any
contingency, and includes any and all
payments representing the purchase price
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and any assumptions of Indebtedness,
"earn-outs" and other agreements to make
any payment the amount of which is, or the
terms of payment of which are, in any
respect subject to or contingent upon the
revenues, income, cash flow or profits
(or the like) of any person or business;
provided that any such future payment
that is subject to a contingency shall be
considered Acquisition Consideration
only to the extent of the reserve, if any,
required under GAAP at the time of
such sale to be established in respect
thereof by Borrower or any of its
Subsidiaries.
"ACQUISITION DOCUMENTS" shall mean the collective reference to
the Acquisition Agreement and the other
documents listed on Schedule 3.21.
"ADDITIONAL NON-RECOURSE INDEBTEDNESS" shall mean Indebtedness
that constitutes Non-Recourse Indebtedness
of an Excluded Project Subsidiary
that is not a Subsidiary of Borrower as of
the Closing Date (and any Permitted
Refinancing Indebtedness in respect
thereof), which Indebtedness is incurred for
the sole purpose of financing the
acquisition, development, construction,
operation, maintenance, repair or
improvement of certain specified fixed or
capital assets of such Excluded Project
Subsidiary, which fixed or capital
assets are not then and were at no time
previously owned by a Loan Party;
provided that the Administrative Agent
shall have been afforded a reasonable
opportunity to review all underlying
documents relating to such Indebtedness
(including by way of engagement of local
counsel in applicable foreign
jurisdictions) in order to confirm, and
shall have confirmed, that such
Indebtedness satisfies each of the
conditions set forth in the definition of
"Non-Recourse Indebtedness".
"ADJUSTED LIBOR RATE" shall mean, with respect to any
Eurodollar Borrowing for any Interest
Period, (a) an interest rate per annum
(rounded upward, if necessary, to the next
1/100th of 1%) determined by the
Administrative Agent to be equal to the
LIBOR Rate for such Eurodollar Borrowing
in effect for such Interest Period divided
by (b) 1 minus the Statutory Reserves
(if any) for such Eurodollar Borrowing for
such Interest Period.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such
term in the preamble hereto and includes
each other person appointed as the
successor thereto pursuant to Article
X.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to
such term in Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or
such other form as may be supplied
from time to time by the Administrative
Agent.
"AFFILIATE" shall mean, when used 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; provided, however, that,
solely for purposes of Section 6.09,
the term "Affiliate" shall also include (i)
any person that directly or
indirectly owns more than 10% of any class
of Equity Interests of the person
specified or (ii) any person that is an
executive officer or director of the
person specified.
"AGENTS" shall mean the Arranger, the Documentation Agent, the
Syndication Agents, the Co-Documentation
Agents, the Administrative Agent and
the Collateral Agent; and "AGENT" shall
mean any of them.
"AGGREGATE LC EXPOSURE" shall mean the aggregate face amount
of all undrawn letters of credit and
letters of guaranty issued by, on behalf of
or for the benefit of Borrower or any of
its
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Subsidiaries (whether issued under this
Agreement or otherwise) plus the
aggregate drawn amount of such letters of
credit and letters of guaranty that
have not yet ripened into reimbursement
obligations.
"AGGREGATE REVOLVING LOAN COMMITMENTS" shall mean $20 million,
as the same may be reduced from time to
time pursuant to Section 2.07.
"AGREEMENT" shall have the meaning assigned to such term in
the preamble hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum (rounded upward, if necessary, to the
next 1/100th of 1%) equal to the
greater of (a) the Base Rate in effect on
such day and (b) the Federal Funds
Effective Rate in effect on such day plus
0.50%. If the Administrative Agent
shall have determined (which determination
shall be conclusive absent manifest
error) that it is unable to ascertain the
Federal Funds Effective Rate for any
reason, including the inability or failure
of the Administrative Agent to obtain
sufficient quotations in accordance with
the terms of the definition thereof,
the Alternate Base Rate shall be determined
without regard to clause (b) of the
preceding sentence until the circumstances
giving rise to such inability no
longer exist. Any change in the Alternate
Base Rate due to a change in the Base
Rate or the Federal Funds Effective Rate
shall be effective on the effective
date of such change in the Base Rate or the
Federal Funds Effective Rate,
respectively.
"ANTI-TERRORISM LAWS" shall have the meaning assigned to such
term in Section 3.22.
"APPLICABLE MARGIN" shall mean, for any day, (a) with respect
to any Revolving Loan, the applicable
percentage set forth in Annex I under the
appropriate caption, (b) with respect to
any Term Loan that is an ABR Loan,
1.75% per annum and (c) with respect to any
Term Loan that is a Eurodollar Loan,
2.75% per annum.
"ARRANGER" shall have the meaning assigned to such term in the
preamble hereto.
"ASSET SALE" shall mean (a) any conveyance, sale, lease,
sublease, assignment, transfer or other
disposition (including by way of merger
or consolidation and including any Sale and
Leaseback Transaction) of any asset
(excluding sales of inventory and
dispositions of cash equivalents, in each
case, in the ordinary course of business)
by Borrower or any of its Subsidiaries
and (b) any issuance or sale of any Equity
Interests of any Subsidiary of
Borrower, in each case, to any person other
than (i) Borrower, (ii) any
Subsidiary Guarantor or (iii) other than
for purposes of Section 6.06, any other
Subsidiary of Borrower.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an
assignee, and accepted by the
Administrative Agent, substantially in the
form of Exhibit B, or such other form
as shall be approved by the Administrative
Agent.
"ATTRIBUTABLE INDEBTEDNESS" shall mean, when used with respect
to any Sale and Leaseback Transaction, as
at the time of determination, the
present value (discounted at a rate
equivalent to Borrower's then-current
weighted average cost of funds for borrowed
money as at the time of
determination, compounded on a semi-annual
basis) of the total obligations of
the lessee for rental payments during the
remaining term of each lease included
in any such Sale and Leaseback
Transaction.
"AUTO-RENEWAL LETTER OF CREDIT" shall have the meaning
assigned to such term in Section
2.18(c).
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"BAILEE LETTER" shall have the meaning assigned thereto in the
Security Agreement.
"BASE RATE" shall mean, for any day, a rate per annum that is
equal to the corporate base rate of
interest established by the Administrative
Agent from time to time; each change in the
Base Rate shall be effective on the
date such change is effective. The
corporate base rate is not necessarily the
lowest rate charged by the Administrative
Agent to its customers.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"BOARD OF DIRECTORS" shall mean, with respect to any person,
(i) in the case of any corporation, the
board of directors of such person, (ii)
in the case of any limited liability
company, the board of managers of such
person, (iii) in the case of any
partnership, the Board of Directors of the
general partner of such person or (iv) the
functional equivalent of the
foregoing.
"BORROWER" shall have the meaning assigned to such term in the
preamble hereto.
"BORROWING" shall mean (a) Loans of the same Class and Type,
made, converted or continued on the same
date and, in the case of Eurodollar
Loans, as to which a single Interest Period
is in effect, or (b) a Swingline
Loan.
"BORROWING REQUEST" shall mean a request by Borrower in
accordance with the terms of Section 2.03
and substantially in the form of
Exhibit C, or such other form as shall be
approved by the Administrative Agent.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which banks in New
York City are authorized or required
by law to close; provided, however, that
when used in connection with a
Eurodollar Loan, the term "Business Day"
shall also exclude any day on which
banks are not open for dealings in dollar
deposits in the London interbank
market.
"CAPITAL EXPENDITURES" shall mean, for any period, without
duplication, the increase during that
period in the gross property, plant or
equipment account in the consolidated
balance sheet of Borrower and its
Subsidiaries, in accordance with GAAP,
whether such increase is due to purchase
of properties for cash or financed by the
incurrence of Indebtedness, but
excluding (i) expenditures made with Net
Cash Proceeds of Asset Sales in
accordance with Section 2.10(c), (ii)
expenditures made in connection with the
replacement, substitution or restoration of
assets pursuant to Section 2.10(e)
and (iii) any portion of such increase
attributable solely to acquisitions of
property, plant and equipment in Permitted
Acquisitions.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean 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.
"CASH EQUIVALENTS" shall mean, as to any person, (a)
securities issued, or directly,
unconditionally and fully guaranteed or insured,
by the United States or any agency or
instrumentality thereof, the United
Kingdom, France, Italy, Spain, Australia or
any other country approved by the
Administrative Agent (provided that the
full faith and credit of the United
States or such other country is
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<PAGE>
pledged in support thereof) having
maturities of not more than one year from the
date of acquisition by such person; (b)
time deposits and certificates of
deposit of any Lender or any commercial
bank having, or which is the principal
banking subsidiary of a bank holding
company organized under the laws of the
United States, any state thereof, the
District of Columbia, the United Kingdom,
France, Italy, Spain, Australia or any
other country approved by the
Administrative Agent having, capital and
surplus aggregating in excess of $500
million and a rating of "A" (or such other
similar equivalent rating) or higher
by at least one nationally recognized
statistical rating organization (as
defined in Rule 436 under the Securities
Act) with maturities of not more than
one year from the date of acquisition by
such person; (c) repurchase obligations
with a term of not more than 30 days for
underlying securities of the types
described in clause (a) above entered into
with any bank meeting the
qualifications specified in clause (b)
above, which repurchase obligations are
secured by a valid perfected security
interest in the underlying securities; (d)
commercial paper issued by any person
incorporated in the United States rated at
least A-1 or the equivalent thereof by
S&P or at least P-I or the equivalent
thereof by Moody's, and in each case
maturing not more than one year after the
date of acquisition by such person; (e)
investments in money market funds
substantially all of whose assets are
comprised of securities of the types
described in clauses (a) through (d) above;
and (f) demand deposit accounts
maintained in the ordinary course of
business.
"CASH INTEREST EXPENSE" shall mean, for any period,
Consolidated Interest Expense for such
period, less the sum of (a) interest on
any debt paid by the increase in the
principal amount of such debt including by
issuance of additional debt of such kind
and (b) items described in clause (c)
or (g) of the definition of "Consolidated
Interest Expense".
"CASUALTY EVENT" shall mean any loss of title or any loss of
or damage to or destruction of, or any
condemnation or other taking (including
by any Governmental Authority) of, any
property of Borrower or any of its
Subsidiaries. "Casualty Event" shall
include but not be limited to any taking of
all or any part of any Real Property of any
person or any part thereof, in or by
condemnation or other eminent domain
proceedings pursuant to any law, or by
reason of the temporary requisition of the
use or occupancy of all or any part
of any Real Property of any person or any
part thereof by any Governmental
Authority, civil or military.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et
seq.
A "CHANGE IN CONTROL" shall be deemed to have occurred if
(other than as a result of the Transactions
occurring on or before the Closing
Date):
(a) at any
time a "change of control" or similar event
occurs under and as defined in any Material Indebtedness;
(b) any
"person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that for purposes of this clause such person
or
group shall be deemed to have "beneficial ownership" of all
securities
that such person or group has the right to acquire, whether such
right
is exercisable immediately or only after the passage of time),
directly
or indirectly, of Voting Stock of Borrower representing more than
35%
of the voting power of the total outstanding Voting Stock of
Borrower;
or
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<PAGE>
(c) during any
period of two consecutive years,
individuals who at the beginning of such period constituted the
Board
of Directors of Borrower (together with any new directors whose
election to such Board of Directors or whose nomination for
election
was approved by a vote of a majority of the members of the Board
of
Directors of Borrower, which members comprising such majority are
then
still in office and were either directors at the beginning of
such
period or whose election or nomination for election was previously
so
approved) cease for any reason to constitute a majority of the
Board of
Directors of Borrower.
"CHANGE IN LAW" shall mean (a) the adoption of any law,
treaty, order, rule or regulation after the
date of this Agreement, (b) any
change in any law, treaty, order, 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 Issuing Bank (or for purposes of
Section 2.12(b), by any lending office of
such Lender or by such Lender's or
Issuing Bank's holding company, if any)
with any request, guideline or directive
(whether or not having the force of law) of
any Governmental Authority made or
issued after the date of this
Agreement.
"CHARGES" shall have the meaning assigned to such term in
Section 11.13.
"CLASS," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans
comprising such Borrowing, are
Revolving Loans, Term Loans or Swingline
Loans and, when used in reference to
any Commitment, refers to whether such
Commitment is a Revolving Commitment,
Term Loan Commitment or Swingline
Commitment, in each case, under this Agreement
as originally in effect or pursuant to
Section 11.02(e), of which such Loan,
Borrowing or Commitment shall be a
part.
"CLOSING DATE" shall mean the date of the initial Credit
Extension hereunder.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"CO-DOCUMENTATION AGENTS" shall have the meaning assigned to
such term in the preamble hereto.
"COLLATERAL" shall
mean, collectively, all of the Security
Agreement Collateral, the Mortgaged
Property and all other property of whatever
kind and nature pledged as collateral under
any Security Document.
"COLLATERAL ACCOUNT" shall mean a collateral account or
sub-account in the form of a deposit
account established and maintained by the
Collateral Agent for the benefit of the
Secured Parties, in accordance with the
provisions of Section 9.01.
"COLLATERAL AGENT" shall have the meaning assigned to such
term in the preamble hereto and includes
each other person appointed as the
successor thereto pursuant to Article
X.
"COMMERCIAL CREDIT SUPPORT OBLIGATIONS" shall mean, as to any
person, all obligations of such person for
the reimbursement of any obligor in
respect of bid, performance or surety bonds
obtained in the ordinary course of
business, including guarantees or
obligations of such person with respect to
letters of credit supporting such bid,
performance or surety obligations.
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<PAGE>
"COMMERCIAL LETTER OF CREDIT" shall mean any letter of credit
or similar instrument issued for the
purpose of providing credit support in
connection with the purchase of materials,
goods or services by Borrower or any
of its Subsidiaries in the ordinary course
of their businesses.
"COMMITMENT" shall mean, with respect to any Lender, such
Lender's Revolving Commitment, Term Loan
Commitment or Swingline Commitment and
any Commitment to make Term Loans or
Revolving Loans of a new Class extended by
such Lender as provided in Section
11.02(e).
"COMMITMENT FEE" shall have the meaning assigned to such term
in Section 2.05(a).
"COMPANIES" shall mean Borrower and its Subsidiaries; and
"COMPANY" shall mean any one of them.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a
Financial Officer of Borrower substantially
in the form of Exhibit D.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean that certain
confidential information memorandum dated
as of January 2004.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any
period, the amortization expense of
Borrower and its Subsidiaries for such
period, determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED CURRENT ASSETS" shall mean, as at any date of
determination, the total assets of Borrower
and its Subsidiaries which may
properly be classified as current assets on
a consolidated balance sheet of
Borrower and its Subsidiaries in accordance
with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, as at any date
of determination, the total liabilities of
Borrower and its Subsidiaries which
may properly be classified as current
liabilities (other than the current
portion of any Loans) on a consolidated
balance sheet of Borrower and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any
period, the depreciation expense of
Borrower and its Subsidiaries for such
period, determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated
Net Income for such period, adjusted by (x)
adding thereto, in each case only to
the extent (and in the same proportion)
deducted in determining such
Consolidated Net Income (and with respect
to the portion of Consolidated Net
Income attributable to any Subsidiary of
Borrower only if a corresponding amount
would be permitted at the date of
determination to be distributed to Borrower by
such Subsidiary without prior approval
(that has not been obtained), pursuant to
the terms of its Organizational Documents
and all agreements, instruments,
judgments, decrees, orders, statutes,
rules, regulations and other restrictions
applicable to such Subsidiary or its
equityholders):
(a)
Consolidated Interest Expense for such period,
(b)
Consolidated Amortization Expense for such period,
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<PAGE>
(c)
Consolidated Depreciation Expense for such period,
(d)
Consolidated Tax Expense for such period,
(e) costs and
expenses directly incurred in connection
with the Transactions (not to exceed $17.5 million),
(f) the
aggregate amount of all other non-cash items
reducing Consolidated Net Income (excluding any non-cash charge
that
results in an accrual of a reserve for cash charges in any
future
period) for such period, and
(g) (i) the
amount of non-recurring charges relating to
the implementation of Borrower's new information technology
platform in
an aggregate amount not to exceed $5 million, (ii) for the
fiscal
quarter ending December 31, 2003, the amount of non-recurring
charges
(including, but not limited to, restructuring charges and
charges
relating to plant or facility relocations) to the extent
reducing
Consolidated Net Income in an aggregate amount not to exceed
$15
million for such fiscal quarter and (iii) for the period
commencing
January 1, 2004 and ending March 31, 2005, the amount of
non-recurring
charges (including, but not limited to, restructuring charges
and
charges relating to plant or facility relocations) to the
extent
reducing
Consolidated Net Income in an aggregate amount not to exceed
$15 million for such period, and
(y) subtracting therefrom the aggregate
amount of all non-cash items increasing
Consolidated Net Income (other than the
accrual of revenue or recording of
receivables in the ordinary course of
business) for such period; provided that
for purposes of Borrower's fiscal quarter
ending September 30, 2003,
Consolidated EBITDA of Borrower and its
Subsidiaries shall be $16.6 million.
Other than
for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on
a Pro Forma Basis to give effect to
the Acquisition, any Permitted Acquisition
and any Asset Sales (other than any
dispositions in the ordinary course of
business) consummated at any time on or
after the first day of the Test Period
thereof as if the Acquisition and each
such Permitted Acquisition had been
effected on the first day of such period and
as if each such Asset Sale had been
consummated on the day prior to the first
day of such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for any
Test Period, the ratio of (a) Consolidated
EBITDA for such Test Period to (b)
Consolidated Fixed Charges for such Test
Period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any period, the
sum, without duplication, of
(a)
Consolidated Interest Expense for such period;
(b) the
aggregate amount of Capital Expenditures for such
period;
(c) all cash
payments in respect of income taxes made
during such period (net of any cash refund in respect of income
taxes
actually received during such period);
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<PAGE>
(d) the
scheduled principal amount of all amortization
payments on all Indebtedness (including the principal component of
all
Capital Lease Obligations) of Borrower and its Subsidiaries for
such
period (as determined on the first day of the respective period);
and
(e) the
product of (i) all dividend payments made by
Borrower or any of its Subsidiaries (other than dividend payments
to
Borrower or any of its Subsidiaries) whether in accordance with
Section
6.08 or otherwise multiplied by (ii) a fraction, the numerator of
which
is one and the denominator of which is one minus the then
current
combined federal, state and local statutory tax rate of Borrower
and
its Subsidiaries, expressed as a decimal.
"CONSOLIDATED INDEBTEDNESS" shall mean, as at any date of
determination, the aggregate amount of all
Indebtedness and Aggregate LC
Exposure of Borrower and its Subsidiaries,
determined on a consolidated basis in
accordance with GAAP (except to the extent
that GAAP would otherwise exclude
amounts constituting Aggregate LC Exposure
from Consolidated Indebtedness).
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any
Test Period, the ratio of (x) Consolidated
EBITDA for such Test Period to (y)
Consolidated Interest Expense for such Test
Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
the total consolidated interest expense of
Borrower and its Subsidiaries for
such period determined on a consolidated
basis in accordance with GAAP plus,
without duplication:
(a) imputed
interest on Capital Lease Obligations and
Attributable Indebtedness of Borrower and its Subsidiaries for
such
period;
(b)
commissions, discounts and other fees and charges
owed by Borrower or any of its Subsidiaries with respect to letters
of
credit securing financial obligations, bankers' acceptance
financing
and receivables financings for such period;
(c)
amortization of debt issuance costs, debt discount or
premium and other financing fees and expenses incurred by Borrower
or
any of its Subsidiaries for such period;
(d) cash
contributions to any employee stock ownership
plan or similar trust made by Borrower or any of its Subsidiaries
to
the extent such
contributions are used by such plan or trust to pay
interest or fees to any person (other than Borrower or a Wholly
Owned
Subsidiary) in connection with Indebtedness incurred by such plan
or
trust for such period;
(e) all
interest paid or payable with respect to
discontinued operations of Borrower or any of its Subsidiaries for
such
period,
(f) the
interest portion of any deferred payment
obligations of
Borrower or any of its Subsidiaries for such period;
(g) all
interest on any Indebtedness of Borrower or any
of its Subsidiaries of the type described in clause (f) or (j) of
the
definition of "Indebtedness" for such period;
provided that (a) to the extent directly
related to the Transactions and
incurred on or prior to the Closing Date,
debt issuance costs, debt discount or
premium and other financing fees and
expenses shall be excluded from the
calculation of Consolidated Interest
Expense
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<PAGE>
and (b) Consolidated Interest Expense shall
be calculated after giving effect to
Hedging Agreements (including associated
costs), but excluding unrealized gains
and losses with respect to Hedging
Agreements.
Other than with respect to Borrower's fiscal year ending
December 31, 2004, Consolidated Interest
Expense shall be calculated on a Pro
Forma Basis to give effect to any
Indebtedness incurred, assumed or permanently
repaid or extinguished during the relevant
Test Period in connection with any
Permitted Acquisitions and Asset Sales
(other than any dispositions in the
ordinary course of business) as if such
incurrence, assumption, repayment or
extinguishing had been effected on the
first day of such period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of
Borrower and its Subsidiaries determined on
a consolidated basis in accordance with
GAAP; provided that there shall be
excluded from such net income (to the
extent otherwise included therein),
without duplication:
(a) the net
income (or loss) of any person (other than a
Subsidiary of Borrower) in which any person other than Borrower and
its
Subsidiaries has an ownership interest, except to the extent that
cash
in an amount equal to any such income has actually been received
by
Borrower or (subject to clause (c) below) any of its
Subsidiaries
during such period;
(b) the net
income (or loss) of any Excluded Project
Subsidiary, except to the extent that cash in an amount equal to
any
such income has actually been received by Borrower or (subject
to
clause (c) below) any Subsidiary Guarantor during such period;
(c) the net
income of any Subsidiary of Borrower during
such period to the extent that the declaration or payment of
dividends
or similar distributions by such Subsidiary of that income is
not
permitted by operation of the terms of its Organizational Documents
or
any agreement, instrument, judgment, decree, order, statute,
rule,
regulation or other restriction applicable to that Subsidiary
during
such period, except that Borrower's equity in net loss of any
such
Subsidiary for such period shall be included in determining
Consolidated Net Income;
(d) any gain (or loss),
together with any related
provisions for taxes on any such gain (or the tax effect of any
such
loss), realized during such period by Borrower or any of its
Subsidiaries upon any Asset Sale (other than any dispositions in
the
ordinary course of business) by Borrower or any of its
Subsidiaries;
(e) gains and
losses due solely to fluctuations in
currency values and the related tax effects according to GAAP for
such
period;
(f) earnings
resulting from any reappraisal, revaluation
or write-up of assets;
(g) unrealized
gains and losses with respect to Hedging
Obligations for such period; and
(h) any
extraordinary gain (or extraordinary loss),
together with any related provision for taxes on any such gain (or
the
tax effect of any such loss), recorded or recognized by Borrower or
any
of its Subsidiaries during such period.
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<PAGE>
"CONSOLIDATED NET WORTH" shall mean, as of any date,
consolidated shareholders' equity or net
worth of Borrower and its Subsidiaries,
determined in accordance with GAAP.
"CONSOLIDATED TAX EXPENSE" shall mean, for any period, the tax
expense of Borrower and its Subsidiaries
for such period, determined on a
consolidated basis in accordance with
GAAP.
"CONTESTED COLLATERAL LIEN CONDITIONS" shall mean, with
respect to any Permitted Lien of the type
described in clauses (a), (b), (f) and
(g) of Section 6.02, the following
conditions:
(a) Borrower
shall cause any proceeding instituted
contesting such Lien to stay the sale or forfeiture of any portion
of
the Collateral on account of such Lien;
(b) at the
option and at the request of the
Administrative Agent, to the extent such Lien is in an amount in
excess
of
$250,000, the appropriate Loan Party shall maintain cash reserves
in
an amount sufficient to pay and discharge such Lien and the
Administrative Agent's reasonable estimate of all interest and
penalties related thereto; and
(c) such Lien
shall in all respects be subject and
subordinate in priority to the Lien and security interest created
and
evidenced by the Security Documents, except if and to the extent
that
the law or regulation creating, permitting or authorizing such
Lien
provides that such Lien is or must be superior to the Lien and
security
interest created and evidenced by the Security Documents.
"CONTINGENT OBLIGATION" shall mean, as to any person, any
obligation, agreement, understanding or
arrangement of such person guaranteeing
or intended to guarantee any Indebtedness,
leases, dividends or other
obligations ("PRIMARY OBLIGATIONS") of any
other person (the "PRIMARY OBLIGOR")
in any manner, whether directly or
indirectly, including any obligation of such
person, whether or not contingent, (a) to
purchase any such primary obligation
or any property constituting direct or
indirect security therefor; (b) to
advance or supply funds (i) for the
purchase or payment of any such primary
obligation or (ii) to maintain working
capital or equity capital of the primary
obligor or otherwise to maintain the net
worth or solvency of the primary
obligor; (c) to purchase property,
securities or services primarily for the
purpose of assuring the owner of any such
primary obligation of the ability of
the primary obligor to make payment of such
primary obligation; (d) with respect
to bankers' acceptances, letters of credit
and similar credit arrangements,
until a reimbursement obligation arises
(which reimbursement obligation shall
constitute Indebtedness); or (e) otherwise
to assure or hold harmless the holder
of such primary obligation against loss in
respect thereof; provided, however,
that the term "Contingent Obligation" shall
not include endorsements of
instruments for deposit or collection in
the ordinary course of business or any
product warranties. The amount of any
Contingent Obligation shall be deemed to
be an amount equal to the stated or
determinable amount of the primary
obligation in respect of which such
Contingent Obligation is made (or, if less,
the maximum amount of such primary
obligation for which such person may be
liable, whether singly or jointly, pursuant
to the terms of the instrument
evidencing such Contingent Obligation) or,
if not stated or determinable, the
maximum reasonably anticipated liability in
respect thereof (assuming such
person is required to perform thereunder)
as determined by such person in good
faith.
"CONTROL" shall mean 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 ownership of
voting securities, by contract or
otherwise, and the terms "CONTROLLING" and
"CONTROLLED" shall have meanings
correlative thereto.
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<PAGE>
"CONTROL AGREEMENT" shall have the meaning assigned to such
term in the Security Agreement.
"CREDIT EXTENSION" shall mean, as the context may require, (i)
the making of a Loan by a Lender or (ii)
the issuance of any Letter of Credit,
or the amendment, extension or renewal of
any existing Letter of Credit, by the
Issuing Bank.
"DEBT ISSUANCE" shall mean the incurrence by Borrower or any
of its Subsidiaries of any Indebtedness
after the Closing Date (other than as
permitted by Section 6.01).
"DEBT SERVICE" shall mean, for any period, Cash Interest
Expense for such period plus scheduled
principal amortization of all
Indebtedness for such period.
"DEFAULT" shall mean any event, occurrence or condition which
is, or upon notice, lapse of time or both
would constitute, an Event of Default.
"DISQUALIFIED
CAPITAL STOCK" shall mean any Equity Interest
which, by its terms (or by the terms of any
security into which it is
convertible or for which it is
exchangeable), or upon the happening of any
event, (a) matures (excluding any maturity
as the result of an optional
redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is
redeemable at the option of the
holder thereof, in whole or in part, on or
prior to the first anniversary of the
Final Maturity Date, (b) is convertible
into or exchangeable (unless at the sole
option of the issuer thereof) for (i) debt
securities or (ii) any Equity
Interests referred to in clause (a) above,
in each case at any time on or prior
to the first anniversary of the Final
Maturity Date, or (c) contains any
repurchase obligation which may come into
effect prior to payment in full of all
Obligations.
"DIVIDEND" with respect to any person shall mean that such
person has declared or paid a dividend or
returned any equity capital to the
holders of its Equity Interests or
authorized or made any other distribution,
payment or delivery of property (other than
Qualified Capital Stock of such
person) or cash to the holders of its
Equity Interests as such, or redeemed,
retired, purchased or otherwise acquired,
directly or indirectly, for
consideration any of its Equity Interests
outstanding (or any options or
warrants issued by such person with respect
to its Equity Interests), or set
aside any funds for any of the foregoing
purposes, or shall have permitted any
of its Subsidiaries to purchase or
otherwise acquire for consideration any of
the Equity Interests of such person
outstanding (or any options or warrants
issued by such person with respect to its
Equity Interests). Without limiting
the foregoing, "Dividends" with respect to
any person shall also include all
such payments made or required to be made
by such person with respect to any
stock appreciation rights, plans, equity
incentive or achievement plans or any
similar plans or setting aside of any funds
for the foregoing purposes.
"DOCUMENTATION AGENT" shall have the meaning assigned to such
term in the preamble hereto.
"DOLLARS" or "$" shall mean lawful money of the United States.
"ECOLOCHEM INTERNATIONAL" shall mean Ecolochem International,
Inc., a Delaware corporation and wholly
owned Subsidiary of Borrower.
"EMBARGOED PERSON" shall have the meaning assigned to such
term in Section 6.21.
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<PAGE>
"ENVIRONMENT" shall mean ambient air, surface water and
groundwater (including potable water,
navigable water and wetlands), the land
surface or subsurface strata, natural
resources or as otherwise defined in any
Environmental Law.
"ENVIRONMENTAL CLAIM" shall mean any claim, notice, demand,
order, action, suit, proceeding or other
communication alleging liability for
investigation, remediation, removal,
cleanup, response, corrective action,
damages to natural resources, personal
injury, property damage, fines, penalties
or other costs resulting from, related to
or arising out of (i) the presence,
Release or threatened Release in or into
the Environment of Hazardous Material
at any location or (ii) any violation of
Environmental Law, and shall include
any claim seeking damages, contribution,
indemnification, cost recovery,
compensation or injunctive relief resulting
from, related to or arising out of
the presence, Release or threatened Release
of Hazardous Material or alleged
injury or threat of injury to the
Environment.
"ENVIRONMENTAL LAW" shall mean any and all applicable
treaties, laws, statutes, ordinances,
regulations, rules, decrees, orders,
judgments, consent orders, consent decrees
or other binding requirements, and
the common law, relating to protection of
public health or the Environment, the
Release or threatened Release of Hazardous
Material, natural resources or
natural resource damages, or occupational
safety or health relating to Hazardous
Materials, and any amendments thereof.
"ENVIRONMENTAL PERMIT" shall mean any permit, license,
approval, consent or other authorization
required by or from a Governmental
Authority under Environmental Law.
"EQUIPMENT" shall have the meaning assigned to such term in
the Security Agreement.
"EQUITY FINANCING" shall have the meaning assigned to such
term in the second recital hereto.
"EQUITY INTEREST" shall mean, with respect to any person, any
and all shares, interests, participations
or other equivalents, including
membership interests (however designated,
whether voting or nonvoting), of
equity of such person, including, if such
person is a partnership, partnership
interests (whether general or limited) and
any other interest or participation
that confers on a person the right to
receive a share of the profits and losses
of, or distributions of property of, such
partnership, whether outstanding on
the date hereof or issued after the Closing
Date, but excluding debt securities
convertible or exchangeable into such
equity.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from
time to time.
"ERISA AFFILIATE" shall mean, with respect to any person, any
trade or business (whether or not
incorporated) that, together with such person,
is treated as a single employer under
Section 414(b) or (c) of the Code, or
solely for purposes of Section 302 of ERISA
and Section 412 of the Code, is
treated as a single employer under Section
414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event," as
defined in Section 4043 of ERISA or the
regulations issued thereunder, with
respect to a Plan (other than an event for
which the 30-day notice period is
waived by regulation); (b) the existence
with respect to any Plan of an
"accumulated funding deficiency" (as
defined in Section 412 of the Code or
Section 302 of ERISA), whether or not
waived, the failure to make by its due
date a required installment under Section
412(m) of the Code with
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respect to any Plan or the failure to make
any required contribution to a
Multiemployer Plan; (c) the filing pursuant
to Section 412(d) of the Code or
Section 303(d) of ERISA of an application
for a waiver of the minimum funding
standard with respect to any Plan; (d) the
incurrence by any Company or any of
its ERISA Affiliates of any liability under
Title IV of ERISA with respect to
the termination of any Plan; (e) the
receipt by any Company or any of its ERISA
Affiliates from the PBGC or a plan
administrator of any notice relating to the
intention to terminate any Plan or Plans or
to appoint a trustee to administer
any Plan, or the occurrence of any event or
condition which could reasonably be
expected to constitute grounds under ERISA
for the termination of, or the
appointment of a trustee to administer, any
Plan; (f) the incurrence by any
Company or any of its ERISA Affiliates of
any liability with respect to the
withdrawal from any Plan or Multiemployer
Plan; (g) the receipt by any Company
or its ERISA Affiliates of any notice,
concerning the imposition of Withdrawal
Liability or a determination that a
Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the
meaning of Title IV of ERISA; (h) the
making of any amendment to any Plan which
could result in the imposition of a
lien or the posting of a bond or other
security; (i) the occurrence of a
nonexempt prohibited transaction (within
the meaning of Section 4975 of the Code
or Section 406 of ERISA) which could
reasonably be expected to result in
liability to any Company; and (j) the
receipt by any Company or any of its ERISA
Affiliates of any notice that the Internal
Revenue Service will seek to
disqualify any Plan or employee benefit
plan sponsored or contributed to by any
Company that is intended by such Company or
any such ERISA Affiliate to be
qualified under Section 401(a) of the
Code.
"ESCROW AGREEMENTS" shall mean the Purchase Price Escrow
Agreement and the 338 Escrow Agreement.
"ESCROWED AMOUNTS" shall mean all cash, property or other
assets subject to the Escrow
Agreements.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of
Eurodollar Loans.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"EURODOLLAR REVOLVING BORROWING" shall mean a Borrowing
comprised of Eurodollar Revolving
Loans.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan
bearing interest at a rate determined by
reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article
II.
"EURODOLLAR TERM BORROWING" shall mean a Borrowing comprised
of Eurodollar Term Loans.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing
interest at a rate determined by reference
to the Adjusted LIBOR Rate in
accordance with the provisions of Article
II.
"EVENT OF DEFAULT" shall have the meaning assigned to such
term in Article VIII.
"EXCESS AMOUNT" shall have the meaning assigned to such term
in Section 2.10(g)(ii).
"EXCESS CASH FLOW" shall mean, for any Excess Cash Flow
Period, Consolidated EBITDA for such Excess
Cash Flow Period, minus, without
duplication:
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(a) Debt
Service for such Excess Cash Flow Period;
(b) any
voluntary prepayments of Term Loans and any
permanent voluntary reductions to the Revolving Commitments to
the
extent that an equal amount of the Revolving Loans simultaneously
is
repaid, in each case so long as such amounts are not already
reflected
in Debt Service, during such Excess Cash Flow Period;
(c) Capital
Expenditures during such Excess Cash Flow
Period (excluding Capital Expenditures made in such Excess Cash
Flow
Period where a certificate in the form contemplated by the
following
clause (d) was previously delivered) that are paid in cash;
(d) Capital
Expenditures that Borrower or any of its
Subsidiaries shall, during such Excess Cash Flow Period, become
obligated to make but that are not made during such Excess Cash
Flow
Period; provided that Borrower shall deliver a certificate to
the
Administrative Agent not later than 90 days after the end of
such
Excess Cash Flow Period, signed by a Responsible Officer of
Borrower
and certifying that such Capital Expenditures will be made in
the
following Excess Cash Flow Period;
(e) the
aggregate amount of investments made in cash
during such period in compliance with Sections 6.04(e), (i), (j),
(n),
(o) and (p);
(f)
Taxes of
Borrower and its Subsidiaries that were paid
in cash during such Excess Cash Flow Period or will be paid within
six
months after the end of such Excess Cash Flow Period and for
which
adequate reserves have been established in accordance with
GAAP;
(g) an amount
equal to any increase in Current Assets
minus Current Liabilities from the beginning to the end of such
Excess
Cash Flow Period;
(h) losses
excluded from the calculation of Consolidated
Net Income by operation of clause (c) or (g) of the definition
thereof
that are paid in cash during such Excess Cash Flow Period; and
(i) to the
extent added to determine Consolidated EBITDA,
all items that did not result from a cash payment to Borrower or
any of
its Subsidiaries on a consolidated basis during such Excess Cash
Flow
Period;
provided that any amount deducted pursuant
of any of the foregoing clauses that
will be paid after the close of such Excess
Cash Flow Period shall not be
deducted again in a subsequent Excess Cash
Flow Period; plus, without
duplication:
(i) an amount
equal to any decrease in Current Assets
minus Current Liabilities from the beginning to the end of such
Excess
Cash Flow Period;
(ii)
all proceeds received during such Excess Cash Flow
Period of any Indebtedness to the extent used to finance any
Capital
Expenditure (other than Indebtedness under this Agreement to the
extent
there is no corresponding deduction to Excess Cash Flow above
in
respect of the use of such borrowings);
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(iii) to
the extent any permitted Capital Expenditures
referred to in (d) above do not occur in the Excess Cash Flow
Period
specified in the certificate of Borrower provided pursuant to
(d)
above, such amounts of Capital Expenditures that were not so made
in
the Excess Cash Flow Period specified in such certificate;
(iv)
any return on or in respect of investments received
in cash during such period, which investments were made pursuant
to
Sections 6.04(e), (i), (j), (n), (o) and (p);
(v) income or
gain excluded from the calculation of
Consolidated Net Income by operation of clause (c) or (g) of
the
definition thereof that is realized in cash during such Excess
Cash
Flow Period (except to the extent such gain is subject to
Section
2.10);
(vi)
if deducted in the computation of Consolidated
EBITDA, interest income; and
(vii) to
the extent subtracted in determining Consolidated
EBITDA, all items that did not result from a cash payment by
Borrower
or any of its Subsidiaries on a consolidated basis during such
Excess
Cash Flow
Period.
"EXCESS CASH FLOW PERIOD" shall mean (i) the period taken as
one accounting period from April 1, 2004
and ending on December 31, 2004 and
(ii) each fiscal year of Borrower
thereafter.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"EXCLUDED PROJECT SUBSIDIARY" shall mean, at any time, (a) any
Subsidiary of Borrower listed on Schedule
1.01(a), but only if and for so long
as such Subsidiary is an obligor with
respect to any Existing Non-Recourse
Indebtedness, and (b) each other Subsidiary
of Borrower that is formed for the
sole purpose of financing, owning,
acquiring, developing, constructing,
operating or maintaining certain specified
fixed or capital assets, including
domestic and foreign water purification and
desalination facilities, but only if
and for so long as such Subsidiary is an
obligor with respect to any Additional
Non-Recourse Indebtedness, and, in the case
of (a) and (b) above, only if and to
the extent that the grant of a security
interest in the property or assets of
such Subsidiary or the pledge of the Equity
Interests of such Subsidiary in
favor of the Collateral Agent shall
constitute or result in a breach,
termination or default under the agreement
or instrument governing the
applicable Non-Recourse Indebtedness;
provided that, notwithstanding the
foregoing, at no time shall any Subsidiary
with EBITDA in excess of 5% of
Consolidated EBITDA of Borrower and its
Subsidiaries be an Excluded Project
Subsidiary.
"EXCLUDED TAXES" shall mean, with respect to the
Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any
payment to be made by or on account of any
obligation of Borrower hereunder, (a)
income or franchise taxes imposed on (or
measured by) its net income (or excise,
gross receipts or net worth tax imposed in
lieu of or as part of net income tax)
by the United States or by any State,
territory or possession thereof, 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 taxes described in clause (ii) of
the definition of "Taxes" and (c) in the
case of a Foreign Lender (other than an
assignee pursuant to a request by Borrower
under Section 2.16), any withholding
tax that is imposed on amounts payable to
such Foreign Lender at the time such
Foreign Lender becomes a party to this
Agreement (or designates a new lending
office) or is attributable to such Foreign
Lender's failure to comply with
Section 2.15(e), except to the extent that
such Foreign Lender (or its assignor,
if any) was entitled, at the time of
designation of a new lending office (or
assignment), to receive additional amounts
from Borrower with respect to such
withholding tax pursuant to
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Section 2.15(a) (it being understood and
agreed, for the avoidance of doubt,
that any withholding tax imposed on a
Foreign Lender as a result of a Change in
Law or regulation or interpretation thereof
occurring after the time such
Foreign Lender became a party to this
Agreement shall not be an Excluded Tax).
"EXECUTIVE ORDER" shall have the meaning assigned to such term
in Section 3.22.
"EXECUTIVE ORDERS" shall have the meaning assigned to such
term in Section 6.21.
"EXISTING LIEN" shall have the meaning assigned to such term
in Section 6.02(c).
"EXISTING ISSUING BANK LETTERS OF CREDIT" shall have the
meaning assigned to such term in Section
2.18(m).
"EXISTING NON-RECOURSE INDEBTEDNESS" shall mean any
Non-Recourse Indebtedness listed on
Schedule 1.01(b) and outstanding as of the
Closing Date (and any Permitted Refinancing
Indebtedness in respect thereof).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted average of the rates on overnight
federal funds transactions with
members of the Federal Reserve System of
the United States 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 of the
quotations for the day for such
transactions received by the Administrative
Agent from three federal funds
brokers of recognized standing selected by
it.
"FEE LETTER" shall mean the confidential Bank Facilities Fee
Letter, dated November 18, 2003, among
Borrower, UBS Loan Finance LLC, UBS
Securities LLC, Fleet National Bank, Fleet
Securities, Inc., Bank of America,
N.A., and Banc of America Securities
LLC.
"FEES" shall mean the Commitment Fees, the Administrative
Agent Fees, the LC Participation Fees and
the Fronting Fees.
"FINAL MATURITY DATE" shall mean the latest of the Revolving
Maturity Date and the Term Loan Maturity
Date.
"FINANCIAL OFFICER" of any person shall mean the chief
financial officer, principal accounting
officer, treasurer or controller of such
person.
"FIRREA" shall mean the Federal Institutions Reform, Recovery
and Enforcement Act of 1989.
"FOREIGN LENDER" shall mean any Lender that is not, for United
States federal income tax purposes, (i) a
citizen or resident of the United
States, (ii) a corporation or entity
treated as a corporation created or
organized in or under the laws of the
United States, or any political
subdivision thereof, (iii) an estate whose
income is subject to U.S. federal
income taxation regardless of its source or
(iv) a trust if a court within the
United States is able to exercise primary
supervision over the administration of
such trust and one or more United States
persons have the authority to control
all substantial decisions of such trust, or
if a valid election is in place to
treat the trust as a United States
person.
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<PAGE>
"FOREIGN PLAN" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained
or contributed to by any Company
with respect to employees employed outside
the United States.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary that is organized
under the laws of a jurisdiction other than
the United States or any state
thereof or the District of Columbia.
"FRONTING FEE" shall have the meaning assigned to such term in
Section 2.05(c).
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent
basis.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local
or foreign court, central bank or
governmental agency, authority,
instrumentality or regulatory body or any
subdivision thereof.
"GOVERNMENTAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall
mean any Requirement of Law of any
Governmental Authority requiring notification
of the buyer, lessee, mortgagee, assignee
or other transferee of any Real
Property, facility, establishment or
business, or notification, registration or
filing to or with any Governmental
Authority, in connection with the sale,
lease, mortgage, assignment or other
transfer (including any transfer of
control) of any Real Property, facility,
establishment or business, of the
actual or threatened presence or Release in
or into the Environment, or the use,
disposal or handling of Hazardous Material
on, at, under or near the Real
Property, facility, establishment or
business to be sold, leased, mortgaged,
assigned or transferred.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such term in Section 7.01.
"GUARANTEES" shall mean the guarantees issued pursuant to
Article VII by the Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances; hazardous wastes;
polychlorinated biphenyls ("PCBS") or any
substance or compound containing PCBs;
asbestos or any asbestos-containing
materials in any form or condition; radon
or any other radioactive materials
including any source, special nuclear or
by-product material; petroleum, crude
oil or any fraction thereof; and any other
pollutant or contaminant or
chemicals, wastes, materials, compounds,
constituents or substances, subject to
regulation, or which can give rise to
liability under, any Environmental Laws.
"HEDGING AGREEMENT" shall mean any swap, cap, collar, forward
purchase or similar agreements or
arrangements dealing with interest rates,
currency exchange rates or commodity
prices, either generally or under specific
contingencies.
"HEDGING OBLIGATIONS" shall mean obligations under or with
respect to Hedging Agreements.
"IMMATERIAL SUBSIDIARIES" shall have the meaning assigned to
such term in Section 3.07(d).
"INDEBTEDNESS" of any person shall mean, without duplication,
(a) all obligations of such person for
borrowed money or advances; (b) all
obligations of such person evidenced by
bonds,
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<PAGE>
debentures, notes or similar instruments;
(c) all obligations of such person
upon which interest charges are customarily
paid or accrued; (d) all obligations
of such person under conditional sale or
other title retention agreements
relating to property purchased by such
person; (e) all obligations of such
person issued or assumed as the deferred
purchase price of property or services
(excluding trade accounts payable and
accrued obligations incurred in the
ordinary course of business on normal trade
terms and not overdue by more than
90 days and excluding any amount
constituting purchase price adjustments under
Section 1.04 of the Acquisition Agreement
or escrow adjustments under Section
1.05(f) of the Acquisition Agreement); (f)
all Indebtedness of others secured by
any Lien on property owned or acquired by
such person, whether or not the
obligations secured thereby have been
assumed, but limited to the fair market
value of such property; (g) all Capital
Lease Obligations, Purchase Money
Obligations and synthetic lease obligations
of such person; (h) all Hedging
Obligations to the extent required to be
reflected on a balance sheet of such
person; (i) all Attributable Indebtedness
of such person; (j) all obligations of
such person for the reimbursement of any
obligor in respect of letters of
credit, letters of guaranty, bankers'
acceptances, bid, performance or surety
bonds and similar credit transactions
(including all Commercial Credit Support
Obligations of such person); and (k) all
Contingent Obligations of such person
in respect of Indebtedness or obligations
of others of the kinds referred to in
clauses (a) through (i) above. 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 (other than in the case of general
partner liability) to the extent that
terms of such Indebtedness expressly
provide that such person is not liable
therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INDEMNITEE" shall have the meaning assigned to such term in
Section 11.03(b).
"INFORMATION" shall have the meaning assigned to such term in
Section 11.12.
"INSURANCE POLICIES" shall mean the insurance policies and
coverages required to be maintained by each
Loan Party pursuant to Section 5.04
and all renewals and extensions
thereof.
"INSURANCE REQUIREMENTS" shall mean, collectively, all
provisions of the Insurance Policies, all
requirements of the issuer of any of
the Insurance Policies and all orders,
rules, regulations and any other
requirements of the National Board of Fire
Underwriters (or any other body
exercising similar functions) binding upon
each Loan Party or any use or
condition thereof.
"INTELLECTUAL PROPERTY" shall have the meaning assigned to
such term in the Security Agreement.
"INTERCOMPANY NOTE" shall mean a promissory note,
substantially in the form of Exhibit P.
"INTEREST ELECTION REQUEST" shall mean a request by Borrower
to convert or continue a Revolving
Borrowing or Term Borrowing in accordance
with Section 2.08(b), substantially in the
form of Exhibit E.
"INTEREST PAYMENT DATE" shall mean (a) with respect to any ABR
Loan (including Swingline Loans), the last
Business Day of each March, June,
September and December, (b) with respect to
any Eurodollar Loan, the last day of
the Interest Period applicable to the
Borrowing of which such
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Loan is a part and, in the case of a
Eurodollar Loan with an Interest Period of
more than three months' duration, each day
prior to the last day of such
Interest Period that occurs at intervals of
three months' duration after the
first day of such Interest Period, (c) with
respect to any Revolving Loan or
Swingline Loan, the Revolving Maturity Date
or such earlier date on which the
Revolving Commitments are terminated and
(d) with respect to any Term Loan, the
Term Loan Maturity Date.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Borrowing, the period commencing on the
date of such Borrowing and ending on the
numerically corresponding day in the
calendar month that is one, two, three or
six months thereafter, as Borrower may
elect; provided that (a) 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 (b) any Interest Period
that commences on the last Business Day of
a calendar month (or on a day for
which there is no numerically corresponding
day in the last calendar month of
such Interest Period) shall end on the last
Business Day of the last calendar
month of such Interest Period. For purposes
hereof, the date of a Borrowing
initially shall be the date on which such
Borrowing is made and thereafter shall
be the effective date of the most recent
conversion or continuation of such
Borrowing; provided, however, that an
Interest Period shall be limited to the
extent required under Section 2.03(e).
"INVESTMENTS" shall have the meaning assigned to such term in
Section 6.04.
"IONICS VENTURES UK" shall mean Ionics Ventures Limited, a
company organized under the laws of England
and Wales.
"ISSUING BANK" shall mean, as the context may require, (a)
HSBC Bank USA, with respect to Letters of
Credit issued by it; (b) any other
Lender that may become an Issuing Bank
pursuant to Sections 2.18(j) and (k) with
respect to Letters of Credit issued by such
Lender; or (c) collectively, all of
the foregoing.
"JOINDER AGREEMENT" shall mean a joinder agreement,
substantially in the form of Exhibit F.
"LANDLORD ACCESS AGREEMENT" shall mean a Landlord Access
Agreement, substantially in the form of
Exhibit G, or such other form as may
reasonably be acceptable to the
Administrative Agent.
"LC COMMITMENT" shall mean the commitment of the Issuing Bank
to issue Letters of Credit pursuant to
Section 2.18. The amount of the LC
Commitment shall initially be $60 million
and shall be reduced in accordance
with Section 2.07, but in no event shall
exceed the Revolving Commitments.
"LC DISBURSEMENT" shall mean a payment or disbursement made by
the Issuing Bank pursuant to a Letter of
Credit.
"LC EXPOSURE" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding
Letters of Credit at such time plus
(b) the aggregate drawn amount of
outstanding Letters of Credit at such time
that have not yet ripened into
Reimbursement Obligations plus (c) the aggregate
principal amount of all Reimbursement
Obligations outstanding at such time. The
LC Exposure of any
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Revolving Lender at any time shall mean its
Pro Rata Percentage of the aggregate
LC Exposure at such time.
"LC PARTICIPATION FEE" shall have the meaning assigned to such
term in Section 2.05(c).
"LC REQUEST" shall mean a request by Borrower in accordance
with the terms of Section 2.18(b) and
substantially in the form of Exhibit H, or
such other form as shall be approved by the
Administrative Agent.
"LC SUB-ACCOUNT" shall have the meaning assigned to such term
in Section 9.01(d).
"LEASES" shall mean any and all leases, subleases, tenancies,
options, concession agreements, rental
agreements, occupancy agreements,
franchise agreements, access agreements and
any other agreements (including all
amendments, extensions, replacements,
renewals, modifications and/or guarantees
thereof), whether or not of record and
whether now in existence or hereafter
entered into, affecting the use or
occupancy of all or any portion of any Real
Property.
"LENDER ADDENDUM" shall mean with respect to any Lender on the
Closing Date, a lender addendum in the form
of Exhibit I, to be executed and
delivered by such Lender on the Closing
Date as provided in Section 11.14.
"LENDER AFFILIATE" shall mean with respect to any Lender that
is a fund that invests in bank loans, any
other fund that invests in commercial
loans and is managed or advised by the same
investment advisor as such Lender or
by an Affiliate of such advisor.
"LENDERS" shall mean (a) the financial institutions that have
become a party hereto pursuant to a Lender
Addendum and (b) any financial
institution that has become a party hereto
pursuant to an Assignment and
Acceptance, other than, in each case, any
such financial institution that has
ceased to be a party hereto pursuant to an
Assignment and Acceptance. Unless the
context clearly indicates otherwise, the
term "Lenders" shall include the
Swingline Lender.
"LETTER OF CREDIT" shall mean any (i) Standby Letter of Credit
and (ii) Commercial Letter of Credit, in
each case, issued or to be issued by an
Issuing Bank for the account of Borrower
pursuant to Section 2.18.
"LETTER OF CREDIT EXPIRATION DATE" shall mean the date which
is fifteen days prior to the Revolving
Maturity Date.
"LIBOR RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period therefor,
the rate per annum determined by the
Administrative Agent to be the arithmetic
mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in
dollars with a term comparable to
such Interest Period that appears on the
Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined
below) at approximately 11:00 a.m.,
London, England time, on the second full
Business Day preceding the first day of
such Interest Period; provided, however,
that (i) if no comparable term for an
Interest Period is available, the LIBOR
Rate shall be determined using the
weighted average of the offered rates for
the two terms most nearly
corresponding to such Interest Period and
(ii) if there shall at any time no
longer exist a Telerate British Bankers
Assoc. Interest Settlement Rates Page,
"LIBOR Rate" shall mean, with respect to
each day during each Interest Period
pertaining to Eurodollar Borrowings
comprising part of the same Borrowing, the
rate per annum equal to the rate at which
the Administrative
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Agent is offered deposits in dollars at
approximately 11:00 a.m., London,
England time, two Business Days prior to
the first day of such Interest Period
in the London interbank market for delivery
on the first day of such Interest
Period for the number of days comprised
therein and in an amount comparable to
its portion of the amount of such
Eurodollar Borrowing to be outstanding during
such Interest Period. "TELERATE BRITISH
BANKERS ASSOC. INTEREST SETTLEMENT RATES
PAGE" shall mean the display designated as
Page 3750 on the Telerate System
Incorporated Service (or such other page as
may replace such page on such
service for the purpose of displaying the
rates at which dollar deposits are
offered by leading banks in the London
interbank deposit market).
"LIEN" shall mean, with respect to any property, (a) any
mortgage, deed of trust, lien, pledge,
encumbrance, claim, charge, assignment,
hypothecation, security interest or
encumbrance of any kind or any filing of any
financing statement under the UCC or any
other similar notice of Lien under any
similar notice or recording statute of any
Governmental Authority, including any
easement, right-of-way or other encumbrance
on title to Real Property, in each
of the foregoing cases whether voluntary or
imposed by law, and any agreement to
give any of the foregoing; (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 property; 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" shall mean this Agreement, each Letter of
Credit, the Notes (if any), the Security
Documents, each Hedging Obligation
relating to the Loans entered into with any
counterparty that was an Agent or a
Lender or an Affiliate of an Agent or a
Lender at the time such Hedging
Obligation was entered into and, solely for
purposes of paragraph (e) of Article
VIII hereof, the Fee Letter.
"LOAN PARTIES" shall mean Borrower and each Subsidiary
Guarantor.
"LOANS" shall mean, as the context may require, a Revolving
Loan, a Term Loan or a Swingline Loan (and
shall include any Replacement Term
Loans and any Loans contemplated by Section
11.02(e).
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a material adverse
effect on the business, property, results
of operations, prospects or condition,
financial or otherwise, or material
agreements of Borrower and its Subsidiaries,
taken as a whole; (b) material impairment
of the ability of the Loan Parties to
fully and timely perform any of their
obligations under any Loan Document; (c)
material impairment of the rights of or
benefits or remedies available to the
Lenders or the Collateral Agent under any
Loan Document; or (d) a material
adverse effect on the Collateral or the
Liens in favor of the Collateral Agent
(for its benefit and for the benefit of the
other Secured Parties) on the
Collateral or the priority of such
Liens.
"MATERIAL INDEBTEDNESS" shall mean any Indebtedness (other
than the Loans, Letters of Credit and,
solely with respect to the applicable
Excluded Project Subsidiary, Non-Recourse
Indebtedness) or Hedging Obligations
of Borrower or any of its Subsidiaries in
an aggregate outstanding principal
amount exceeding $5 million. For purposes
of determining Material Indebtedness,
the "principal amount" in respect of any
Hedging Obligations of any Loan Party
at any time shall be the
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maximum aggregate amount (giving effect to
any netting
agreements) that such Loan Party would be
required to pay if the related Hedging
Agreement were terminated at such time.
"MOODY'S" shall mean Moody's Investors Service Inc.
"MORTGAGE" shall mean an agreement, including, but not limited
to, a mortgage, deed of trust or any other
document, creating and evidencing a
Lien on a Mortgaged Property, which (i) in
the case of Real Property owned in
fee, shall be substantially in the form of
Exhibit J-1 or other form reasonably
satisfactory to the Collateral Agent and
(ii) in the case of leased Real
Property, shall be substantially in the
form of Exhibit J-2 or other form
reasonably satisfactory to the Collateral
Agent, in each case, with such
schedules and including such provisions as
shall be necessary to conform such
document to applicable local or foreign law
or as shall be customary under
applicable local or foreign law.
"MORTGAGED PROPERTY" shall mean (a) each Real Property
identified on Schedule 1.01(c) hereto and
(b) each Real Property, if any, which
shall be subject to a Mortgage delivered
after the Closing Date pursuant to
Section 5.11(c).
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within
the meaning of Section 4001(a)(3) or
Section 3(37) of ERISA (a) to which any
Company or any ERISA Affiliate is then
making or accruing an obligation to make
contributions; (b) to which any Company or
any ERISA Affiliate has within the
preceding five plan years made
contributions; or (c) with respect to which any
Company could incur liability.
"NET CASH PROCEEDS" shall mean:
(a) with
respect to any Asset Sale (other than any
issuance or sale of Equity Interests), the cash proceeds received
by
Borrower or any of its Subsidiaries (including cash proceeds
subsequently received (as and when received by Borrower or any of
its
Subsidiaries) in respect of non-cash consideration initially
received)
net of (i) selling expenses (including reasonable brokers' fees
or
commissions, legal, accounting and other professional and
transactional
fees, transfer and similar taxes and Borrower's good faith estimate
of
income taxes paid or payable in connection with such sale);
(ii)
amounts provided as a reserve, in accordance with GAAP, against (x)
any
liabilities under any indemnification obligations associated with
such
Asset Sale or (y) any other liabilities retained by Borrower or any
of
its Subsidiaries
associated with the properties sold in such Asset Sale
(provided that, to the extent and at the time any such amounts
are
released from such reserve, such amounts shall constitute Net
Cash
Proceeds); (iii) Borrower's good faith estimate of payments
required to
be made with respect to unassumed liabilities relating to the
properties sold within 90 days of such Asset Sale (provided that,
to
the extent such cash proceeds are not used to make payments in
respect
of such unassumed liabilities within 90 days of such Asset Sale,
such
cash proceeds shall constitute Net Cash Proceeds); and (iv) the
principal amount, premium or penalty, if any, interest and
other
amounts on
any Indebtedness for borrowed money which is secured by a
Lien on the properties sold in such Asset Sale (so long as such
Lien
was permitted to encumber such properties under the Loan Documents
at
the time of such sale) and which is repaid with such proceeds
(other
than any such Indebtedness assumed by the purchaser of such
properties);
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(b) with
respect to any Debt Issuance or any issuance or
sale of Equity Interests in any Subsidiary of Borrower, the
cash
proceeds thereof, net of customary fees, commissions, costs and
other
expenses incurred in connection therewith; and
(c)
with respect to
any Casualty Event, the cash
insurance proceeds, condemnation awards and other compensation
received
in respect thereof, net of all reasonable costs and expenses
incurred
in connection with the collection of such proceeds, awards or
other
compensation in respect of such Casualty Event.
"NON-GUARANTOR SUBSIDIARY" shall mean each Subsidiary of
Borrower that is not a Subsidiary
Guarantor.
"NON-RECOURSE INDEBTEDNESS" shall mean Indebtedness for
borrowed money, the proceeds of which were
or will be used solely to finance the
acquisition, development, construction,
operation, maintenance, repair or
improvement of fixed or capital assets of
an Excluded Project Subsidiary
(including domestic and foreign water
purification and desalination facilities)
and the obligations of which are secured
solely by such fixed or capital assets
and certain related assets as permitted in
clause (e) below; provided that (a)
such Indebtedness is without recourse to
Borrower or any Subsidiary of Borrower
(other than the applicable Excluded Project
Subsidiary and any applicable
Non-Recourse Subsidiary) or to any property
or assets of Borrower or any other
Subsidiary of Borrower (other than the
applicable Excluded Project Subsidiary
and any applicable Non-Recourse
Subsidiary), (b) neither Borrower nor any other
Subsidiary of Borrower (other than the
applicable Excluded Project Subsidiary
and any applicable Non-Recourse Subsidiary)
provides credit support of any kind
(including any undertaking, agreement or
instrument that would constitute
Indebtedness) or is directly or indirectly
liable as a guarantor or otherwise in
respect of such Indebtedness or in respect
of the business or operations of the
applicable Excluded Project Subsidiary or
any of its subsidiaries (other than
Permitted Non-Recourse Credit Support), (c)
neither Borrower nor any other
Subsidiary of Borrower (or any of their
respective Affiliates) is or would be
deemed (under applicable law) to be the
lender of such Indebtedness, (d) no
default with respect to such Indebtedness
(including any rights that the holders
of such Indebtedness may have to take
enforcement action against a Subsidiary of
Borrower that is not a Loan Party) would
permit any holder of any other
Indebtedness of Borrower or any other Loan
Party (other than Indebtedness
incurred pursuant to Section 6.01(a)) upon
notice, lapse of time or both to
declare a default on such other
Indebtedness or cause the acceleration of such
other Indebtedness, (e) such Indebtedness
shall be secured solely by the
property and assets of the applicable
Excluded Project Subsidiary and any
applicable Non-Recourse Subsidiary and/or
the Equity Interests in the applicable
Excluded Project Subsidiary and any
applicable Non-Recourse Subsidiary (and
shall be secured by no other property or
assets of Borrower or any other
Subsidiary of Borrower) and (f) in the case
of any Additional Non-Recourse
Indebtedness, the lenders in respect
thereof shall have been notified in writing
(with a copy to the Administrative Agent)
of the substance of the limitation set
forth in clause (e) above; provided further
that the limitations set forth in
clauses (a) and (b) above shall not include
(x) agreements of Borrower or any
Subsidiary of Borrower to provide corporate
or management services or operation
and maintenance services to the applicable
Excluded Project Subsidiary or any
applicable Non-Recourse Subsidiary, (y)
obligations of Borrower or any other
Subsidiary of Borrower to make capital
contributions to the applicable Excluded
Project Subsidiary or any applicable
Non-Recourse Subsidiary or (z) agreements
of Borrower or any Subsidiary in respect of
Commercial Credit Support
Obligations in respect of or for the
benefit of the applicable Excluded Project
Subsidiary or any applicable Non-Recourse
Subsidiary, in each case, to the
extent otherwise permitted hereunder.
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"NON-RECOURSE SUBSIDIARY" shall mean (a) as it relates to any
Existing Non-Recourse Indebtedness, any
Subsidiary of Borrower that is also the
direct parent or a direct or indirect
Subsidiary of the Excluded Project
Subsidiary that incurred or issued such
Existing Non-Recourse Indebtedness
(other than any such Existing Non-Recourse
Indebtedness consisting solely of a
guarantee of other Existing Non-Recourse
Indebtedness) and (b) as it relates to
any Additional Non-Recourse Indebtedness,
any Subsidiary of Borrower that is
also the direct parent or a direct or
indirect Subsidiary of the Excluded
Project Subsidiary that incurred or issued
such Additional Non-Recourse
Indebtedness (other than any such
Additional Non-Recourse Indebtedness
consisting solely of a guarantee of other
Additional Non-Recourse Indebtedness),
but, in the case of this clause (b), only
if such Subsidiary was not a
Subsidiary of Borrower as of the Closing
Date.
"NOTES" shall mean any notes evidencing the Term Loans,
Revolving Loans or Swingline Loans issued
pursuant to this Agreement, if any,
substantially in the form of Exhibit K-1,
K-2 or K-3.
"OBLIGATIONS" shall mean (a) obligations of Borrower and the
other Loan Parties from time to time
arising under or in respect of the due and
punctual payment of (i) the principal of
and premium, if any, and interest
(including interest accruing during the
pendency of any bankruptcy, insolvency,
receivership or other similar proceeding,
regardless of whether allowed or
allowable in such proceeding) on the Loans,
when and as due, whether at
maturity, by acceleration, upon one or more
dates set for prepayment or
otherwise, (ii) each payment required to be
made by Borrower and the other Loan
Parties under this Agreement in respect of
any Letter of Credit, when and as
due, including payments in respect of
Reimbursement Obligations, interest
thereon and obligations to provide cash
collateral and (iii) all other monetary
obligations, including fees, costs,
expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or
otherwise (including monetary
obligations incurred during the pendency of
any bankruptcy, insolvency,
receivership or other similar proceeding,
regardless of whether allowed or
allowable in such proceeding), of Borrower
and the other Loan Parties under this
Agreement and the other Loan Documents, (b)
the due and punctual performance of
all covenants, agreements, obligations and
liabilities of Borrower and the other
Loan Parties under or pursuant to this
Agreement and the other Loan Documents,
(c) the due and punctual payment and
performance of all obligations of Borrower
and the other Loan Parties under each
Hedging Agreement relating to the Loans
entered into with any counterparty that was
an Agent or a Lender or an Affiliate
of an Agent or a Lender at the time such
Hedging Agreement was entered into and
(d) the due and punctual payment and
performance of all obligations in respect
of overdrafts and related liabilities owed
to any Lender, any Affiliate of a
Lender, the Administrative Agent or the
Collateral Agent arising from treasury,
depositary and cash management services or
in connection with any automated
clearinghouse transfer of funds.
"OFAC" shall have the meaning assigned to such term in Section
3.22.
"OFFICERS' CERTIFICATE" shall mean a certificate executed by
the chairman of the Board of Directors (if
an officer), the chief executive
officer or the president and one of the
Financial Officers, each in his or her
official (and not individual) capacity of
Borrower.
"ORGANIZATIONAL DOCUMENTS" shall mean, with respect to any
person, (i) in the case of any corporation,
the certificate of incorporation and
by-laws (or similar documents) of such
person, (ii) in the case of any limited
liability company, the certificate of
formation and operating agreement (or
similar documents) of such person, (iii) in
the case of any limited partnership,
the certificate of formation and limited
partnership agreement (or similar
documents) of such person, (iv) in the case
of any general partnership, the
partnership agreement (or similar document)
of such person and (v) in any other
case, the functional equivalent of the
foregoing.
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"OTHER
LIST" shall have the meaning assigned to such term in
Section 6.21.
"OTHER TAXES" shall mean any and all present or future stamp
or documentary taxes or any other excise
(other than excise taxes imposed in
lieu of or as part of net income taxes) or
property taxes, charges or similar
levies (including interest, fines,
penalties and additions to tax) arising from
any payment made or required to be made
under any Loan Document or from the
execution, delivery or enforcement of, or
otherwise with respect to, any Loan
Document.
"PARTICIPANT" shall have the meaning assigned to such term in
Section 11.04(e).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"PERFECTION CERTIFICATE" shall mean a certificate in the form
of Exhibit L-l or any other form approved
by the Collateral Agent, as the same
shall be supplemented from time to time by
a Perfection Certificate Supplement
or otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in the form of Exhibit L-2 or
any other form approved by the
Collateral Agent.
"PERMITTED ACQUISITION" shall mean any transaction or series
of related transactions for the direct or
indirect (a) acquisition of all or
substantially all of the property of any
person, or of any business or division
of any person; (b) acquisition of in excess
of 50% of the Equity Interests of
any person, and otherwise causing such
person to become a Subsidiary of such
person; or (c) merger or consolidation or
any other combination with any person,
if each of the following conditions is
met:
(i) no Default
then exists or would result therefrom;
(ii)
after giving effect to such transaction on a Pro
Forma Basis, (A) Borrower shall be in compliance with all covenants
set
forth in Section 6.10 as of the most recent Test Period (assuming,
for
purposes of Section 6.10, that such transaction, and all other
Permitted Acquisitions consummated since the first day of the
relevant
Test Period ending on or prior to the date of such transaction,
had
occurred on the first day of such relevant Test Period), and (B)
unless
expressly approved by the Administrative Agent, the person or
business
to be acquired shall have generated positive cash flow for the
Test
Period most recently ended prior to the date of consummation of
such
acquisition;
(iii) no
Company shall, in connection with any such
transaction, assume or remain liable with respect to any
Indebtedness
or other liability (including any material tax or ERISA liability)
of
the related seller or the business, person or properties
acquired,
except (A) to the extent permitted under Section 6.01 and (B)
obligations not constituting Indebtedness incurred in the
ordinary
course of business and necessary or desirable to the continued
operation of the underlying properties, and any other such
liabilities
or obligations not permitted to be assumed or otherwise supported
by
any Company hereunder shall be paid in full or released as to
the
business, persons or properties being so acquired on or before
the
consummation of such acquisition;
(iv)
the person or business to be acquired shall be, or
shall be engaged in, a business of the type that Borrower and
the
Subsidiaries are permitted to be engaged in under Section 6.15
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and the property acquired in connection with any such transaction
shall
be made subject to the
Lien of the Security Documents in a manner
reasonably satisfactory to the Collateral Agent and shall be free
and
clear of any Liens, other than (with respect to such property that
does
not consist of Equity Interests in any Subsidiary Guarantor)
Permitted
Liens;
(v) the Board
of Directors of the person to be acquired
shall not have indicated publicly its opposition to the
consummation of
such acquisition unless such opposition has been publicly
withdrawn;
(vi)
all transactions in connection therewith shall be
consummated in accordance with all applicable laws of all
applicable
Governmental Authorities;
(vii) with
respect to any transaction involving Acquisition
Consideration of an amount equal to or greater than $15 million
(except
to the extent that such Acquisition Consideration consists solely
of
the capital stock of Borrower or any of its Subsidiaries and,
after
giving effect to such transaction on a Pro Forma Basis the Total
Funded
Debt Leverage Ratio of Borrower and its Subsidiaries is less than
or
equal to 2.00 to 1.00 for the most recently ended Test Period),
unless
the Administrative Agent shall otherwise agree, at least 5
Business
Days prior to the date of consummation of the proposed
transaction
Borrower shall have provided the Administrative Agent and the
Lenders
with (A) audited financial statements for the last three fiscal
years
of the person or business to be acquired and unaudited
financial
statements thereof for the most recent interim period which are
available, (B) reasonably detailed projections for the succeeding
five
years pertaining to the person or business to be acquired and
updated
projections for Borrower after giving effect to such transaction,
(C) a
reasonably detailed description of all material information
relating
thereto and copies of all material documentation pertaining to
such
transaction, and (D) all such other information and data relating
to
such transaction or the person or business to be acquired as may
be
reasonably requested by the Administrative Agent or the
Required
Lenders;
(viii) at least
5 Business Days prior to the date of
consummation of the proposed transaction, Borrower shall have
delivered
to the Agents and the Lenders an Officers' Certificate certifying
that
(A) such transaction complies with this definition (which shall
have
attached thereto reasonably detailed backup data and
calculations
showing such compliance), and (B) such transaction could not
reasonably
be expected to result in a Material Adverse Effect; and
(ix)
the Acquisition Consideration for such acquisition
shall not exceed $15 million, and the aggregate amount of the
Acquisition Consideration for all Permitted Acquisitions since
the
Closing Date shall not exceed $40 million (or, on and after the
date on
which the Total Funded Debt Leverage Ratio is less than or equal
to
1.75 to 1.00, $60 million) and any Equity Interests constituting
all or
a portion of such Acquisition Consideration shall not have a
cash
dividend requirement on or prior to the Final Maturing Date.
"PERMITTED COLLATERAL LIENS" means (i) Contested Liens (as
defined in the Security Agreement) and (ii)
the Liens described in clauses (a),
(b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), (l), (m), (n), (o) and (q) of
the definition of "Permitted Liens".
"PERMITTED LIENS" shall have the meaning assigned to such term
in Section 6.02.
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"PERMITTED NON-RECOURSE CREDIT SUPPORT" shall mean, as it
relates to any Non-Recourse Indebtedness,
(a) any credit support or liability
consisting of reimbursement obligations in
respect of Letters of Credit issued
under, and subject to the terms of, Section
2.18 to support obligations of the
applicable Subsidiary of Borrower that is
an obligor with respect to such
Non-Recourse Indebtedness and (b) any
investments in the applicable Subsidiary
of Borrower under such Non-Recourse
Indebtedness permitted in accordance with
Section 6.04(b).
"PERMITTED REFINANCING INDEBTEDNESS" shall mean Indebtedness
issued or incurred (including by means of
the extension or renewal of existing
Indebtedness) to refinance, refund, extend,
renew or replace existing
Indebtedness (such existing Indebtedness
being referred to below as the
"REFINANCED INDEBTEDNESS"); provided that
(a) the principal amount of any such
Permitted Refinancing Indebtedness shall
not be greater than the principal
amount of the applicable refinanced
indebtedness plus the amount of any premiums
or penalties and accrued and unpaid
interest paid thereon and reasonable fees
and expenses, in each case associated with
such refinancing, refunding,
extension, renewal or replacement, (b) any
such Permitted Refinancing
Indebtedness shall have a final maturity
that is no sooner, and a weighted
average life to maturity that is no
shorter, than the applicable refinanced
indebtedness, (c) if the applicable
refinanced indebtedness or any guarantees
thereof are subordinated to rights of the
Secured Parties under the Loan
Documents, any such Permitted Refinancing
Indebtedness and any guarantees
thereof shall remain subordinated to the
rights of the Secured Parties under the
Loan Documents on terms no less favorable
to the Secured Parties, (d) the
obligors in respect of such refinanced
indebtedness immediately prior to such
refinancing, refunding, extending, renewing
or replacing and any additional
person (other than a Loan Party) shall be
the only obligors in respect of any
such Permitted Refinancing Indebtedness,
(e) any such Permitted Refinancing
Indebtedness shall contain covenants and
events of default and be benefited by
guarantees, if any, which, taken as a
whole, are determined in good faith by a
Financial Officer of Borrower to be no less
favorable to Borrower, the
applicable Subsidiary or the Lenders in any
material respect than the covenants
and events of default or guarantees, if
any, in respect of the applicable
refinanced indebtedness and (f) if the
applicable refinanced indebtedness is
Non-Recourse Indebtedness, any such
Permitted Refinancing Indebtedness shall be
Non-Recourse Indebtedness.
"PERSON" shall mean any natural person, corporation, business
trust, joint venture, association, company,
limited liability company,
partnership or government, or any agency or
political subdivision thereof, in
any case, whether acting in a personal,
fiduciary or other capacity.
"PLAN" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of
ERISA which is maintained or
contributed to by any Company or its ERISA
Affiliate or with respect to which
any Company could incur liability
(including under Section 4069 of ERISA).
"PREFERRED STOCK" shall mean, with respect to any person, any
and all preferred or preference Equity
Interests (however designated) of such
person whether now outstanding or issued
after the Closing Date.
"PREFERRED STOCK ISSUANCE" shall mean the issuance or sale by
Borrower or any of its Subsidiaries of any
Preferred Stock after the Closing
Date (other than as permitted by Section
6.01).
"PREMISES" shall have the meaning assigned thereto in the
applicable Mortgage.
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"PRO FORMA BASIS" shall mean on a basis in accordance with
GAAP and Regulation S-X and otherwise
reasonably satisfactory to the
Administrative Agent.
"PROJECT SUBSIDIARY" shall mean, at any time, each Subsidiary
of Borrower that is formed for the sole
purpose of financing, owning, acquiring,
developing, constructing, operating or
maintaining certain specified fixed or
capital assets, including domestic and
foreign water purification and
desalination facilities, but only for so
long as such Subsidiary is engaged in
the financing, owning, acquiring,
developing, constructing, operating or
maintaining of such fixed or capital
assets.
"PRO RATA PERCENTAGE" of any Revolving Lender at any time
shall mean the percentage of the total
Revolving Commitments of all Revolving
Lenders represented by such Lender's
Revolving Commitment.
"PROPERTY" shall mean any right, title or interest in or to
property or assets of any kind whatsoever,
whether real, personal or mixed and
whether tangible or intangible and
including Equity Interests or other ownership
interests of any person and whether now in
existence or owned or hereafter
entered into or acquired, including all
Real Property.
"PURCHASE MONEY OBLIGATION" shall mean, for any person, the
obligations of such person in respect of
Indebtedness (including Capital Lease
Obligations) incurred for the purpose of
financing all or any part of the
purchase price of any property (including
Equity Interests of any person) or the
cost of installation, construction or
improvement of any property and any
refinancing thereof; provided, however,
that (i) such Indebtedness is incurred
within 90 days after such acquisition of
such property by such person and (ii)
the amount of such Indebtedness does not
exceed 100% of the cost of such
acquisition, installation, construction or
improvement, as the case may be.
"PURCHASE PRICE ESCROW AGREEMENT" shall mean that certain
escrow agreement to be entered into on the
Closing Date in accordance with
Section 1.03(a)(vi) of the Acquisition
Agreement, pursuant to which a portion of
the purchase price in respect of the
Acquisition shall be deposited into escrow
to secure certain obligations of the
Sellers under the Acquisition Agreement.
"QUALIFIED CAPITAL STOCK" of any person shall mean any Equity
Interests of such person that are not
Disqualified Capital Stock.
"REAL PROPERTY" shall mean, collectively, all right, title and
interest (including any leasehold estate)
in and to any and all parcels of or
interests in real property owned, leased or
operated by any person, whether by
lease, license or other means, together
with, in each case, all easements,
hereditaments and appurtenances relating
thereto, all improvements and
appurtenant fixtures and equipment, all
general intangibles and contract rights
and other property and rights incidental to
the ownership, lease or operation
thereof.
"REFINANCED TERM LOANS" shall have the meaning assigned to
such term in Section 11.02(d).
"REFINANCING" shall mean the repayment in full and the
termination of any commitment to make
extensions of credit under all of the
outstanding indebtedness of Borrower or any
of its Subsidiaries listed on
Schedule 1.01(d).
"REGISTER" shall have the meaning assigned to such term in
Section 11.04(c).
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"REGULATION D"
shall mean Regulation D of the Board as from
time to time in effect and all official
rulings and interpretations thereunder
or thereof.
"REGULATION S-X" shall mean Regulation S-X promulgated under
the Securities Act.
"REGULATION T" shall mean Regulation T of the Board as from
time to time in effect and all official
rulings and interpretations thereunder
or thereof.
"REGULATION U" shall mean Regulation U of the Board as from
time to time in effect and all official
rulings and interpretations thereunder
or thereof.
"REGULATION X" shall mean Regulation X of the Board as from
time to time in effect and all official
rulings and interpretations thereunder
or thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean Borrower's obligations
under Section 2.18(e) to reimburse LC
Disbursements.
"RELEASE" shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging,
injecting, escaping, leaching,
dumping, disposing, depositing, dispersing,
emanating or migrating of any
Hazardous Material in, into, onto or
through the Environment.
"RENEWED RIGHTS AGREEMENT" shall mean the Renewed Rights
Agreement, dated as of August 19, 1997 (as
amended), between Ionics,
Incorporated and BankBoston, N.A., as
rights agent.
"REPLACEMENT TERM LOANS" shall have the meaning assigned to
such term in Section 11.02(d).
"REQUIRED LENDERS" shall mean, at any time, Lenders having
Loans, LC Exposure and unused Revolving
Commitments and Term Loan Commitments
representing more than 50% of the sum of
all Loans outstanding, LC Exposure and
unused Revolving Commitments and Term Loan
Commitments at such time.
"REQUIREMENTS OF LAW" shall mean, collectively, any and all
requirements of any Governmental Authority
including any and all laws,
ordinances, rules, regulations or similar
statutes or case law and including all
applicable environmental laws and
regulations.
"RESPONSE" shall mean (a) "response" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and
(b) all other actions required by any
Governmental Authority or voluntarily
undertaken to (i) clean up, remove, treat,
abate or in any other way address any
Hazardous Material in the environment;
(ii) prevent the Release or threat of
Release, or minimize the further Release,
of any Hazardous Material; or (iii) perform
studies and investigations in
connection with, or as a precondition to,
clause (i) or (ii) above.
"RESPONSIBLE OFFICER" of any person shall mean any executive
officer or Financial Officer of such person
and any other officer or similar
official thereof with responsibility for
the administration of the obligations
of such person in respect of this
Agreement.
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"REVOLVING AVAILABILITY PERIOD" shall mean the period from and
including the Closing Date to but excluding
the earlier of (i) the Business Day
preceding the Revolving Maturity Date and
(ii) the date of termination of all of
the Revolving Commitments.
"REVOLVING BORROWING" shall mean a Borrowing comprised of
Revolving Loans.
"REVOLVING COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such
Lender to make revolving extensions of
credit hereunder up to the amount set forth
on Schedule I to the Lender Addendum
executed and delivered by such Lender or by
an amendment to this Agreement
pursuant to Section 11.02(e), or in the
Assignment and Acceptance pursuant to
which such Lender assumed its Revolving
Commitment, as applicable, as the same
may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to
assignments by or to such Lender
pursuant to Section 11.04. The aggregate
amount of the Lenders' Revolving
Commitments on the Closing Date is $80
million, $60 million of which shall be
available solely for the issuance of
Letters of Credit hereunder and the
remaining $20 million of which shall be
available solely for the making of
Revolving Loans.
"REVOLVING EXPOSURE" shall mean, with respect to any Lender at
any time, the aggregate principal amount at
such time of all outstanding
Revolving Loans of such Lender, plus the
aggregate amount at such time of such
Lender's LC Exposure, plus the aggregate
amount at such time of such Lender's
Swingline Exposure.
"REVOLVING LENDER" shall mean a Lender with a Revolving
Commitment.
"REVOLVING LOAN" shall mean a Loan made by the Lenders to
Borrower pursuant to Section 2.01(b). Each
Revolving Loan shall either be an ABR
Revolving Loan or a Eurodollar Revolving
Loan.
"REVOLVING LOAN COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such
Lender to make Revolving Loans under and
as a part of such Lender's Revolving
Commitment, which amount shall not exceed
such Lender's Pro Rata Percentage of the
Aggregate Revolving Loan Commitments.
"REVOLVING MATURITY DATE" shall mean the date which is five
years after the Closing Date or, if such
date is not a Business Day, the first
Business Day thereafter.
"S&P" shall mean Standard & Poor's Rating Service.
"SALE AND LEASEBACK TRANSACTION" has the meaning assigned to
such term in Section 6.03.
"SARBANES-OXLEY ACT" shall mean the United States
Sarbanes-Oxley Act of 2002 and all rules
and regulations promulgated thereunder.
"SDN LIST" shall have the meaning assigned to such term in
Section 6.21.
"SECURED PARTIES" shall mean, collectively, the Administrative
Agent, the Collateral Agent, each other
Agent, the Lenders, the Issuing Bank and
each party to a Hedging Agreement relating
to the Loans if at the date of
entering into such Hedging Agreement such
person was an Agent or a Lender or an
Affiliate of an Agent or a
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Lender and such person executes and
delivers to the Administrative Agent a
letter agreement in form and substance
reasonably acceptable to the
Administrative Agent pursuant to which such
person (i) appoints the Collateral
Agent as its agent under the applicable
Loan Documents and (ii) agrees to be
bound by the provisions of Sections 11.03
and 11.09.
"SECURITIES ACT" shall mean the Securities Act of 1933.
"SECURITY AGREEMENT" shall mean a Security Agreement
substantially in the form of Exhibit M
among the Loan Parties and Collateral
Agent for the benefit of the Secured
Parties.
"SECURITIES COLLATERAL" shall have the meaning assigned to
such term in the Security Agreement.
"SECURITY AGREEMENT COLLATERAL" shall mean all property
pledged or granted as collateral pursuant
to the Security Agreement on the
Closing Date or thereafter pursuant to
Section 5.11.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages, each account control agreement
and each other security document or
pledge agreement delivered in accordance
with applicable local or foreign law to
grant a valid, perfected security interest
in any property as collateral for the
Obligations, and all UCC or other financing
statements or instruments of
perfection required by this Agreement, the
Security Agreement, any Mortgage or
any other such security document or pledge
agreement to be filed with respect to
the security interests in property and
fixtures created pursuant to the Security
Agreement or any Mortgage and any other
document or instrument utilized to
pledge as collateral for the Obligations
any property.
"SELLER" and "SELLERS" shall have the meaning assigned to such
term in the first recital hereto.
"STANDBY LETTER OF CREDIT" shall mean any standby letter of
credit or similar instrument issued for the
purpose of supporting (a) workers'
compensation liabilities of Borrower or any
of its Subsidiaries, (b) the
obligations of third-party insurers of
Borrower or any of its Subsidiaries
arising by virtue of the laws of any
jurisdiction requiring third-party insurers
to obtain such letters of credit, (c)
performance, payment, deposit or surety
obligations of Borrower or any of its
Subsidiaries if required by law or
governmental rule or regulation or in
accordance with custom and practice in the
industry or (d) Indebtedness of Borrower or
any of its Subsidiaries permitted to
be incurred under Section 6.01.
"STATUTORY RESERVES" shall mean for any Interest Period for
any Eurodollar Borrowing, the average
maximum rate at which reserves (including
any marginal, supplemental or emergency
reserves) are required to be maintained
during such Interest Period under
Regulation D by member banks of the United
States Federal Reserve System in New York
City with deposits exceeding one
billion dollars against "Eurodollar
liabilities" (as such term is used in
Regulation D). Eurodollar Borrowings shall
be deemed to constitute Eurodollar
liabilities and to be subject to such
reserve requirements without benefit of or
credit for proration, exceptions or offsets
which may be available from time to
time to any Lender under Regulation D.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of
Borrower or any Guarantor that is by its
terms subordinated in right of payment
to the Obligations in a manner reasonably
satisfactory to the Administrative
Agent.
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"SUBSIDIARY" shall mean, with respect to any person (the
"PARENT") at any date, (i) any person 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, (ii) any other corporation,
limited liability company, association
or other business entity of which
securities or other ownership interests
representing more than 50% of the voting
power of all Equity Interests entitled
(without regard to the occurrence of any
contingency) to vote in the election of
the Board of Directors thereof are, as of
such date, owned, controlled or held
by the parent and/or one or more
subsidiaries of the parent, (iii) any
partnership (a) the sole general partner or
the managing general partner of
which is the parent and/or one or more
subsidiaries of the parent or (b) the
only general partners of which are the
parent and/or one or more subsidiaries of
the parent and (iv) any other person that
is otherwise Controlled by the parent
and/or one or more subsidiaries of the
parent. Unless the context requires
otherwise, "Subsidiary" refers to a
Subsidiary of Borrower.
"SUBSIDIARY GUARANTOR" shall mean each Subsidiary listed on
Schedule 1.01(e), and each other Subsidiary
that is or becomes a party to this
Agreement pursuant to Section 5.11.
"SUCCESSFUL SYNDICATION" shall mean a "successful
syndication", under and as determined in
accordance with the Fee Letter.
"SUPERMAJORITY LENDERS" shall mean at any time, Lenders having
Loans, LC Exposure and unused Revolving
Commitments and Term Loan Commitments
representing at least 66 2/3% of the sum of
all Loans outstanding, LC Exposure
and unused Revolving Commitments and Term
Loan Commitments at such time.
"SURVEY" shall mean a survey of any Mortgaged Property (and
all improvements thereon) which is (a) (i)
prepared by a surveyor or engineer
licensed to perform surveys in the state
where such Mortgaged Property is
located, (ii) dated (or redated) not
earlier than six months prior to the date
of delivery thereof unless there shall have
occurred within six months prior to
such date of delivery any exterior
construction on the site of such Mortgaged
Property, in which event such survey shall
be dated (or redated) after the
completion of such construction or if such
construction shall not have been
completed as of such date of delivery, not
earlier than 20 days prior to such
date of delivery, (iii) certified by the
surveyor (in a manner reasonably
acceptable to the Administrative Agent) to
the Administrative Agent, the
Collateral Agent and the Title Company,
(iv) complying in all respects with the
minimum detail requirements of the American
Land Title Association as such
requirements are in effect on the date of
preparation of such survey, (v)
containing such Table A matters as may be
reasonably required by the Collateral
Agent and (vi) sufficient for the Title
Company to remove all standard survey
exceptions from the title insurance policy
(or commitment) relating to such
Mortgaged Property and issue the
endorsements of the type required by Section
4.01(p)(iii) or (b) otherwise reasonably
acceptable to the Collateral Agent.
"SWINGLINE COMMITMENT" shall mean the commitment of the
Swingline Lender to make loans pursuant to
Section 2.17, as the same may be
reduced from time to time pursuant to
Section 2.07 or Section 2.17. The amount
of the Swingline Commitment shall initially
be $7.5 million, but in no event
shall exceed the Revolving Commitment.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate
principal amount at such time of all
outstanding Swingline Loans. The Swingline
Exposure of any Revolving Lender at any
time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such
time.
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"SWINGLINE LENDER" shall have the meaning assigned to such
term in the preamble hereto.
"SWINGLINE LOAN" shall mean any loan made by the Swingline
Lender pursuant to Section 2.17.
"SYNDICATION AGENTS" shall have the meaning assigned to such
term in the preamble hereto.
"TAX RETURN" shall mean all returns, statements, filings,
attachments and other documents or
certifications required to be filed in
respect of Taxes.
"TAXES" shall mean (i) any and all present or future taxes,
duties, levies, imposts, assessments,
deductions, withholdings or other similar
charges imposed by any Governmental
Authority, whether computed on a separate,
consolidated, unitary, combined or other
basis and any and all liabilities
(including interest, fines, penalties or
additions to tax) with respect to the
foregoing, and (ii) any transferee,
successor, joint and several, contractual or
other liability (including liability
pursuant to Treasury Regulation Section
1.1502-6 (or any similar provision of
state, local or non-U.S. law)) in respect
of any item described in clause (i).
"TERM BORROWING" shall mean a Borrowing comprised of Term
Loans.
"TERM LOAN COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such
Lender to make a Term Loan hereunder on
the Closing Date in the amount set forth on
Schedule I to the Lender Addendum
executed and delivered by such Lender. The
aggregate amount of the Lenders' Term
Loan Commitments is $175 million.
"TERM LOAN LENDER" shall mean a Lender with a Term Loan
Commitment or an outstanding Term Loan.
"TERM LOAN MATURITY DATE" shall mean the date which is seven
years after the Closing Date or, if such
date is not a Business Day, the first
Business Day thereafter.
"TERM LOAN REPAYMENT DATE" shall have the meaning assigned to
such term in Section 2.09(a).
"TERM LOANS" shall mean the term loans made by the Lenders to
Borrower pursuant to Section 2.01(a) or by
an amendment to this Agreement
pursuant to Section 11.02(e). Each Term
Loan shall be either an ABR Term Loan or
a Eurodollar Term Loan.
"TEST PERIOD" shall mean, at any time, the four consecutive
fiscal quarters of Borrower then last ended
(in each case taken as one
accounting period).
"TITLE COMPANY" shall mean LandAmerica Financial Group and the
following operating divisions thereof:
Commonwealth Land Title Insurance
Company, Lawyers Title Insurance Company,
Transnational Title Insurance Company
or any other title insurance company as
shall be retained by Borrower and
reasonably acceptable to the Administrative
Agent.
"TITLE POLICY" shall have the meaning assigned to such term in
Section 4.01(p)(iii).
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"TOTAL FUNDED DEBT LEVERAGE RATIO" shall mean, at any date of
determination, the ratio of the aggregate
amount of all Indebtedness of Borrower
and its Subsidiaries (as determined on a
consolidated basis in accordance with
GAAP) on such date to Consolidated EBITDA
for the Test Period then most recently
ended.
"TOTAL LEVERAGE RATIO" shall mean, at any date of
determination, the ratio of Consolidated
Indebtedness (exclusive of Non-Recourse
Indebtedness) on such date to Consolidated
EBITDA for the Test Period then most
recently ended.
"TRANSACTION DOCUMENTS" shall mean the Acquisition Documents,
the Loan Documents and the other documents
relating to the Transactions.
"TRANSACTIONS" shall mean, collectively, the transactions to
occur on or prior to the Closing Date
pursuant to the Transaction Documents,
including (a) the consummation of the
Acquisition; (b) the execution, delivery
and performance of the Loan Documents and
the initial borrowings hereunder; (c)
the Equity Financing; (d) the Refinancing
and (e) the payment of all fees and
expenses to be paid on or prior to the
Closing Date and owing in connection with
the foregoing.
"TRANSFERRED GUARANTOR" shall have the meaning assigned to
such term in Section 7.09.
"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 LIBOR Rate or the
Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in any applicable state or
jurisdiction.
"UK SUBSIDIARY REORGANIZATION" shall mean a transaction in
which Ecolochem International, in
connection with the Transactions, transfers
all or substantially all of its assets to
Ionics Ventures UK (or a wholly owned
Subsidiary of Ionics Ventures UK formed for
such purpose) for consideration
consisting of a note receivable in an
amount equal to approximately $52 million
and common stock of Ionics Ventures UK (or
such wholly owned Subsidiary) and
certain other transactions intended to
facilitate the foregoing; provided that
(i) such transactions shall be consummated
on or before March 31, 2004, (ii)
Borrower shall have received an opinion of
a nationally recognized accounting
firm or law firm to the effect that none of
the Loan Parties should recognize a
material amount of taxable income for
United States federal income tax purposes
solely as a result of such transactions,
(iii) after giving effect to such
transactions, any Indebtedness arising in
connection with such transaction shall
be subordinated to the Secured Obligations
in accordance with the terms and
conditions of the Intercompany Note and
Section 7.04(d) and (iv) such
transactions shall be on terms and
conditions reasonably satisfactory to the
Administrative Agent.
"UNITED STATES" shall mean the United States of America.
"VOTING STOCK" shall mean, with respect to any person, any
class or classes of Equity Interests
pursuant to which the holders thereof have
the general voting power under ordinary
circumstances to elect at least a
majority of the Board of Directors of such
person.
"WHOLLY OWNED SUBSIDIARY" shall mean, as to any person, (a)
any corporation 100% of whose capital stock
(other than directors' qualifying
shares) is at the time owned by such person
and/or
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one or more Wholly Owned Subsidiaries of
such person and (b) any partnership,
association, joint venture, limited
liability company or other entity in which
such person and/or one or more Wholly Owned
Subsidiaries of such person have a
100% equity interest at such time.
"WITHDRAWAL LIABILITY" shall mean 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.
"338 ESCROW AGREEMENT" shall mean that certain escrow
agreement to be entered into on the Closing
Date in accordance with Section
1.05(f) of the Acquisition Agreement,
pursuant to which Borrower shall deposit
certain funds into escrow to secure its
obligations to the Sellers under Section
1.05 of the Acquisition Agreement.
SECTION 1.02
CLASSIFICATION OF LOANS AND BORROWINGS.
For purposes of this Agreement, Loans may
be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type
(e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving
Loan"). Borrowings also may be
classified and referred to by Class (e.g.,
a "Revolving Borrowing," "Borrowing
of Term Loans") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03 TERMS
GENERALLY. The definitions of
terms herein shall apply equally to the
singular and plural forms of the terms
defined. Whenever the context may require,
any pronoun shall include the
corresponding masculine, feminine and
neuter forms. The words "include,"
"includes" and "including" shall be deemed
to be followed by the phrase "without
limitation". The word "will" shall be
construed to have the same meaning and
effect as the word "shall." Unless the
context requires otherwise (a) any
definition of or reference to any Loan
Document, 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 and
(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, unless otherwise
indicated.
SECTION 1.04 ACCOUNTING
TERMS; GAAP. Except as
otherwise expressly provided herein, all
financial statements to be delivered
pursuant to this Agreement shall be
prepared in accordance with GAAP as in
effect from time to time and all terms of
an accounting or financial nature
shall be construed and interpreted in
accordance with GAAP, as in effect on the
date hereof unless otherwise agreed to by
Borrower and the Required Lenders.
SECTION 1.05 RESOLUTION
OF DRAFTING AMBIGUITIES. Each
Loan Party acknowledges and agrees that it
was represented by counsel in
connection with the execution and delivery
of the Loan Documents to which it is
a party, that it and its counsel reviewed
and participated in the preparation
and negotiation hereof and thereof and that
any rule of construction to the
effect that ambiguities are to be resolved
against the drafting party shall not
be employed in the interpretation hereof or
thereof.
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ARTICLE II
THE CREDITS
SECTION 2.01
COMMITMENTS. Subject to the terms and
conditions and relying upon the
representations and warranties herein set forth,
each Lender agrees, severally and not
jointly:
(a) (i) to
make a Term Loan to Borrower on the Closing
Date in the principal amount not to exceed its Term Loan
Commitment;
and
(b) to make
Revolving Loans to Borrower, at any time and
from time to time after the Closing Date until the earlier of
the
Revolving Maturity Date and the termination of the entire amount of
the
Revolving Commitment of such Lender in accordance with the
terms
hereof, in an aggregate principal amount at any time outstanding
that
will not result in (a) such Lender's Revolving Exposure exceeding
such
Lender's Revolving Commitment or (b) such Lender's outstanding
Revolving Loans and Swingline Exposure exceeding such Lender's
Revolving Loan Commitment.
Amounts paid or prepaid in respect of Term Loans may not be
reborrowed. Within the limits set forth in
clause (b) above and subject to the
terms, conditions and limitations set forth
herein, Borrower may borrow, pay or
prepay and reborrow Revolving Loans.
SECTION 2.02 LOANS. (a)
Each Loan (other than
Swingline Loans) shall be made as part of a
Borrowing consisting of Loans made
by the Lenders ratably in accordance with
their applicable Commitments; provided
that the failure of any Lender to make any
Loan shall not in itself relieve any
other Lender of its obligation to lend
hereunder (it being understood, however,
that no Lender shall be responsible for the
failure of any other Lender to make
any Loan required to be made by such other
Lender). Except for Loans deemed made
pursuant to Section 2.18(e)(ii), Loans
comprising any Borrowing shall be in an
aggregate principal amount that is (i) an
integral multiple of $1 million and
not less than $2 million or (ii) if less,
equal to the remaining available
balance of the applicable Commitments.
(b) Subject to
Sections 2.11 and 2.12, each Borrowing
shall be comprised entirely of ABR Loans or
entirely of Eurodollar Loans as
Borrower may request pursuant to Section
2.03. Each Lender may at its option
make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate
of such Lender to make such Eurodollar
Loan; provided that any exercise of such
option shall not affect the obligation of
Borrower to repay such Eurodollar Loan
in accordance with the terms of this
Agreement. Borrowings of more than one Type
may be outstanding at the same time;
provided that Borrower shall not be
entitled to request any Borrowing that, if
made, would result in more than five
Eurodollar Borrowings outstanding hereunder
at any one time. For purposes of the
foregoing, Borrowings having different
Interest Periods, regardless of whether
they commence on the same date, shall be
considered separate Borrowings.
(c) Except
with respect to Loans made pursuant to Section
2.18(e)(ii), each Lender shall make each
Loan to be made by it hereunder on the
proposed date thereof by wire transfer of
immediately available funds to such
account in New York City as the
Administrative Agent may designate not later
than 11:00 a.m., New York City time, and
the Administrative Agent shall promptly
credit the amounts so received to an
account maintained by the Administrative
Agent and then distributed as directed by
Borrower in the applicable Borrowing
Request or, if a Borrowing shall not occur
on such
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date because any condition precedent herein
specified shall not have been met,
return the amounts so received to the
respective Lenders.
(d) Unless the
Administrative Agent shall have received
notice from a Lender prior to the date of
any Borrowing that such Lender will
not make available to the Administrative
Agent such Lender's portion of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
portion available to the Administrative
Agent on the date of such Borrowing in
accordance with paragraph (c) above, and
the Administrative Agent may, in
reliance upon such assumption, make
available to Borrower on such date a
corresponding amount. If the Administrative
Agent shall have so made funds
available, then, to the extent that such
Lender shall not have made such portion
available to the Administrative Agent, each
of such Lender and Borrower
severally agrees to repay to the
Administrative Agent forthwith on demand such
corresponding amount together with interest
thereon, for each day from the date
such amount is made available to Borrower
until the date such amount is repaid
to the Administrative Agent at (i) in the
case of Borrower, the interest rate
applicable at the time to the Loans
comprising such Borrowing and (ii) 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. If such Lender
shall repay to the Administrative
Agent such corresponding amount, such
amount (exclusive of any interest paid
thereon by the applicable Lender in
accordance with the immediately preceding
sentence) shall constitute such Lender's
Loan as part of such Borrowing for
purposes of this Agreement, and Borrower's
obligation to repay the
Administrative Agent such corresponding
amount pursuant to this Section 2.02(d)
shall cease.
(e)
Notwithstanding any other provision of this
Agreement, Borrower shall not be entitled
to request, or to elect to convert or
continue, any Borrowing if the Interest
Period requested with respect thereto
would end after the Revolving Maturity Date
or Term Loan Maturity Date, as
applicable.
SECTION 2.03 BORROWING
PROCEDURE. To request a
Revolving Borrowing or Term Borrowing,
Borrower shall deliver, by hand delivery
or telecopy, a duly completed and executed
Borrowing Request to the
Administrative Agent (i) in the case of a
Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three
Business Days before the date of the
proposed Borrowing or (ii) in the case of
an ABR Borrowing, not later than 9:00
a.m., New York City time, on the date of
the proposed Borrowing. Each Borrowing
Request shall be irrevocable and shall
specify the following information in
compliance with Section 2.02:
(a) whether
the requested Borrowing is to be a Borrowing
of Revolving Loans or Term Loans;
(b) the
aggregate amount of the requested Borrowing;
(c) the date
of such Borrowing, which shall be a Business
Day;
(d) whether
such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(e) in the
case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by the definition of the term "Interest Period";
provided
that until the date on which the Administrative Agent shall
have
notified Borrower that a Successful Syndication has been achieved,
the
Interest Period shall be seven days;
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(f) the
location and number of Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.02(c); and
(g) that the
conditions set forth in Sections 4.02(b)-(d)
have been satisfied as of the date of the notice.
If no election as to the Type of Borrowing is specified, then
the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is
specified with respect to any requested
Eurodollar Revolving Borrowing, then
Borrower shall be deemed to have selected
an Interest Period of one month's
duration (subject to the proviso in clause
(e) above). 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.
SECTION 2.04 EVIDENCE
OF DEBT; REPAYMENT OF LOANS.
(a) Borrower hereby unconditionally
promises to pay (i) to the Administrative
Agent for the account of each Term Loan
Lender, the principal amount of each
Term Loan of such Term Loan Lender as
provided in Section 2.09, (ii) to the
Administrative Agent for the account of
each Revolving Lender, the then unpaid
principal amount of each Revolving Loan of
such Revolving Lender on the
Revolving Maturity Date and (iii) to the
Swingline Lender, the then unpaid
principal amount of each Swingline Loan on
the earlier of the Revolving Maturity
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 two Business Days after such
Swingline Loan is made; provided that on
each date that a Revolving Borrowing is
made, Borrower shall repay all Swingline
Loans that were outstanding on the date
such Borrowing was requested.
(b) Each
Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness
of
Borrower to such Lender resulting from each Loan made by such
Lender
from time to time, including the amounts of principal and
interest
payable and paid to such Lender from time to time under this
Agreement.
(c) The
Administrative Agent shall maintain accounts in
which it will record (i) the amount of each Loan made hereunder,
the
Type and Class thereof and the Interest Period applicable thereto;
(ii)
the amount of any principal or interest due and payable or to
become
due and payable
from Borrower to each Lender hereunder; and (iii) the
amount of any sum received by the Administrative Agent hereunder
for
the account of the Lenders and each Lender's share thereof.
(d) The
entries made in the accounts maintained pursuant
to paragraphs (b) and (c) above shall be prima facie evidence of
the
existence and amounts of the obligations therein recorded;
provided
that the failure of any Lender or the Administrative Agent to
maintain
such accounts or any error therein shall not in any manner affect
the
obligations of Borrower to repay the Loans in accordance with
their
terms.
(e) Any Lender
by written notice to Borrower (with a copy
to the Administrative Agent) may request that Loans of any Class
made
by it be evidenced by a promissory note. In such event, Borrower
shall
prepare, execute and deliver to such Lender a promissory note
payable
to the order of such Lender (or, if requested by such Lender, to
such
Lender and its registered assigns) in the form of Exhibit K-I, K-2
or
K-3, as the case may be. Thereafter, the Loans evidenced by
such
promissory note and interest thereon shall at all times
(including
after assignment pursuant to Section 11.04) be represented by one
or
more promissory notes in such form payable to the order of the
payee
named therein (or, if such promissory note is a registered note,
to
such payee and its registered assigns).
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SECTION 2.05 FEES.
(a) Commitment
Fee. Borrower agrees to pay to the
Administrative Agent for the account of
each Lender a commitment fee (a
"COMMITMENT FEE") equal to 0.50% per annum
on the average daily unused amount of
each Commitment of such Lender during the
period from and including the date
hereof to but excluding the date on which
such Commitment terminates. Accrued
Commitment Fees shall be payable in arrears
(A) on the last Business Day of
March, June, September and December of each
year, commencing on the first such
date to occur after the date hereof, and
(B) on the date on which such
Commitment terminates. Commitment Fees
shall be computed on the basis of a year
of 360 days and shall be payable for the
actual number of days elapsed
(including the first day but excluding the
last day). For purposes of computing
Commitment Fees with respect to Revolving
Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the
extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and
the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b)
Administrative Agent Fees. Borrower agrees to pay to
the Administrative Agent, for its own
account, the administrative fees set forth
in the Fee Letter or such other fees
payable in the amounts and at the times
separately agreed upon between Borrower and
the Administrative Agent (the
"ADMINISTRATIVE AGENT FEES").
(c) LC and
Fronting Fees. Borrower agrees to pay (i) to
the Administrative Agent for the account of
each Revolving Lender a
participation fee ("LC PARTICIPATION FEE")
with respect to its participations in
Letters of Credit, which shall accrue at a
rate equal to the Applicable Margin
(together with any additional interest that
may then be applicable pursuant to
Section 2.06(c)) from time to time used to
determine the interest rate on
Eurodollar Revolving Loans pursuant to
Section 2.06 on the average daily amount
of such Lender's LC Exposure (excluding any
portion thereof attributable to
Reimbursement Obligations) during the
period from and including the Closing Date
to but excluding the later of the date on
which such Lender's Revolving
Commitment terminates and the date on which
such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a
fronting fee ("FRONTING FEE"), which
shall accrue at the rate of 0.125% per
annum on the average daily amount of the
LC Exposure (excluding any portion thereof
attributable to Reimbursement
Obligations) during the period from and
including the Closing Date to but
excluding the later of the date of
termination of the Revolving Commitments and
the date on which there ceases to be any LC
Exposure, as well as the Issuing
Bank's customary fees with respect to the
administration, negotiation, issuance,
amendment, renewal or extension of any
Letter of Credit or processing of
drawings thereunder. Accrued LC
Participation Fees and Fronting Fees shall be
payable in arrears (i) on the last Business
Day of March, June, September and
December of each year, commencing on the
first such date to occur after the
Closing Date, and (ii) on the date on which
the Revolving Commitments terminate.
Any such fees accruing after the date on
which the Revolving Commitments
terminate shall be payable on demand. Any
other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable
within 10 days after demand
therefor. All LC Participation Fees and
Fronting Fees shall be computed on the
basis of a year of 360 days and shall be
payable for the actual number of days
elapsed (including the first day but
excluding the last day).
(d) All Fees
shall be paid on the dates due, in
immediately available funds in dollars, to
the Administrative Agent for
distribution, if and as appropriate, among
the Lenders, except that Borrower
shall pay the Fronting Fees directly to the
Issuing Bank. Once paid, none of the
Fees shall be refundable under any
circumstances.
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SECTION 2.06 INTEREST
ON LOANS. (a) Subject to the
provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing,
including each Swingline Loan, shall bear
interest at a rate per annum equal to
the Alternate Base Rate plus the Applicable
Margin in effect from time to time.
(b) Subject to
the provisions of Section 2.06(c), the
Loans comprising each Eurodollar Borrowing
shall bear interest at a rate per
annum equal to the Adjusted LIBOR Rate for
the Interest Period in effect for
such Borrowing plus the Applicable Margin
in effect from time to time.
(c)
Notwithstanding the foregoing, during a Default, all
Obligations shall, to the extent permitted
by applicable law, bear interest,
after as well as before judgment, at a per
annum rate equal to (i) in the case
of principal of or interest on any Loan, 2%
plus the rate applicable to such
Loan at such time as provided in the
preceding paragraphs of this Section 2.06
or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR
Revolving Loans as provided in Section
2.06(a).
(d) Accrued
interest on each Loan shall be payable in
arrears on each Interest Payment Date for
such Loan; provided that (i) interest
accrued pursuant to Section 2.06(c) shall
be payable on demand, (ii) in the
event of any repayment or prepayment of any
Loan (other than a prepayment of an
ABR Revolving Loan or a Swingline Loan),
accrued interest on the principal
amount repaid or prepaid shall be payable
on the date of such repayment or
prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior
to the end of the current Interest Period
therefor, accrued interest on such
Loan shall be payable on the effective date
of such conversion.
(e) All
interest hereunder shall be computed on the basis
of a year of 360 days, except that interest
computed by reference to the
Alternate Base Rate shall be computed on
the basis of a year of 365 days (or 366
days in a leap year), and in each case
shall be payable for the actual number of
days elapsed (including the first day but
excluding the last day). The
applicable Alternate Base Rate or Adjusted
LIBOR Rate shall be determined by the
Administrative Agent in accordance with the
provisions of this Agreement and
such determination shall be conclusive
absent manifest error.
SECTION 2.07
TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Term Loan Commitments shall
automatically terminate at 5:00 p.m., New
York City time, on the Closing Date. The
Revolving Commitments, the Swingline
Commitment and the LC Commitment shall
automatically terminate on the Revolving
Maturity Date. Notwithstanding the
foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New
York City time, on March 31, 2004, if
the initial Credit Extension shall not have
occurred by such time.
(b) At its
option, Borrower may at any time terminate, or
from time to time permanently reduce, the
Commitments of any Class; provided
that (i) each reduction of the Commitments
of any Class shall be in an amount
that is an integral multiple of $1 million
and not less than $5 million, (ii)
the Revolving Commitments shall not be
terminated or reduced if, after giving
effect to any concurrent prepayment of the
Revolving Loans in accordance with
Section 2.10, the aggregate amount of
Revolving Exposures would exceed the
aggregate amount of Revolving Commitments
and (iii) any reduction of the
Revolving Commitments shall reduce the
Aggregate Revolving Loan Commitments and
the LC Commitment on a pro rata basis.
(c) Borrower
shall notify the Administrative Agent in
writing of any election to terminate or
reduce the Commitments under Section
2.07(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 any
notice, the Administrative Agent
shall advise the Lenders of the
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contents thereof. Each notice delivered by
Borrower pursuant to this Section
shall be irrevocable. Any termination or
reduction of the Commitments of any
Class shall be permanent. Each reduction of
the Commitments of any Class shall
be made ratably among the Lenders in
accordance with their respective
Commitments of such Class.
SECTION 2.08 INTEREST
ELECTIONS. (a) Each Revolving
Borrowing and Term Borrowing initially
shall be of the Type specified in the
applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall
have an initial Interest Period as
specified in such Borrowing Request.
Thereafter, Borrower may elect to convert
such Borrowing to a different Type or
to continue such Borrowing and, in the case
of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided
in this Section. 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 comprising such
Borrowing, and the Loans comprising each such
portion shall be considered a separate
Borrowing. Notwithstanding anything to
the contrary, Borrower shall not be
entitled to request any conversion or
continuation that, if made, would result in
more than five Eurodollar Borrowings
outstanding hereunder at any one time. This
Section shall not apply to Swingline
Borrowings, which may not be converted or
continued.
(b) To make an
election pursuant to this Section,
Borrower shall deliver, by hand delivery or
telecopy, a duly completed and
executed Interest Election Request to the
Administrative Agent not later than
the time that a Borrowing Request would be
required under Section 2.03 if
Borrower were requesting a Revolving
Borrowing or Term Borrowing of the Type
resulting from such election to be made on
the effective date of such election.
Each Interest Election Request shall be
irrevocable.
(c) Each
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, or if outstanding Borrowings are
being
combined, allocation to each resulting Borrowing (in which case
the
information to be specified pursuant to clauses (iii) and (iv)
below
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 the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv)
if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect
to
such election, which shall be a period contemplated by the
definition
of the term "Interest Period"; provided that until the date on
which
the Administrative Agent shall have notified Borrower that a
Successful
Syndication has been achieved, the Interest Period shall be seven
days.
If any such Interest Election Request
requests a Eurodollar Borrowing but does
not specify an Interest Period, then
Borrower shall be deemed to have selected
an Interest Period of one month's duration
(subject to the proviso in clause
(iv) above).
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<PAGE>
(d) 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) If an
Interest Election Request with respect to a
Eurodollar Borrowing is not timely delivered prior to the end of
the
Interest Period applicable thereto, then, unless such Borrowing
is
repaid as provided herein, at the end of such Interest Period
such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any
contrary provision hereof, if an Event of Default has occurred and
is
continuing, the Administrative Agent or the Required Lenders
may
require, by notice to Borrower, that (i) no outstanding Borrowing
may
be converted to or continued as a Eurodollar Borrowing and (ii)
unless
repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09
AMORTIZATION OF TERM BORROWINGS. (a)
Borrower shall pay to the Administrative
Agent, for the account of the Lenders,
on the dates set forth on Annex II, or if
any such date is not a Business Day,
on the immediately preceding Business Day
(each such date, a "TERM LOAN
REPAYMENT DATE"), a principal amount of the
Term Loans equal to the amount set
forth on Annex II for such date (as
adjusted from time to time pursuant to
Section 2.10(g)), together in each case
with accrued and unpaid interest on the
principal amount to be paid to but
excluding the date of such payment.
(b) To the
extent not previously paid, Term Loans shall
be due and payable on the Term Loan
Maturity Date.
SECTION 2.10 OPTIONAL
AND MANDATORY PREPAYMENTS OF LOANS.
(a) Optional
Prepayments. Borrower shall have the right
at any time and from time to time to prepay
any Borrowing, in whole or in part,
subject to the requirements of this Section
2.10; provided that each partial
prepayment shall be in an amount that is an
integral multiple of $1 million and
not less than $5 million.
(b) Mandatory
Revolving Loan Prepayments. (i) In the
event of the termination of all the
Revolving Commitments, Borrower shall, on
the date of such termination, repay or
prepay all outstanding Revolving
Borrowings and all outstanding Swingline
Loans and replace all outstanding
Letters of Credit or cash collateralize all
outstanding Letter of Credit in
accordance with the procedures set forth in
Section 2.18(i).
(ii)
In the event of any partial reduction of the
Revolving Commitments, then (x) at or prior
to the effective date of such
reduction, the Administrative Agent shall
notify Borrower and the Revolving
Lenders of the sum of the Revolving
Exposures after giving effect thereto and
(y) if the sum of the Revolving Exposures
would exceed the aggregate amount of
Revolving Commitments after giving effect
to such reduction, then Borrower
shall, on the date of such reduction,
first, repay or prepay Swingline Loans,
second, repay or prepay Revolving
Borrowings and third, replace outstanding
Letters of Credit or cash collateralize
outstanding Letters of Credit in
accordance with the procedures set forth in
Section 2.18(i), in an aggregate
amount sufficient to eliminate such
excess.
(iii) In
the event that the sum of all Lenders' Revolving
Exposures exceeds the Revolving Commitments
then in effect, Borrower shall,
without notice or demand, immediately
first, repay or prepay Revolving
Borrowings, and second, replace outstanding
Letters of Credit or cash
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<PAGE>
collateralize outstanding Letters of Credit
in accordance with the procedures
set forth in Section 2.18(i), in an
aggregate amount sufficient to eliminate
such excess.
(iv)
In the event that the aggregate amount of outstanding
Revolving Loans and Swingline Loans exceeds
the Aggregate Revolving Loan
Commitments, Borrower shall, without notice
or demand, immediately repay or
prepay Revolving Loans and/or Swingline
Loans in an aggregate amount sufficient
to eliminate such excess.
(v) In the
event that the aggregate LC Exposure exceeds
the LC Commitment then in effect, Borrower
shall, without notice or demand,
immediately replace outstanding Letters of
Credit or cash collateralize
outstanding Letters of Credit in accordance
with the procedures set forth in
Section 2.18(i), in an aggregate amount
sufficient to eliminate such excess.
(c) Mandatory
Asset Sale Prepayments. Not later than one
Business Day following the receipt of any
Net Cash Proceeds of any Asset Sale by
Borrower or any of its Subsidiaries,
Borrower shall apply an amount equal to
100% of such Net Cash Proceeds to make
prepayments in accordance with Sections
2.10(g) and (h); provided that:
(i) so long as
no Default shall then exist or would arise
therefrom, no such prepayment shall be required under this
Section
2.10(c) with respect to (A) any Asset Sale permitted by Section
6.06(a), (B) the disposition of property which constitutes a
Casualty
Event, or (C) Asset Sales for fair market value resulting in no
more
than $100,000 in Net Cash Proceeds per Asset Sale (or series of
related
Asset Sales) and less than $3 million in Net Cash Proceeds in
any
fiscal year; provided that clause (C) shall not apply in the case
of
any Asset Sale described in clause (b) of the definition thereof
or,
with respect to Net Cash Proceeds in an amount not to exceed
$15
million in the aggregate, Section 6.06(c); and
(ii)
so long as no Default shall then exist or would arise
therefrom, the Net Cash Proceeds in an aggregate amount not to
exceed
$25 million in any fiscal year in respect of any Asset Sales
permitted
under Section 6.06(c) (to the extent not excluded from the
prepayment
requirement pursuant to paragraph (c)(i) above) and any other
Asset
Sales shall not be required to be so applied on such date to the
extent
that (A) Borrower shall have delivered an Officers' Certificate to
the
Administrative Agent on or prior to such date stating that such
Net
Cash Proceeds are expected to be reinvested in fixed or capital
assets
within 365 days following the date of such Asset Sale (which
Officers'
Certificate shall set forth the estimates of the proceeds to be
so
expended); and (B) all Net Cash Proceeds in respect of all Asset
Sales
(other than those referred to in clause (C) of Section 2.10(c)(i))
in
excess of $3 million in the aggregate at any time shall be held in
the
Collateral Account and released therefrom only in accordance with
the
provisions of Article IX; provided that if all or any portion of
such
Net Cash Proceeds is not so reinvested within such 365-day period,
such
unused portion shall be applied on the last day of such period as
a
mandatory prepayment as provided in this Section 2.10(c); and
provided,
further, that if the property subject to such Asset Sale
constituted
Collateral, then all property purchased with the Net Cash
Proceeds
thereof pursuant to this subsection shall be made subject to the
Lien
of the applicable Security Documents in favor of the Collateral
Agent,
for its benefit and for the benefit of the other Secured Parties
in
accordance with Sections 5.11 and 5.12.
(d) Mandatory
Debt or Preferred Stock Issuance
Prepayment. Not later than one Business Day
following the receipt of any Net
Cash Proceeds of any Debt Issuance or
Preferred Stock
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<PAGE>
Issuance by Borrower or any of its
Subsidiaries, Borrower shall make prepayments
in accordance with Sections 2.10(g) and (h)
in an aggregate principal amount
equal to 100% of such Net Cash
Proceeds.
(e) Casualty
Events. Not later than one Business Day
following the receipt of any Net Cash
Proceeds from a Casualty Event by Borrower
or any of its Subsidiaries, Borrower shall
apply an amount equal to 100% of such
Net Cash Proceeds to make prepayments in
accordance with Sections 2.10(g) and
(h); provided that:
(i) so long as
no Default shall then exist or arise
therefrom, such proceeds shall not be required to be so applied on
such
date to the extent that Borrower shall have delivered an
Officers'
Certificate to the Administrative Agent on or prior to such
date
stating that such proceeds are expected to be used to repair,
replace
or restore any property in respect of which such Net Cash Proceeds
were
paid, no later than 365 days following the date of receipt of
such
proceeds;
provided that if the property subject to such Casualty Event
constituted Collateral under the Security Documents, then all
property
purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable
Security
Documents in favor of the Collateral Agent, for its benefit and for
the
benefit of the other Secured Parties in accordance with Sections
5.11
and 5.12;
(ii)
all Net Cash
Proceeds in respect of all Casualty
Events in excess of $3 million in the aggregate shall be held in
the
Collateral Account and released therefrom only in accordance with
the
provisions of Article IX; and
(iii) if
any portion of such Net Cash Proceeds shall not be
so applied within such 365-day period, such unused portion shall
be
applied on the last day of such period as a mandatory prepayment
as
provided in this Section 2.10(e).
(f) Mandatory
Excess Cash Flow Prepayment. No later than
the earlier of (i) 90 days after the end of each Excess Cash
Flow
Period and (ii) the date on which the financial statements with
respect
to such fiscal
year in which such Excess Cash Flow Period occurs are
delivered pursuant to Section 5.01(a), Borrower shall make
prepayments
in accordance with Sections 2.10(g) and (h) in an aggregate
principal
amount equal to 50% of Excess Cash Flow for such Excess Cash
Flow
Period unless the Total Funded Debt Leverage Ratio for the Test
Period
ending on the last day of such Excess Cash Flow Period is equal to
or
less than 2.50 to 1.00, in which case no such prepayment shall
be
required.
(g)
Application of Prepayments. (i) Prior to any optional
or mandatory prepayment hereunder, Borrower shall select the
Borrowing
or Borrowings to be prepaid and shall specify such selection in
the
notice of such prepayment pursuant to Section 2.10(h), subject to
the
provisions of this Section 2.10(g). Any prepayments of Loans
required
or made pursuant to Section 2.10 (a), (c), (d), (e) or (f) shall
be
applied to reduce scheduled amortization payments required
under
Section 2.09(a), on a pro rata basis among such amortization
payments
as are remaining to be made on each remaining Term Loan Repayment
Date.
After application of mandatory prepayments described above in
this
Section 2.10(g) and to the extent there are mandatory
prepayment
amounts remaining after such application in respect of any
prepayment
required pursuant to Section 2.10(c) or (f), the Revolving
Commitments
shall be permanently reduced ratably among the Revolving Lenders
in
accordance with their applicable Revolving Commitments in an
aggregate
amount equal to such excess, and Borrower shall comply with
Section
2.10(b).
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<PAGE>
(ii)
Amounts to be applied pursuant to this Section 2.10
to the prepayment of Term Loans and
Revolving Loans shall be applied, as
applicable, first to reduce outstanding ABR
Term Loans and ABR Revolving Loans,
respectively. Any amounts remaining after
each such application shall be applied
to prepay Eurodollar Term Loans or
Eurodollar Revolving Loans, as applicable.
Notwithstanding the foregoing, if the
amount of any prepayment of Loans required
under this Section 2.10 shall be in excess
of the amount of the ABR Loans at the
time outstanding (an "EXCESS AMOUNT"), only
the portion of the amount of such
prepayment as is equal to the amount of
such outstanding ABR Loans shall be
immediately prepaid and, at the election of
Borrower, the balance of such
required prepayment shall be either (A)
deposited in the Collateral Account and
applied to the prepayment of Eurodollar
Loans on the last day of the then
next-expiring Interest Period for
Eurodollar Loans; provided that (i) interest
in respect of such Excess Amount shall
continue to accrue thereon at the rate
provided hereunder for the Loans which such
Excess Amount is intended to repay
until such Excess Amount shall have been
used in full to repay such Loans and
(ii) at any time while an Event of Default
has occurred and is continuing, the
Administrative Agent may, and upon written
direction from the Required Lenders
shall, apply any or all proceeds then on
deposit in the Collateral Account to
the payment of such Loans in an amount
equal to such Excess Amount or (B)
prepaid immediately, together with any
amounts owing to the Lenders under
Section 2.13.
(h) Notice of
Prepayment. Borrower shall notify the
Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the
Swingline Lender) by written notice of any
prepayment hereunder (i) in the case
of prepayment of a Eurodollar Borrowing,
not later than 11:00 a.m., New York
City time, three Business Days before the
date of prepayment, (ii) in the case
of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City
time, one Business Day before the date of
prepayment and (iii) in the case of
prepayment of a Swingline Loan, not later
than 11:00 a.m., New York City time,
on the date of prepayment. Each such notice
shall be irrevocable. Each such
notice shall specify the prepayment date,
the principal amount of each Borrowing
or portion thereof to be prepaid and, in
the case of a mandatory prepayment, a
reasonably detailed calculation of the
amount of such prepayment. Promptly
following receipt of any such notice (other
than a notice relating solely to
Swingline Loans), the Administrative Agent
shall advise the Lenders of the
contents thereof. Such notice to the
Lenders may be by electronic communication.
Each partial prepayment of any Borrowing
shall be in an amount that would be
permitted in the case of a Credit Extension
of the same Type as provided in
Section 2.02, except as necessary to apply
fully the required amount of a
mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing
and otherwise in accordance with
this Section 2.10. Prepayments shall be
accompanied by accrued interest to the
extent required by Section 2.06.
SECTION 2.11 ALTERNATE
RATE OF INTEREST. If prior to
the commencement of any Interest Period for
a Eurodollar Borrowing:
(a) the
Administrative Agent reasonably determines (which
determination shall be final and conclusive absent manifest error)
that
adequate and reasonable means do not exist for ascertaining the
Adjusted LIBOR Rate for such Interest Period; or
(b) the
Administrative Agent is advised in writing by the
Required Lenders that the Adjusted LIBOR Rate for such Interest
Period
will not adequately and fairly reflect the cost to such Lenders
of
making or maintaining their Loans included in such Borrowing for
such
Interest Period;
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then the Administrative Agent shall give
written notice thereof to Borrower and
the Lenders as promptly as practicable
thereafter and, until the Administrative
Agent notifies Borrower and the Lenders
that the circumstances giving rise to
such notice no longer exist, (i) any
Interest Election Request that requests the
conversion of any Borrowing to, or
continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR
Borrowing.
SECTION 2.12 INCREASED
COSTS. (a) If any Change in
Law shall:
(i) impose,
modify or deem applicable any reserve,
special deposit or similar requirement against property of,
deposits
with or for the account of, or credit extended by, any Lender
(except
any such reserve requirement reflected in the Adjusted LIBOR Rate)
or
the Issuing Bank; or
(ii)
impose on any Lender or the Issuing Bank or the
London interbank market any other condition affecting this
Agreement or
Eurodollar Loans
made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing
shall be to increase the cost to such
Lender of making or maintaining any
Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to
increase the cost to such Lender, the
Issuing Bank or such Lender's or the
Issuing Bank's holding company, if any, of
participating in, issuing or maintaining
any Letter of Credit or to reduce the
amount of any sum received or receivable by
such Lender or the Issuing Bank
hereunder (whether of principal, interest
or otherwise), then Borrower will pay
to such Lender or the Issuing Bank, as the
case may be, such additional amount
or amounts as will compensate such Lender
or the Issuing Bank, as the case may
be, for such additional costs incurred or
reduction suffered, it being
understood that this Section 2.12 shall not
apply to Taxes.
(b) If any
Lender or the Issuing Bank reasonably
determines in good faith (which
determination shall be final and conclusive
absent manifest error) that any Change in
Law regarding capital requirements has
or would have the effect of reducing the
rate of return on such Lender's or the
Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's
holding company, if any, as a consequence
of this Agreement or the Loans made
by, or participations in Letters of Credit
held by, such Lender, or the Letters
of Credit issued by the Issuing Bank, to a
level below that which such Lender or
the Issuing Bank or such Lender's or the
Issuing Bank's holding company could
have achieved but for such Change in Law
(taking into consideration such
Lender's or the Issuing Bank's policies and
the policies of such Lender's or the
Issuing Bank's holding company with respect
to capital adequacy), then from time
to time Borrower will pay to such Lender or
the Issuing Bank, as the case may
be, upon delivery of a certificate of such
Lender or Issuing Bank in accordance
with paragraph (c) below, such additional
amount or amounts as will compensate
such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding
company for any such reduction
suffered.
(c) A
certificate of a Lender or the Issuing Bank setting
forth in reasonable detail the amount or
amounts necessary to compensate such
Lender or the Issuing Bank or its holding
company, as the case may be, as
specified in paragraph (a) or (b) of this
Section 2.12 shall be delivered to
Borrower (with a copy to the Administrative
Agent) and shall be conclusive and
binding absent manifest error. Borrower
shall pay such Lender or the Issuing
Bank, as the case may be, the amount shown
as due on any such certificate within
5 days after receipt thereof.
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(d) Failure or
delay on the part of any Lender or the
Issuing Bank to demand compensation
pursuant to this Section 2.12 shall not
constitute a waiver of such Lender's or the
Issuing Bank's right to demand such
compensation; provided that Borrower shall
not be required to compensate a
Lender or the Issuing Bank pursuant to this
Section for any increased costs or
reductions incurred more than 180 days
prior to the date that such Lender or the
Issuing Bank, as the case may be, notifies
Borrower of the Change in Law giving
rise to such increased costs or reductions
and of such Lender's or the Issuing
Bank's intention to claim compensation
therefor; provided, further, that, if the
Change in Law giving rise to such increased
costs or reductions is retroactive,
then the 180-day period referred to above
shall be extended back to the date of
effectiveness of the Change in Law so long
as Borrower receives notice thereof
on or before the date that is 180 days
after the enactment of such Change in
Law.
SECTION 2.13 BREAKAGE
PAYMENTS. In the event of (a)
the payment or prepayment, whether optional
or mandatory, of any principal of
any Eurodollar Loan earlier than the last
day of an Interest Period applicable
thereto (including as a result of an Event
of Default), (b) the conversion of
any Eurodollar Loan earlier than the last
day of the Interest Period applicable
thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving
Loan or Term Loan on the date specified in
any notice delivered pursuant hereto
or (d) the assignment of any Eurodollar
Loan earlier than the last day of the
Interest Period applicable thereto as a
result of a request by Borrower pursuant
to Section 2.16, then, in any such event,
Borrower shall compensate each Lender
for the loss, cost and expense attributable
to such event. In the case of a
Eurodollar Loan, such loss, cost or expense
to any Lender shall be deemed to
include an amount determined by such Lender
to be the excess, if any, of (i) the
amount of interest which would have accrued
on the principal amount of such Loan
had such event not occurred, at the
Adjusted LIBOR Rate that would have been
applicable to such Loan, for the period
from the date of such event to the last
day of the then current Interest Period
therefor (or, in the case of a failure
to borrow, convert or continue, for the
period that would have been the Interest
Period for such Loan), over (ii) the amount
of interest which would accrue on
such principal amount for such period at
the interest rate which such Lender
would bid were it to bid, at the
commencement of such period, for dollar
deposits of a comparable amount and period
from other banks in the Eurodollar
market. A certificate of any Lender setting
forth in reasonable detail any
amount or amounts that such Lender is
entitled to receive pursuant to this
Section 2.13 shall be delivered to Borrower
(with a copy to the Administrative
Agent) and shall be conclusive and binding
absent manifest error. Borrower shall
pay such Lender the amount shown as due on
any such certificate within 5 days
after receipt thereof.
SECTION 2.14 PAYMENTS
GENERALLY; PRO RATA TREATMENT;
SHARING OF SETOFFS. (a) Borrower shall make
each payment required to be made by
it hereunder or under any other Loan
Document (whether of principal, interest,
fees or Reimbursement Obligations, or of
amounts payable under Section 2.12,
2.13 or 2.15, or otherwise) on or before
the time expressly required hereunder
or under such other Loan Document for such
payment (or, if no such time is
expressly required, prior to 2:00 p.m., New
York City time), on the date when
due, in immediately available funds,
without setoff, deduction or counterclaim,
other than deductions for Taxes that are
Excluded Taxes. Any amounts received
after such time on any date may, in the
discretion of the Administrative Agent,
be deemed to have been received on the next
succeeding Business Day for purposes
of calculating interest thereon. All such
payments shall be made to the
Administrative Agent at its offices at 677
Washington Boulevard, Stamford,
Connecticut, except payments to be made
directly to the Issuing Bank or
Swingline Lender as expressly provided
herein and except that payments pursuant
to Sections 2.12, 2.13, 2.15 and 11.03
shall be made directly to the persons
entitled thereto and payments pursuant to
other Loan Documents shall be made to
the persons specified therein. The
Administrative Agent shall distribute any
such payments received by it for the
account of any other person to the
appropriate recipient promptly following
receipt
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thereof. If any payment under any Loan
Document shall be due on a day that is
not a Business Day, unless specified
otherwise, the date for payment shall be
extended to the next succeeding Business
Day, and, in the case of any payment
accruing interest, interest thereon shall
be payable for the period of such
extension. All payments under each Loan
Document shall be made in dollars,
except as expressly specified
otherwise.
(b) If at any
time insufficient funds are received by and
available to the Administrative Agent to
pay fully all amounts of principal,
Reimbursement Obligations, interest and
fees then due hereunder, such funds
shall be applied (i) first, towards payment
of interest and fees then due
hereunder, ratably among the parties
entitled thereto in accordance with the
amounts of interest and fees then due to
such parties, and (ii) second, towards
payment of principal and Reimbursement
Obligations then due hereunder, ratably
among the parties entitled thereto in
accordance with the amounts of principal
and Reimbursement Obligations then due to
such parties.
(c) If any
Lender shall, by exercising any right of
setoff or counterclaim or otherwise
(including by exercise of its rights under
Section 9.1(a)(viii) of the Security
Agreement), obtain payment in respect of
any principal of or interest on any of its
Revolving Loans, Term Loans or
participations in LC Disbursements or
Swingline Loans resulting in such Lender
receiving payment of a greater proportion
of the aggregate amount of its
Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the
proportion received by any other
Lender, then the Lender receiving such
greater proportion shall purchase (for
cash at face value) participations in the
Revolving Loans, Term Loans, LC
Disbursements and Swingline Loans of other
Lenders to the extent necessary so
that the benefit of all such payments shall
be shared by the Lenders ratably in
accordance with the aggregate amount of
principal of and accrued interest on
their respective Revolving Loans, Term
Loans and participations in LC
Disbursements and Swingline Loans; provided
that (i) if any such participations
are purchased and all or any portion of the
payment giving rise thereto is
recovered, such participations shall be
rescinded and the purchase price
restored to the extent of such recovery,
without interest, and (ii) the
provisions of this paragraph shall not be
construed to apply to any payment made
by Borrower pursuant to and in accordance
with the express terms of this
Agreement or any payment obtained by a
Lender as consideration for the
assignment of or sale of a participation in
any of its Loans or participations
in LC Disbursements to any assignee or
participant, other than to Borrower or
any of its Subsidiaries or Affiliates (as
to which the provisions of this
paragraph shall apply). Each Loan Party
consents to the foregoing and agrees, to
the extent it may effectively do so under
applicable law, that any Lender
acquiring a participation pursuant to the
foregoing arrangements may exercise
against such Loan Party rights of setoff
and counterclaim with respect to such
participation as fully as if such Lender
were a direct creditor of such Loan
Party in the amount of such participation.
If under applicable bankruptcy,
insolvency or any similar law any Secured
Party receives a secured claim in lieu
of a setoff or counterclaim to which this
Section 2.14(c) applies, such Secured
Party shall, to the extent practicable,
exercise its rights in respect of such
secured claim in a manner consistent with
the rights to which the Secured Party
is entitled under this Section 2.14(c) to
share in the benefits of the recovery
of such secured claim.
(d) Unless the
Administrative Agent shall have received
notice from Borrower prior to the date on
which any payment is due to the
Administrative Agent for the account of the
Lenders hereunder that Borrower will
not make such payment, the Administrative
Agent may assume that Borrower has
made such payment on such date in
accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders
the amount due. In such event, if
Borrower has not in fact made such payment,
then each of the Lenders severally
agrees to repay to the Administrative Agent
forthwith
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on demand the amount so distributed to such
Lender with interest thereon, for
each day from and including the date such
amount is distributed to it to but
excluding the date of payment to the
Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate
determined by the Administrative Agent
in accordance with banking industry rules
on interbank compensation.
(e) If any
Lender shall fail to make any payment required
to be made by it pursuant to Section
2.02(c), 2.14(d), 2.17(d), 2.18(d), 2.18(e)
or 11.03(d), then the Administrative Agent
may, in its discretion
(notwithstanding any contrary provision
hereof), apply any amounts thereafter
received by the Administrative Agent for
the account of such Lender to satisfy
such Lender's obligations under such
Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.15 TAXES. (a)
Any and all payments by or
on account of any obligation of Borrower
hereunder or under any other Loan
Document shall be made without setoff,
counterclaim or other defense and free
and clear of and without deduction or
withholding for any and all Indemnified
Taxes; provided that if any Indemnified
Taxes are required to be deducted or
withheld from such payments, then (i) the
sum payable by Borrower shall be
increased as necessary so that after all
required deductions or withholdings
(including deductions or withholdings
applicable to additional sums payable
under this Section 2.15) the Administrative
Agent, any Lender or the Issuing
Bank, as the case may be, receives an
amount equal to the sum it would have
received had no such deductions or
withholdings been made, (ii) Borrower shall
make, or cause to be made, such deductions
or withholdings and (iii) Borrower
shall pay, or cause to be paid, the full
amount deducted or withheld to the
relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, Borrower shall pay any Other Taxes to
the relevant Governmental Authority in
accordance with applicable law.
(c) Borrower
shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10
Business Days after written demand
therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or
the Issuing Bank, as the case may be,
on or with respect to any payment by or on
account of any obligation of Borrower
hereunder or under any other Loan Document
(including Indemnified Taxes or Other
Taxes imposed or asserted on or
attributable to amounts payable under this
Section 2.15) and any reasonable expenses
arising therefrom or with respect
thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant
Governmental Authority. A
certificate as to the amount of such
payment or liability delivered to Borrower
by a Lender or the Issuing Bank, or by the
Administrative Agent on its own
behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent
manifest error.
(d) As soon as
practicable after any payment of
Indemnified Taxes or Other Taxes pursuant
to Section 2.15(a) or (b) above, and
in any event within 30 days of any such
payment being due, Borrower shall
deliver, or cause to be delivered, to the
Administrative Agent the original or a
certified copy of a receipt issued by such
Governmental Authority evidencing
such payment, a copy of the return
reporting such payment or other evidence of
such payment reasonably satisfactory to the
Administrative Agent.
(e) Any
Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under
the law of the jurisdiction in which
Borrower is located, or any treaty to which
such jurisdiction is a party, with
respect to payments under this Agreement
shall deliver to Borrower (with a copy
to the Administrative Agent), at the time
or times prescribed by applicable law,
such
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properly completed and executed
documentation prescribed by applicable law and
reasonably requested (in writing) by
Borrower or the Administrative Agent as
will permit such payments to be made
without withholding or at a reduced rate.
In addition, each Foreign Lender shall (i)
furnish on or before it becomes a
party to this Agreement either (a) two
accurate and complete originally executed
U.S. Internal Revenue Service Form W-8BEN
(or successor form) or (b) an accurate
and complete U.S. Internal Revenue Service
Form W-8ECI (or successor form),
certifying, in either case, to such Foreign
Lender's legal entitlement to an
exemption or reduction from U.S. federal
withholding tax with respect to all
interest payments hereunder, and (ii)
provide a new Form W-8BEN (or successor
form) or Form W-8ECI (or successor form)
upon the expiration or obsolescence of
any previously delivered form to reconfirm
any complete exemption from, or any
entitlement to a reduction in, U.S. federal
withholding tax with respect to any
interest payment hereunder; provided that
any Foreign Lender that is not a
"bank" within the meaning of Section
881(c)(3)(A) of the Code and is relying on
the so-called "portfolio interest
exemption" shall also furnish a "Non-Bank
Certificate" in the form of Exhibit Q
together with a Form W-8BEN.
Notwithstanding any other provision of this
paragraph, a Foreign Lender shall
not be required to deliver any form
pursuant to this paragraph that such Foreign
Lender is not legally able to deliver.
(f) If the
Administrative Agent or a Lender (or an
assignee) determines in its reasonable
discretion that it has received a refund
of any Indemnified Taxes or Other Taxes as
to which it has been indemnified by
Borrower or with respect to which Borrower
has paid additional amounts pursuant
to this Section 2.15, so long as there is
no Default, it shall pay over such
refund to Borrower (but only to the extent
of indemnity payments made, or
additional amounts paid, by Borrower under
this Section 2.15 with respect to the
Indemnified Taxes or the Other Taxes giving
rise to such refund), net of all
out-of-pocket expenses of the
Administrative Agent or such Lender (or assignee)
and without interest (other than any
interest paid by the relevant Governmental
Authority with respect to such refund);
provided, however, that Borrower, upon
the request of the Administrative Agent or
such Lender (or assignee), agrees to
repay the amount paid over to Borrower
(plus any penalties, interest or other
charges imposed by the relevant
Governmental Authority) to the Administrative
Agent or such Lender (or assignee) within a
reasonable time (not to exceed 20
days) after receipt of written notice that
the Administrative Agent or such
Lender (or assignee) is required to repay
such refund to such Governmental
Authority. Nothing contained in this
Section 2.15(f) shall require the
Administrative Agent or any Lender (or
assignee) to make available its tax
returns or any other information which it
deems confidential to Borrower or any
other person. Notwithstanding anything to
the contrary, in no event will any
Lender be required to pay any amount to
Borrower the payment of which would
place such Lender in a less favorable net
after-tax position than such Lender
would have been in if Indemnified Taxes or
Other Taxes had never been imposed.
SECTION 2.16 MITIGATION
OBLIGATIONS; REPLACEMENT OF
LENDERS.
(a) Mitigation
of Obligations. If any Lender requests
compensation under Section 2.12, or if
Borrower is required to pay any
additional amount to any Lender or any
Governmental Authority for the account of
any Lender pursuant to Section 2.15, then
such Lender shall use reasonable
efforts to designate a different lending
office for funding or booking its Loans
hereunder or to assign its rights and
obligations hereunder to another of its
offices, branches or affiliates, if, in the
reasonable judgment of such Lender,
such designation or assignment (i) would
eliminate or reduce amounts payable
pursuant to Section 2.12 or 2.15, as the
case may be, in the future and (ii)
would not subject such Lender to any
unreimbursed cost or expense and would not
otherwise be disadvantageous to such
Lender. Borrower hereby agrees to pay all
reasonable costs and expenses incurred by
any Lender in connection
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with any such designation or assignment. A
certificate setting forth such costs
and expenses in reasonable detail submitted
by such Lender to the Administrative
Agent shall be conclusive absent manifest
error.
(b)
Replacement of Lenders. If any Lender requests
compensation under Section 2.12, or if
Borrower is required to pay any
additional amount to any Lender or any
Governmental Authority for the account of
any Lender pursuant to Section 2.15, or if
any Lender defaults in its obligation
to fund Loans hereunder, then Borrower may,
at its sole expense and effort, upon
notice to such Lender and the
Administrative Agent, require such Lender to
assign and delegate, without recourse (in
accordance with and subject to the
restrictions contained in Section 11.04),
all of its interests, rights and
obligations under this Agreement to an
assignee selected by Borrower that shall
assume such obligations (which assignee may
be another Lender, if a Lender
accepts such assignment); provided that (i)
Borrower shall have received the
prior written consent of the Administrative
Agent (and, if a Revolving
Commitment is being assigned, the Issuing
Bank and Swingline Lender), which
consents shall not unreasonably be
withheld, (ii) such Lender shall have
received payment of an amount equal to the
outstanding principal of its Loans
and participations in LC Disbursements and
Swingline Loans, accrued interest
thereon, accrued fees and all other amounts
payable to it hereunder (assuming
for this purpose that the Loans of such
Lender were being prepaid) from the
assignee (to the extent of such outstanding
principal and accrued interest and
fees) or Borrower (in the case of all other
amounts) and (iii) in the case of
any such assignment resulting from a claim
for compensation under Section 2.12
or payments required to be made pursuant to
Section 2.15, such assignment will
result in a material reduction in such
compensation or payments. A Lender shall
not be required to make any such assignment
and delegation if, prior thereto, as
a result of a waiver by such Lender or
otherwise, the circumstances entitling
Borrower to require such assignment and
delegation cease to apply.
SECTION 2.17 SWINGLINE
LOANS.
(a) Swingline
Commitment. Subject to the terms and
conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans
to Borrower from time to time during the
Revolving Availability Period, in an
aggregate principal amount at any time
outstanding that will not result in (i)
the aggregate principal amount of
outstanding Swingline Loans exceeding $7.5
million or (ii) the sum of the total
Revolving Exposures exceeding the total
outstanding Revolving Commitments; provided
that the Swingline Lender shall not
be required to make a Swingline Loan to
refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to
the terms and conditions set forth
herein, Borrower may borrow, repay and
reborrow Swingline Loans.
(b) Swingline
Loans. To request a Swingline Loan,
Borrower shall deliver, by hand delivery or
telecopy, a duly completed and
executed Borrowing Request to the
Administrative Agent and the Swingline Lender,
not later than 2:00 p.m., New York City
time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable
and shall specify the requested date
(which shall be a Business Day) and the
amount of the requested Swingline Loan.
Each Swingline Loan shall be an ABR Loan.
The Swingline Lender shall make each
Swingline Loan available to Borrower by
means of a credit to an account
maintained by the Administrative Agent for
Borrower and then distributed as
directed by Borrower in the applicable
Borrowing Request (or, in the case of a
Swingline Loan made to finance the
reimbursement of an LC Disbursement as
provided in Section 2.18(e), by remittance
to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date
of such Swingline Loan. Borrower shall
not request a Swingline Loan if at the time
of or immediately after giving
effect to the Extension of Credit
contemplated by such request a Default has
occurred and is continuing or would result
therefrom. Swingline Loans shall be
made in minimum amounts of $1 million and
integral multiples of $500,000 above
such amount.
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(c)
Prepayment. Borrower shall have the right at any time
and from time to time to repay any
Swingline Loan, in whole or in part, upon
giving written notice to the Swingline
Lender and the Administrative Agent
before 12:00 (noon), New York City time, on
the proposed date of repayment.
(d)
Participations. The Swingline Lender may at any time
in its discretion by written notice given
to the Administrative Agent (provided
such notice requirement shall not apply if
the Swingline Lender and the
Administrative Agent are the same entity)
not later than 11:00 A.M., New York
City time, on the next succeeding Business
Day following such notice require the
Revolving Lenders to acquire participations
on such Business Day in all or a
portion of the Swingline Loans then
outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in
which Revolving Lenders will participate.
Promptly upon receipt of such notice, the
Administrative Agent will give notice
thereof to each Revolving Lender,
specifying in such notice such Lender's Pro
Rata Percentage of such Swingline Loan or
Loans. Each Revolving Lender hereby
absolutely and unconditionally agrees, upon
receipt of notice as provided above,
to pay to the Administrative Agent, for the
account of the Swingline Lender,
such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees
that its obligation to acquire
participations in Swingline Loans pursuant
to this paragraph is absolute and
unconditional and shall not be affected by
any circumstance whatsoever,
including the occurrence and continuance of
a Default or reduction or
termination of the Commitments, and that
each such payment shall be made without
any offset, abatement, withholding or
reduction whatsoever (so long as such
payment shall not cause such Lender's
Revolving Exposure to exceed such Lender's
Revolving Commitment). Each Revolving
Lender shall comply with its obligation
under this paragraph by wire transfer of
immediately available funds, in the
same manner as provided in Section 2.02(c)
with respect to Loans made by such
Lender (and Section 2.02 shall apply,
mutatis mutandis, to the payment
obligations of the Revolving Lenders), and
the Administrative Agent shall
promptly pay to the Swingline Lender the
amounts so received by it from the
Revolving Lenders. The Administrative Agent
shall notify Borrower of any
participations in any Swingline Loan
acquired by the Revolving Lenders pursuant
to this paragraph, and thereafter payments
in respect of such Swingline Loan
shall be made to the Administrative Agent
and not to the Swingline Lender. Any
amounts received by the Swingline Lender
from Borrower (or another party on
behalf of Borrower) in respect of a
Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale
of participations therein shall be
promptly remitted to the Administrative
Agent. Any such amounts received by the
Administrative Agent shall be promptly
remitted by the Administrative Agent to
the Revolving Lenders that shall have made
their payments pursuant to this
paragraph, as their interests may appear.
The purchase of participations in a
Swingline Loan pursuant to this paragraph
shall not relieve Borrower of any
default in the payment thereof.
SECTION 2.18
LETTERS OF
CREDIT
(a) General.
Subject to the terms and conditions set
forth herein, Borrower may request the
Issuing Bank, and the Issuing Bank
agrees, to issue Letters of Credit for
Borrower's own account or the account of
a Subsidiary in a form reasonably
acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to
time during the Revolving
Availability Period (provided that Borrower
shall be a co-applicant, and be
jointly and severally liable, with respect
to each Letter of Credit issued for
the account of a Subsidiary). The Issuing
Bank shall have no obligation to
issue, and Borrower shall not request the
issuance of, any Letter of Credit at
any time if after giving effect to such
issuance, the LC Exposure would exceed
the LC Commitment or the total Revolving
Exposure would exceed the total
Revolving Commitments. 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
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other agreement submitted by Borrower to,
or entered into by Borrower with, the
Issuing Bank relating to any Letter of
Credit, the terms and conditions of this
Agreement shall control.
(b) Request
for Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance
of a Letter of Credit or the
amendment, renewal or extension of an
outstanding Letter of Credit, Borrower
shall hand deliver or telecopy (or transmit
by electronic communication, if
arrangements for doing so have been
approved by the Issuing Bank) an LC Request
to the Issuing Bank and the Administrative
Agent not later than 11:00 a.m. on
the third Business Day preceding the
requested date of issuance, amendment,
renewal or extension (or such later date
and time as is acceptable to the
Issuing Bank).
A request for an initial issuance of a Letter of Credit shall
specify in form and detail reasonably
satisfactory to the Issuing Bank:
(i) the
proposed issuance date of the requested Letter of
Credit (which shall be a Business Day);
(ii)
the amount thereof;
(iii) the
expiry date thereof (which shall not be later
than the close of business on the Letter of Credit Expiration
Date);
(iv)
the name and address of the beneficiary thereof;
(v) whether
the Letter of Credit is to be issued for its
own account or for the account of one of its Subsidiaries
(provided
that Borrower shall be a co-applicant, and therefore jointly
and
severally liable, with respect to each Letter of Credit issued for
the
account of a Subsidiary);
(vi)
the documents to be presented by such beneficiary in
connection with any drawing thereunder;
(vii) the
full text of any certificate to be presented by
such beneficiary in connection with any drawing thereunder; and
(viii) such
other matters as the Issuing Bank may require.
A request for an amendment, renewal or extension of any
outstanding Letter of Credit shall specify
in form and detail reasonably
satisfactory to the Issuing Bank:
(i) the Letter
of Credit to be amended, renewed or
extended;
(ii)
the proposed date of amendment, renewal or extension
thereof (which shall be a Business Day);
(iii) the
proposed expiry date thereof (which shall not be
later than the close of business on the Letter of Credit
Expiration
Date);
(iv)
the nature of the proposed amendment, renewal or
extension; and
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(v) such other
matters as the Issuing Bank may require.
If requested by the Issuing Bank, Borrower also shall submit a
letter of credit application on the Issuing
Bank's standard form in connection
with any request for a Letter of Credit. A
Letter of Credit shall be issued,
amended, renewed or extended only if (and,
upon issuance, amendment, renewal or
extension of each Letter of Credit,
Borrower shall be deemed to represent and
warrant that), after giving effect to such
issuance, amendment, renewal or
extension, (i) the LC Exposure shall not
exceed the LC Commitment, (ii) the
total Revolving Exposures shall not exceed
the total Revolving Commitments and
(iii) the conditions set forth in Article
IV in respect of such issuance,
amendment, renewal or extension shall have
been satisfied. Unless the Issuing
Bank shall agree otherwise, no Letter of
Credit shall be in an initial amount
less than $100,000, in the case of a
Commercial Letter of Credit, or $500,000,
in the case of a Standby Letter of
Credit.
(c) Expiration
Date. Each Letter of Credit shall expire
at or prior to the close of business on the
earlier of (i) in the case of a
Standby Letter of Credit, (x) the date
which is one year after the date of the
issuance of such Standby Letter of Credit
(or, in the case of any renewal or
extension thereof, one year after such
renewal or extension) or such later date
as may be agreed by the Issuing Bank and
(y) the Letter of Credit Expiration
Date and (ii) in the case of a Commercial
Letter of Credit, (x) the date that is
180 days after the date of issuance of such
Commercial Letter of Credit (or, in
the case of any renewal or extension
thereof, 180 days after such renewal or
extension) and (y) the Letter of Credit
Expiration Date. If Borrower so
requests, the Issuing Bank may, in its
reasonable discretion, agree to issue a
Letter of Credit that has automatic renewal
provisions (each, an "AUTO-RENEWAL
LETTER OF CREDIT"); provided that any such
Auto-Renewal Letter of Credit must
permit the Issuing Bank to prevent any such
renewal at least once in each
twelve-month period (commencing with the
date of issuance of such Letter of
Credit) by giving prior notice to the
beneficiary thereof not later than a day
in each such twelve-month period to be
agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed
by the Issuing Bank, Borrower shall
not be required to make a specific request
to the Issuing Bank for any such
renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Revolving
Lenders shall be deemed to have authorized
(but may not require) the Issuing
Bank to permit the renewal of such Letter
of Credit at any time to an expiry
date not later than the earlier of (i) one
year from the date of such renewal
and (ii) the Letter of Credit Expiration
Date; provided that the Issuing Bank
shall not permit any such renewal if (x)
the Issuing Bank has determined that it
would have no obligation at such time to
issue such Letter of Credit in its
renewed form under the terms hereof (by
reason of the provisions of Section
2.18(l) or otherwise), or (y) it has
received notice on or before the day that
is two Business Days before the date which
has been agreed upon pursuant to the
proviso of the first sentence of this
paragraph, (1) from the Administrative
Agent that any Revolving Lender directly
affected thereby has elected not to
permit such renewal or (2) from the
Administrative Agent, any Lender or Borrower
that one or more of the applicable
conditions specified in Section 4.02 are not
then satisfied.
(d)
Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit
increasing the amount thereof) and
without any further action on the part of
the Issuing Bank or the Lenders, the
Issuing Bank hereby irrevocably grants to
each Revolving Lender, and each
Revolving Lender hereby acquires from the
Issuing Bank, a participation in such
Letter of Credit equal to such Revolving
Lender's Pro Rata Percentage of the
aggregate amount available to be drawn
under such Letter of Credit. In
consideration and in furtherance of the
foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to
pay to the Administrative Agent, for
the account of the Issuing Bank, such
Revolving Lender's Pro Rata Percentage of
each LC Disbursement made by the Issuing
Bank and not reimbursed by Borrower on
the date due as provided in Section
2.18(e), or of any reimbursement payment
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required to be refunded to Borrower for any
reason. Each Revolving 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 o
