Exhibit 10.01
CREDIT AGREEMENT
Dated as of October 26, 2005
among
LAUREATE EDUCATION, INC.,
as the Borrower,
THE SUBSIDIARIES OF THE BORROWER IDENTIFIED
HEREIN,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO
TABLE OF CONTENTS
SCHEDULES
1.01
Mandatory Cost Formulae
2.01
Commitments and Applicable Percentages
2.03
Existing Letters of Credit
6.13
Subsidiaries
6.20
Location of Chief Executive Office, Etc.
8.01
Liens Existing on the Closing Date
8.03
Indebtedness Existing on the Closing Date
11.02
Certain Addresses for Notices
11.06
Processing and Recordation Fees
EXHIBITS
2.02
Form of Loan Notice
2.11(a) Form of
Tranche A Revolving Note
2.11(b) Form of
Tranche B Revolving Note
2.11(c) Form of
Swing Line Note
7.02
Form of Compliance Certificate
7.12
Form of Joinder Agreement
11.06 Form
of Assignment and Assumption
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered
into as of October 26, 2005 among LAUREATE EDUCATION, INC., a
Maryland corporation (the “ Borrower ”), the
Guarantors (defined herein), the Lenders (defined herein) and BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and
L/C Issuer.
The Borrower has requested that the
Lenders provide $120 million in credit facilities for the purposes
set forth herein, and the Lenders are willing to do so on the terms
and conditions set forth herein.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms .
As used in this Agreement, the
following terms shall have the meanings set forth below:
“
Acquisition ”, by any Person, means the acquisition by
such Person, in a single transaction or in a series of related
transactions, of all or any substantial portion of the property of
another Person or at least a majority of the Voting Stock of
another Person, in each case whether or not involving a merger or
consolidation with such other Person and whether for cash,
property, services, assumption of Indebtedness, securities or
otherwise.
“ Administrative Agent
” means Bank of America in its capacity as administrative
agent under any of the Loan Documents, or any successor
administrative agent.
“ Administrative
Agent’s Office ” means, with respect to any
currency, the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02
with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from
time to time notify to the Borrower and the Lenders.
“ Administrative
Questionnaire ” means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
“ Affiliate ”
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified.
“ Aggregate Revolving
Commitments ” means the Revolving Commitments of all the
Lenders. The initial amount of the Aggregate Revolving
Commitments in effect on the Closing Date is ONE HUNDRED TWENTY
MILLION DOLLARS ($120,000,000).
“ Aggregate Tranche A
Revolving Commitments ” means the Tranche A Revolving
Commitments of all the Tranche A Lenders. The initial amount
of the Aggregate Tranche A Revolving Commitments in effect on the
Closing Date is NINETY MILLION DOLLARS ($90,000,000).
“ Aggregate Tranche B
Revolving Commitments ” means the Tranche B Revolving
Commitments of all the Tranche B Lenders. The initial amount
of the Aggregate Tranche B Revolving Commitments in effect on the
Closing Date is THIRTY MILLION DOLLARS ($30,000,000).
“ Agreement ”
means this Credit Agreement.
“ Alternative Currency
” means Euro, Sterling and each other currency (other than
Dollars) that is approved in accordance with
Section 1.08 .
“ Alternative Currency
Equivalent ” means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency as determined by the Administrative
Agent at such time on the basis of the Spot Rate (determined in
respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.
“ Alternative Currency
Sublimit ” means an amount equal to the lesser of the
Aggregate Tranche A Revolving Commitments and $50 million.
The Alternative Currency Sublimit is part of, and not in addition
to, the Aggregate Tranche A Revolving Commitments.
“ Applicable Percentage
” means with respect to any Lender at any time, (a) with
regard to such Lender’s Tranche A Revolving Commitment, the
percentage (carried out to the ninth decimal place) of the
Aggregate Tranche A Revolving Commitments represented by such
Lender’s Tranche A Revolving Commitment at such time;
provided that if the commitment of each Lender to make Tranche A
Revolving Loans has been terminated pursuant to Section 9.02
or if the Tranche A Aggregate Revolving Commitments have expired,
then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments and (b) the
percentage (carried out to the ninth decimal place) of the
Aggregate Tranche B Revolving Commitments represented by such
Lender’s Tranche B Revolving Commitment at such time;
provided that if the commitment of each Lender to make Tranche B
Revolving Loans and the obligation of the L/C Issuer to make
Tranche B L/C Credit Extensions have been terminated pursuant to
Section 9.02 or if the Tranche B Aggregate Revolving
Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of
such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of
each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as
applicable.
“ Applicable Rate
” means, (a) with regard to Tranche A Revolving Loans, (i)
for Eurocurrency Rate Loans, 1.75% per annum and (ii) for Base Rate
Loans, 0.25% per annum, and (b) with regard to Tranche B Revolving
Loans, (i) for Eurocurrency Rate Loans, 1.50% per annum; and (ii)
for Base Rate Loans, 0.00% per annum.
“ Applicable Time
” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for
such Alternative Currency as may be determined by the
Administrative Agent to be necessary for timely settlement on the
relevant date in accordance with normal banking procedures in the
place of payment.
“ Approved Fund ”
means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
“ Assignee Group
” means two or more Eligible Assignees that are Affiliates of
one another or two or more Approved Funds managed by the same
investment advisor.
2
“ Assignment and
Assumption ” means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.06(b) ), and
accepted by the Administrative Agent, in substantially the form of
Exhibit 11.06 or any other form approved by the
Administrative Agent.
“ Attributable
Indebtedness ” means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, (b) in respect of any Synthetic
Lease, the capitalized amount of the remaining lease payments under
the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a Capital Lease, (c) in respect of any
Securitization Transaction of any Person, the outstanding principal
amount of such financing, after taking into account reserve
accounts and making appropriate adjustments, determined by the
Administrative Agent in its reasonable judgment and (d) in the case
of any Sale and Leaseback Transaction, the present value
(discounted in accordance with GAAP at the debt rate implied in the
applicable lease) of the obligations of the lessee for rental
payments during the term of such lease).
“ Audited Financial
Statements ” means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended
December 31, 2004, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows of
the Borrower and its Subsidiaries for such fiscal year, including
the notes thereto.
“ Availability Period
” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Revolving Commitments pursuant to Section 2.06
, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 9.02 .
“ Bank of America
” means Bank of America, N.A. and its successors.
“ Base Rate ”
means for any day a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 0.50% and (b) the rate of
interest in effect for such day as publicly announced from time to
time by Bank of America as its “prime rate.” The
“prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in
the “prime rate” announced by Bank of America shall
take effect at the opening of business on the day specified in the
public announcement of such change.
“ Base Rate Loan
” means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in
Dollars.
“ Borrower ” has
the meaning specified in the introductory paragraph
hereto.
“ Borrower Materials
” has the meaning specified in Section 7.02
.
“ Borrowing ”
means a borrowing consisting of simultaneous Loans of the same
Type, in the same currency and, in the case of Eurocurrency Rate
Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01 .
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent’s
Office with respect to Obligations denominated in Dollars is
located and:
3
(a)
if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of
any such Eurocurrency Rate Loan, or any other dealings in Dollars
to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in
deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market;
(b)
if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings,
disbursements, settlements and payments in Euro in respect of any
such Eurocurrency Rate Loan, or any other dealings in Euro to be
carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;
(c)
if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars
or Euro, means any such day on which dealings in deposits in the
relevant currency are conducted by and between banks in the London
or other applicable offshore interbank market for such currency;
and
(d)
if such day relates to any fundings, disbursements, settlements and
payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars
or Euro, or any other dealings in any currency other than Dollars
or Euro to be carried out pursuant to this Agreement in respect of
any such Eurocurrency Rate Loan (other than any interest rate
settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country
of such currency.
“
Businesses ” means, at any time, a collective
reference to the businesses operated by the Borrower and its
Subsidiaries at such time.
“ Capital Lease ”
means , as applied to any
Person, any lease of any property by that Person as lessee which,
in accordance with GAAP, is required to be accounted for as a
capital lease on the balance sheet of that
Person.
“ Cash Collateralize
” has the meaning specified in Section 2.03(g)
.
“
Cash Equivalents ” means, as at any date, (a) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition,
(b) Dollar denominated time deposits and certificates of
deposit of (i) any Lender, (ii) any domestic commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof
or from Moody’s is at least P-1 or the equivalent thereof
(any such bank being an “Approved Bank”), in each case
with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by
Moody’s and maturing within six months of the date of
acquisition, (d) repurchase agreements entered into by any
Person with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations
and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered
under the Investment Company Act of 1940 which are administered by
reputable financial
4
institutions having
capital of at least $500,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
“ Change in Law ”
means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation
or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance
of any request, guideline or directive (whether or not having the
force of law) by any Governmental Authority.
“ Change of Control
” means an event or series of events by which:
(a)
any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such
plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have
“beneficial ownership” of all Equity Interests that
such person or group has the right to acquire (such right, an
“ option right ”), whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of twenty five (25%) of the Equity
Interests of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a
fully diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any
option right);
(b)
during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to that
board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to
that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting
at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board
or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than
a solicitation for the election of one or more directors by or on
behalf of the board of directors); or
(c)
any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management
or policies of the Borrower, or control over the Voting Stock of
the Borrower on a fully-diluted basis (and taking into account all
such Voting Stock that such Person or group has the right to
acquire pursuant to any option right) representing twenty five
(25%) or more of the combined voting power of such Voting
Stock.
“ Closing Date ”
means the date hereof.
“ Collateral Documents
” means a collective reference to the Pledge Agreement and
other security documents as may be executed and delivered by the
Loan Parties pursuant to the terms of Section 7.14
.
5
“ Commitment ”
means, as to each Lender, the Revolving Commitment of such
Lender.
“ Compliance
Certificate ” means a certificate substantially in the
form of Exhibit 7.02 .
“ Consolidated EBITDA
” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus the following
to the extent deducted in calculating such Consolidated Net Income:
(a) Consolidated Interest Charges for such period, (b) the
provision for federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period, and
(c) the amount of depreciation and amortization expense for such
period, all as determined in accordance with GAAP.
“ Consolidated Funded
Indebtedness ” means Funded Indebtedness of the Borrower
and its Subsidiaries on a consolidated basis determined in
accordance with GAAP.
“ Consolidated Interest
Charges ” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of
(i) all interest, premium payments, debt discount, fees, charges
and related expenses in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in
accordance with GAAP, plus (ii) the portion of rent expense
with respect to such period under Capital Leases that is treated as
interest in accordance with GAAP plus (iii) the implied
interest component of Synthetic Leases with respect to such
period.
“ Consolidated Net
Income ” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the
Borrower and its Subsidiaries (excluding extraordinary gains) for
that period, as determined in accordance with GAAP.
“ Contractual
Obligation ” means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound.
“ Control ” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. “ Controlling ” and “
Controlled ” have meanings correlative thereto.
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 5% or more of the
securities having ordinary voting power for the election of
directors, managing general partners or the equivalent.
“ Credit Extension
” means each of the following: (a) a Borrowing and (b) an L/C
Credit Extension.
“ Debtor Relief Laws
” means the Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors
generally.
“ Default ” means
any event or condition that constitutes an Event of Default or
that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“ Default Rate ”
means (a) when used with respect to Obligations other than Letter
of Credit Fees, an interest rate equal to (i) the Base Rate
plus (ii) the Applicable Rate, if any, applicable to Base
Rate Loans plus (iii) 2% per annum; provided ,
however , that with respect to a Eurocurrency Rate Loan,
the
6
Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate and any Mandatory
Cost) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws and (b)
when used with respect to Letter of Credit Fees, a rate equal to
the Applicable Rate plus 2% per annum.
“ Defaulting Lender
” means any Lender that (a) has failed to fund any portion of
the Loans or participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b)
has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.
“ Disposition ”
or “ Dispose ” means the sale, transfer,
license, lease or other disposition of any Property (including the
Equity Interests of any Subsidiary) by the Borrower or any
Subsidiary, including any Sale and Leaseback Transaction and any
sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (a) the sale, lease,
license, transfer or other disposition of inventory in the ordinary
course of business of the Borrower and its Subsidiaries, (b) the
sale, lease, license, transfer or other disposition of machinery
and equipment no longer used or useful in the conduct of business
of the Borrower and its Subsidiaries, (c) any sale, lease, license,
transfer or other disposition of Property by the Borrower or any
Subsidiary to any Loan Party and (d) any sale, lease, license,
transfer or other disposition of Property by any Foreign Subsidiary
to another Foreign Subsidiary.
“ Dollar ” and
“ $ ” mean lawful money of the United
States.
“ Dollar Equivalent
” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to
any amount denominated in any Alternative Currency, the equivalent
amount thereof in Dollars as determined by the Administrative Agent
at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars
with such Alternative Currency.
“ Domestic Subsidiary
” means any Subsidiary that is organized under the laws of
any state of the United States or the District of
Columbia.
“ Eligible Assignee
” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent (and in the case
of an assignment of a Tranche B Revolving Commitment, the L/C
Issuer and the Swing Line Lender), and (ii) unless an Event of
Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries; and provided
further , however , that in the case of an assignment
of a Tranche A Revolving Commitment, an Eligible Assignee shall
include only a Lender, an Affiliate of a Lender or another Person,
which, through its Lending Offices, is capable of lending the
applicable Alternative Currencies to the Borrower without the
imposition of any additional Indemnified Taxes.
“ EMU ” means the
economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht
Treaty of 1992 and the Amsterdam Treaty of 1998.
“ EMU Legislation
” means the legislative measures of the European Council for
the introduction of, changeover to or operation of a single or
unified European currency.
7
“ Environmental Laws
” means any and all federal, state, local, foreign and other
applicable statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or the
release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
“ Environmental
Liability ” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any
other Loan Party or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“ Equity Interests
” means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in)
such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock
of (or other ownership or profit interests in) such Person, all of
the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in
such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“
Equity Issuance ” means any issuance by the Borrower
or any Domestic Subsidiary to any Person of its Equity Interests,
other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity
Interests pursuant to the conversion of any debt securities to
equity or the conversion of any class equity securities to any
other class of equity securities, (c) any issuance of options or
warrants relating to its Equity Interests, and (d) any issuance by
the Borrower of its Equity Interests as consideration for an
Acquisition. The term “Equity Issuance” shall not
be deemed to include any Disposition.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974.
“ ERISA Affiliate
” means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Internal Revenue Code (and Sections
414(m) and (o) of the Internal Revenue Code for purposes of
provisions relating to Section 412 of the Internal Revenue
Code).
“ ERISA Event ”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c)
a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice
of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan
or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of
8
any liability under Title IV of ERISA, other
than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
“ Euro ” means
the lawful currency of the Participating Member States introduced
in accordance with the EMU Legislation.
“ Eurocurrency Base
Rate ” means, for any Interest Period with respect to a
Eurocurrency Rate Loan, the rate per annum equal to the British
Bankers Association LIBOR Rate (“ BBA LIBOR ”),
as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “Eurocurrency
Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which
deposits in the relevant currency for delivery on the first day of
such Interest Period in Same Day Funds in the approximate amount of
the Eurocurrency Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major
banks in the offshore interbank market of such currency at their
request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
“ Eurocurrency Rate
” means, for any Interest Period with respect to any
Eurocurrency Rate Loan, a rate per annum determined by the
Administrative Agent to be
equal to the quotient obtained by dividing (a) the Eurocurrency
Base Rate for such Eurocurrency Rate Loan for such Interest Period
by (b) one minus the Eurocurrency Reserve Percentage for such
Eurocurrency Rate Loan for such Interest Period.
“ Eurocurrency Rate
Loan ” means a Loan that bears interest at a rate based
on the Eurocurrency Rate. Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All
Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans.
“ Eurocurrency Reserve
Percentage ” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out
to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”). The
Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall
be adjusted automatically as of the effective date of any change in
the Eurocurrency Reserve Percentage.
“ Event of Default
” has the meaning specified in Section 9.01
.
“
Excluded Taxes ” means, with respect to the
Administrative Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws
of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 11.13 ), any
withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign
Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e) ,
except
9
to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a) .
“
Existing Letters of Credit ” means those letters of
credit outstanding on the Closing Date and identified on
Schedule 2.03 .
“
Facilities ” means, at any time, a collective
reference to the facilities and real properties owned, leased or
operated by the Borrower or any Subsidiary.
“ Federal Funds Rate
” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the
Administrative Agent.
“ Fee Letter ”
means the letter agreement, dated October 12, 2005 among the
Borrower and the Administrative Agent.
“ Foreign Lender
” means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for
tax purposes. For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
“ Foreign Subsidiary
” means any Subsidiary that is not a Domestic
Subsidiary.
“ FRB ” means the
Board of Governors of the Federal Reserve System of the United
States.
“ Fund ” means
any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business.
“ Funded Indebtedness
” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a)
all obligations for borrowed money, whether current or long-term
(including the Obligations) and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b)
all purchase money Indebtedness;
(c)
the principal portion of all obligations under conditional sale or
other title retention agreements relating to property purchased by
such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary
course of business);
(d)
all obligations arising under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;
10
(e)
all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the
ordinary course of business and, in each case, not past due for
more than 60 days after the date on which such trade account
payable was created);
(f)
the Attributable Indebtedness of Capital Leases, Sale and Leaseback
Transactions and Synthetic Leases;
(g)
the Attributable Indebtedness of Securitization
Transactions;
(h)
all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Equity Interests in
such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid
dividends;
(i)
all Funded Indebtedness of others secured by (or for which the
holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, property owned or acquired
by such Person, whether or not the obligations secured thereby have
been assumed;
(j)
all Guarantees with respect to Funded Indebtedness of the types
specified in clauses (a) through (i) above of another Person;
and
(k)
all Funded Indebtedness of the types referred to in clauses (a)
through (j) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or joint
venturer, except to the extent that Funded Indebtedness is
expressly made non-recourse to such Person.
For purposes hereof, the amount of
any direct obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments shall be the
maximum amount available to be drawn thereunder.
“ GAAP ” means
generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board, consistently applied and as in effect
from time to time.
“ Governmental
Authority ” means the government of the United States or
any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or
the European Central Bank).
“ Guarantee ”
means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “ primary
obligor ”) in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose
of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or
other obligation, (iii) to maintain working capital, equity capital
or any other financial statement condition or liquidity
or
11
level of income or cash flow of the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person
securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by
such Person (or any right, contingent or otherwise, of any holder
of such Indebtedness to obtain any such Lien). The amount of
any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if
not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing
Person in good faith. The term “Guarantee” as a
verb has a corresponding meaning.
“ Guaranty ”
means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV
.
“ Guarantors ”
means each Domestic Subsidiary
of the Borrower identified as a “Guarantor” on the
signature pages hereto and each other Person that joins as a
Guarantor pursuant to Section 7.12 , together with their
successors and permitted assigns.
“ Hazardous Materials
” means all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental
Law.
“ Honor Date ”
has the meaning set forth in Section 2.03(c) .
“ Immaterial Domestic
Subsidiary ” means any Domestic Subsidiary that is not a
Material Domestic Subsidiary.
“ Indebtedness ”
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a)
all Funded Indebtedness;
(b)
the Swap Termination Value of any Swap Contract;
(c)
all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) and (b) above of any other Person;
and
(d)
all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company)
in which such Person is a general partner or joint venturer, unless
such Indebtedness is expressly made non-recourse to such
Person.
“ Indemnified Taxes
” means Taxes other than Excluded Taxes.
“ Indemnitees ”
has the meaning specified in Section 11.04(b) .
“ Information ”
has the meaning specified in Section 11.07 .
12
“ Interest Payment Date
” means (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date;
provided , however , that if any Interest Period for
a Eurocurrency Rate Loan exceeds three months, the respective dates
that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of
each March, June, September and December and the Maturity
Date.
“ Interest Period
” means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or
converted to or continued as a Eurocurrency Rate Loan and ending on
the date one, two, three or six months thereafter, as selected by
the Borrower in its Loan Notice; provided that:
(i)
any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business
Day;
(ii)
any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii)
no Interest Period shall extend beyond the Maturity
Date.
“ Interim Financial
Statements ” has the meaning set forth in Section
5.01(c) .
“ Internal Control
Event ” means a material weakness in, or fraud that
involves management or other employees who have a significant role
in, the Borrower’s internal controls over financial
reporting, in each case as described in the Securities
Laws.
“ Internal Revenue Code
” means the Internal Revenue Code of 1986.
“ Investment ”
means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, (b) a
loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness
of such other Person, or (c) an Acquisition. For purposes of
covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
“ IRS ” means the
United States Internal Revenue Service.
“ ISP ” means,
with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
“ Issuer Documents
” means with respect to any Letter of Credit, the Letter of
Credit Application, and any other document, agreement and
instrument entered into by the L/C Issuer and the Borrower (or any
Subsidiary) or in favor the L/C Issuer and relating to any such
Letter of Credit.
13
“ Joinder Agreement
” means a joinder
agreement substantially in the form of Exhibit 7.12 executed
and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12 .
“ Laws ” means,
collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in
each case whether or not having the force of law.
“ L/C Advance ”
means, with respect to each Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its
Applicable Percentage.
“ L/C Borrowing ”
means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when
made or refinanced as a Borrowing of Tranche B Revolving
Loans.
“ L/C Credit Extension
” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of
the amount thereof.
“ L/C Issuer ”
means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
“ L/C Obligations
” means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings. For purposes of computing the
amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with
Section 1.06 . For all purposes of this Agreement, if
on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining
available to be drawn.
“ Lenders ” means
each of the Persons identified as a “Lender” on the
signature pages hereto and their successors and assigns and, as the
context requires, includes the Swing Line Lender.
“ Lending Office
” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative
Questionnaire, or such other office or offices as a Lender may from
time to time notify the Borrower and the Administrative
Agent.
“ Letter of Credit
” means any standby letter of credit issued hereunder and
shall include the Existing Letters of Credit. All Letters of
Credit shall be issued in Dollars.
“ Letter of Credit
Application ” means an application and agreement for the
issuance or amendment of a letter of credit in the form from time
to time in use by the L/C Issuer.
“ Letter of Credit
Expiration Date ” means the day that is thirty days prior
to the Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
“ Letter of Credit Fee
” has the meaning specified in Section 2.03(i)
.
14
“ Letter of Credit
Sublimit ” means an amount equal to the lesser of (a) the
Aggregate Tranche B Revolving Commitments and (b)
$20,000,000. The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Tranche B Revolving
Commitments.
“ Lien ” means
any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential
arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the
foregoing).
“ Loan ” means an
extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan or Swing Line
Loan.
“ Loan Documents
” means this Agreement, each Note, each Issuer Document, each
Joinder Agreement, the Collateral Documents and the Fee
Letter.
“ Loan Notice ”
means a notice of (a) a Borrowing of Revolving Loans, (b) a
conversion of Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, in each case pursuant to
Section 2.02(a) , which, if in writing, shall be
substantially in the form of Exhibit 2.02 .
“ Loan Parties ”
means, collectively, the Borrower and each Guarantor.
“ Mandatory Cost
” means, with respect to any period, the percentage rate per
annum determined in accordance with Schedule 1.01
.
“ Material Adverse
Effect ” means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document to which
it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party.
“ Material Domestic
Subsidiary ” means any Domestic Subsidiary if (a) the
revenue of such Domestic Subsidiary exceeds 2% of the revenue of
the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP or (b) the book value of the
assets of such Domestic Subsidiary exceeds 2% of the book value of
the assets of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP.
“ Material Foreign
Subsidiary ” means any Foreign Subsidiary if (a) the
revenue of such Foreign Subsidiary exceeds 2% of the revenue of the
Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP or (b) the book value of the assets of such
Foreign Subsidiary exceeds 2% of the book value of the assets of
the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP.
“ Material Indebtedness
” means any Indebtedness (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate
principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold
Amount.
15
“ Material Subsidiary
” means any Material Domestic Subsidiary or any Material
Foreign Subsidiary.
“
Maturity Date ” means October 25, 2006 (being the date
364 days after the Closing Date).
“ Moody’s ”
means Moody’s Investors Service, Inc. and any successor
thereto.
“ Multiemployer Plan
” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any
ERISA Affiliate makes or is obligated to make contributions, or
during the preceding five plan years, has made or been obligated to
make contributions.
“ Net
Cash Proceeds ” means the aggregate cash or Cash
Equivalents proceeds received by the Borrower or any Subsidiary in
respect of any Disposition or Equity Issuance net of (a) direct
costs incurred in connection therewith (including, without
limitation, legal, accounting and investment banking fees, and
sales commissions), (b) taxes paid or payable as a result thereof
and (c) in the case of any Disposition, the amount necessary to
retire any Indebtedness secured by a Permitted Lien (ranking senior
to any Lien of the Administrative Agent) on the related
property ; it being understood that “Net Cash
Proceeds” shall include, without limitation, any cash or Cash
Equivalents received upon the sale or other disposition of any
non-cash consideration received by the Borrower or any Subsidiary
in any Disposition or Equity Issuance.
“ Note ” means,
collectively, the Tranche A Revolving Notes, the Tranche B
Revolving Notes and the Swing Line Note.
“ Obligations ”
means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit,
whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that
accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such
proceeding. The foregoing shall also include (a) all obligations
under any Swap Contract between any Loan Party and any Lender or
Affiliate of a Lender that is permitted to be incurred pursuant to
Section 8.03(d) and (b) all obligations under any Treasury
Management Agreement between any Loan Party and any Lender or
Affiliate of a Lender.
“ Organization
Documents ” means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization
and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable,
any certificate or articles of formation or organization of such
entity.
“ Other Taxes ”
means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from
the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
16
“ Outstanding Amount
” means (i) with respect to any Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or
repayments of such Loans occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including
as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.
“ Overnight Rate
” means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate
and (ii) an overnight rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which
overnight deposits in the applicable Alternative Currency, in an
amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by a branch
or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank
market.
“ Participant ”
has the meaning specified in Section 11.06(d) .
“ Participating Member
State ” means each state so described in any EMU
Legislation
“ PBGC ” means
the Pension Benefit Guaranty Corporation or any successor
thereto.
“ Pension Plan ”
means any “employee pension benefit plan” (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the
Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding five plan
years.
“
Permitted Liens ” means, at any time, Liens in respect
of property of the Borrower or any of its Subsidiaries permitted to
exist at such time pursuant to the terms of Section 8.01
.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
“ Plan ” means
any “employee benefit plan” (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect
to any such plan that is subject to Section 412 of the Internal
Revenue Code or Title IV of ERISA, any ERISA Affiliate.
“ Platform ” has
the meaning specified in Section 7.02 .
“ Pledge Agreement
” means the pledge agreement dated as of the Closing Date
executed in favor of the Administrative Agent by each of the Loan
Parties.
“ Property ”
means any interest of any kind in any property or asset, whether
real, personal or mixed, or tangible or intangible.
“ Register ” has
the meaning specified in Section 11.06(c) .
“ Registered Public
Accounting Firm ” has the meaning specified in the
Securities Laws and shall be independent of the Borrower as
prescribed by the Securities Laws.
17
“ Related Parties
” means, with respect to any Person, such Person’s
Affiliates and the partners, directors, officers, employees, agents
and advisors of such Person and of such Person’s
Affiliates.
“ Reportable Event
” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty-day notice period has
been waived.
“ Request for Credit
Extension ” means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit
Application.
“ Required Lenders
” means, at any time, Lenders holding in the aggregate more
than 50% of (a) the unfunded Commitments and the outstanding
Loans, L/C Obligations and participations therein or (b) if
the Commitments have been terminated, the outstanding Loans, L/C
Obligations and participations therein. The unfunded
Commitments of, and the outstanding Loans held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
“ Responsible Officer
” means the chief executive officer, president or chief
financial officer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“ Restricted Payment
” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests
of the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such
Equity Interests or on account of any return of capital to the
Borrower’s stockholders, partners or members (or the
equivalent Person thereof), or any setting apart of funds or
property for any of the foregoing.
“ Revaluation Date
” means each of the following: (i) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate
Loan denominated in an Alternative Currency pursuant to
Section 2.02 , and (iii) such additional dates as the
Administrative Agent shall determine or the Tranche A Required
Lenders shall require.
“ Revolving Commitments
” means the Tranche A Revolving Commitment and Tranche B
Revolving Commitment.
“ Revolving Loans
” has the meaning specified in Section 2.01(b)
.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
“ Sale and Leaseback
Transaction ” means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any
Person whereby the Borrower or such Subsidiary shall sell or
transfer any property used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially
the same purpose or purposes as the property being sold or
transferred.
“ Same Day Funds
” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Alternative Currency, same day or
other funds as may be determined by the Administrative Agent to be
customary in
18
the place of disbursement or payment for the
settlement of international banking transactions in the relevant
Alternative Currency.
“ Sarbanes-Oxley
” means the Sarbanes-Oxley Act of 2002.
“ SEC ” means the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“ Securities Laws
” means the Securities Act of 1933, the Securities Exchange
Act of 1934, Sarbanes-Oxley and the applicable accounting and
auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the Public Company
Accounting Oversight Board, as each of the foregoing may be amended
and in effect on any applicable date hereunder.
“ Securitization
Transaction ” means, with respect to any Person, any
financing transaction or series of financing transactions
(including factoring arrangements) pursuant to which such Person or
any Subsidiary of such Person may sell, convey or otherwise
transfer, or grant a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or
similar rights to payment to a special purpose subsidiary or
affiliate of such Person.
“
Solvent ” or “ Solvency ” means,
with respect to any Person as of a particular date, that on such
date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they
mature in the ordinary course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts
and liabilities mature in their ordinary course, (c) such Person is
not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such
Person’s property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the
fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value
of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its
debts as they become absolute and matured. In computing the
amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or
matured liability.
“ Spot Rate ” for
a currency means the rate determined by the Administrative Agent to
be the rate quoted as the spot rate for the purchase of such
currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the
date two Business Days prior to the date as of which the foreign
exchange computation is made; provided that the
Administrative Agent may obtain such spot rate from another
financial institution designated by the Administrative Agent if the
Administrative Agent does not have as of the date of determination
a spot buying rate for any such currency.
“ Sterling ”
means the lawful currency of the United Kingdom.
“ Subsidiary ” of
a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of
the shares of Voting Stock is at the time beneficially owned, or
the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to
a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.
19
“ Swap Contract ”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with
any related schedules, a “ Master Agreement ”),
including any such obligations or liabilities under any Master
Agreement.
“ Swap Termination
Value ” means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s) and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a
Lender).
“ Swing Line Lender
” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender
hereunder.
“ Swing Line Loan
” has the meaning specified in Section 2.04(a)
.
“ Swing Line Note
” has the meaning specified in Section 2.11
.
“ Swing Line Sublimit
” means an amount equal to the lesser of (a) $5,000,000 and
(b) the Aggregate Tranche B Revolving Commitments. The Swing
Line Sublimit is part of, and not in addition to, the Aggregate
Tranche B Revolving Commitments.
“ Synthetic Lease
” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing
arrangement whereby the arrangement is considered borrowed money
indebtedness for tax purposes but is classified as an operating
lease or does not otherwise appear on a balance sheet under
GAAP.
“ TARGET Day ”
means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such
payment system ceases to be operative, such other payment system
(if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in
Euro.
“ Taxes ” means
all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“ Threshold Amount
” means $5,000,000
.
20
“ Total Revolving
Outstandings ” means the aggregate Outstanding Amount of
all Revolving Loans, all Swing Line Loans and all L/C
Obligations.
“ Tranche A Lenders
” means, at any time, Lenders holding Tranche A Revolving
Commitments or an outstanding Tranche A Revolving Loans.
“ Tranche A Required
Lenders ” means, at any time, Lenders holding in the
aggregate more than 50% of (a) the unfunded Tranche A
Revolving Commitments and the outstanding Tranche A Revolving Loans
or (b) if the Tranche A Revolving Commitments have been
terminated, the outstanding Tranche A Revolving Loans. The
unfunded Tranche A Revolving Commitments of, and the outstanding
Tranche A Revolving Loans held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of
Tranche A Required Lenders.
“ Tranche A Revolving
Commitment ” means, as to each Lender, its obligation to
make Tranche A Revolving Loans to the Borrower pursuant to
Section 2.01 , in an aggregate principal amount at any one
time outstanding not to exceed the Dollar amount set forth opposite
such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement.
“ Tranche A Revolving
Loan ” has the meaning specified in Section
2.01(a) .
“ Tranche A Revolving
Note ” has the meaning specified in Section 2.11
.
“ Tranche B Lenders
” means, at any time, Lenders holding Tranche B Revolving
Commitments or an outstanding Tranche B Revolving Loans.
“ Tranche B Required
Lenders ” means, at any time, Lenders holding in the
aggregate more than 50% of (a) the unfunded Tranche B
Revolving Commitments and the outstanding Tranche B Revolving
Loans, Swing Line Loans, L/C Obligations and participations therein
or (b) if the Tranche B Revolving Commitments have been
terminated, the outstanding Tranche B Revolving Loans, Swing Line
Loans, L/C Obligations and participations therein. The
unfunded Tranche B Revolving Commitments of, and the outstanding
Tranche B Revolving Loans, Swing Line Loans, L/C Obligations and
participations therein, held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of
Tranche B Required Lenders.
“ Tranche B Revolving
Commitment ” means, as to each Lender, its obligation to
(a) make Tranche B Revolving Loans to the Borrower pursuant to
Section 2.01 , (b) purchase participations in L/C
Obligations and (c) purchase participations in Swing Line Loans, in
an aggregate principal amount at any one time outstanding not to
exceed the Dollar amount set forth opposite such Lender’s
name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
“ Tranche B Revolving
Loan ” has the meaning specified in Section
2.01(b) .
“ Tranche B Revolving
Note ” has the meaning specified in Section 2.11
.
“ Treasury Management
Agreement ” means any agreement governing the provision
of treasury or cash management services, including deposit
accounts, funds transfer, automated clearinghouse, zero balance
accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance
services.
21
“ Type ” means,
with respect to any Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.
“ Unfunded Pension
Liability ” means the excess of a Pension Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding that Pension Plan
pursuant to Section 412 of the Internal Revenue Code for the
applicable plan year.
“ United States ”
and “ U.S. ” mean the United States of
America.
“ Unreimbursed Amount
” has the meaning specified in Section 2.03(c)(i)
.
“
Voting Stock ” means , with
respect to any Person, Equity Interests issued by such Person the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a
contingency.
“ Walden University
” means Walden University, Inc., a Florida
corporation.
“
Wholly Owned Subsidiary ” means any Person 100% of
whose Equity Interests are at the time owned by the Borrower
directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the
Borrower.
1.02
Other Interpretive Provisions .
With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a)
The 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, (i) any definition of or reference to
any agreement, instrument or other document (including any
Organization Document) 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 or in any other Loan Document), (ii) any reference
herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “
herein ,” “ hereof ” and “
hereunder ,” and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “
asset ” and “ property ” shall be
construed to have the same meaning and effect and to refer to any
and all real and personal property and tangible and intangible
assets and properties, including cash, securities, accounts and
contract rights.
22
(b)
In the computation of periods of time from a specified date to a
later specified date, the word “ from ” means
“ from and including ;” the words “
to ” and “ until ” each mean
“ to but excluding ;” and the word “
through ” means “ to and including
.”
(c)
Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan
Document.
1.03
Accounting Terms .
(a)
Generally . Except as otherwise specifically
prescribed herein, all accounting terms not specifically or
completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial
Statements; provided, however, that calculations of Attributable
Indebtedness under any Synthetic Lease or the implied interest
component of any Synthetic Lease shall be made by the Borrower in
accordance with accepted financial practice and consistent with the
terms of such Synthetic Lease.
(b)
Changes in GAAP . The Borrower will provide a written
summary of material changes in GAAP and in the consistent
application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 7.02(b)
. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required
Lenders); provided that , until so amended, (i) such
ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
1.04
Rounding .
Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the
result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05
Times of Day .
Unless otherwise specified, all
references herein to times of day shall be references to Eastern
time (daylight or standard, as applicable).
1.06
Letter of Credit Amounts .
Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be
the stated amount of such Letter of Credit in effect at such time;
provided , however , that with respect to any Letter
of Credit that, by its terms or the terms of any Issuer Document
related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit
shall be
23
deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such
time.
1.07
Exchange Rates; Currency Equivalents .
(a)
The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Extensions and Total Revolving Outstandings
denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot
Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except
for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be
such Dollar Equivalent amount as so determined by the
Administrative Agent.
(b)
Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan
an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Borrowing or Eurocurrency Rate Loan
is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount
(rounded to the nearest unit of such Alternative Currency, with 0.5
of a unit being rounded upward), as determined by the
Administrative Agent.
1.08
Additional Alternative Currencies .
(a)
The Borrower may from time to time request that Eurocurrency Rate
Loans be made in a currency other than those specifically listed in
the definition of “Alternative Currency;”
provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any
such request, such request shall be subject to the approval of the
Administrative Agent and the Tranche A Lenders.
(b)
Any such request shall be made to the Administrative Agent not
later than 11:00 a.m., ten (10) Business Days prior to the
date of the desired Credit Extension (or such other time or date as
may be agreed by the Administrative Agent in its sole
discretion). The Administrative Agent shall promptly notify
each Tranche A Lender of such request. Each Tranche A Lender
shall notify the Administrative Agent, not later than
11:00 a.m., ten Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans in such requested currency.
(c)
Any failure by a Tranche A Lender to respond to such request within
the time period specified in the preceding sentence shall be deemed
to be a refusal by such Lender to permit Eurocurrency Rate Loans to
be made in such requested currency. If the Administrative
Agent and all the Tranche A Lenders consent to making Eurocurrency
Rate Loans in such requested currency, the Administrative Agent
shall so notify the Borrower and such currency shall thereupon be
deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Borrowings of Eurocurrency Rate Loans. If the
Administrative Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.05 ,
the Administrative Agent shall promptly so notify the
Borrower.
1.09
Change of Currency .
(a)
Each obligation of the Borrower to make a payment denominated in
the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such
adoption (in accordance with the EMU Legislation). If, in
relation to the currency of any such member state, the basis of
accrual of interest
24
expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in
the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such
member state adopts the Euro as its lawful currency;
provided that if any Borrowing in the currency of such
member state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Borrowing, at
the end of the then current Interest Period.
(b)
Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may
from time to time specify to be appropriate to reflect the adoption
of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the
Euro.
(c)
Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Administrative Agent may
from time to time specify to be appropriate to reflect a change in
currency of any other country and any relevant market conventions
or practices relating to the change in currency.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Revolving Loans .
(a)
Subject to the terms and conditions set forth herein, each Tranche
A Lender severally agrees to make loans (each such loan, a “
Tranche A Revolving Loan ”) to the Borrower in Dollars
or one or more Alternative Currencies from time to time on any
Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of such
Lender’s Tranche A Revolving Commitment; provided ,
however , that after giving effect to any Borrowing of
Tranche A Revolving Loans, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, (ii) the
aggregate Outstanding Amount of the Tranche A Revolving Loans of
any Tranche A Lender shall not exceed such Lender’s Tranche A
Revolving Commitment, (iii) the aggregate Outstanding Amount of all
Tranche A Revolving Loans shall not exceed the Aggregate Tranche A
Revolving Commitment and (iv) the aggregate Outstanding Amount of
all Tranche A Revolving Loans denominated in Alternative Currencies
shall not exceed the Alternative Currency Sublimit. Within
the limits of each Tranche A Lender’s Tranche A Revolving
Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01(a) , prepay
under Section 2.05 , and reborrow under this Section
2.01(a) . Tranche A Revolving Loans may be Base Rate
Loans or Eurocurrency Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be
made as Base Rate Loans.
(b)
Subject to the terms and conditions set forth herein, each Tranche
B Lender severally agrees to make loans (each such loan, a “
Tranche B Revolving Loan ” and together with the
Tranche A Revolving Loan, the “ Revolving Loans
”) to the Borrower in Dollars from time to time on any
Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of such
Lender’s Tranche B Revolving Commitment; provided ,
however , that after giving effect to any Borrowing of
Tranche B Revolving Loans, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, (ii) the
aggregate Outstanding Amount of the Tranche B Revolving Loans of
any Lender, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (iii) the aggregate Outstanding Amount of all
Tranche B Revolving Loans, Swing Line Loans and L/C Obligations
shall not exceed the
25
Aggregate Tranche B Revolving Commitment.
Within the limits of each Tranche B Lender’s Tranche B
Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01(b) ,
prepay under Section 2.05 , and reborrow under this
Section 2.01(b) . Tranche B Revolving Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein, provided, however, all Borrowings made on the Closing Date
shall be made as Base Rate Loans.
2.02
Borrowings, Conversions and Continuations of Revolving Loans
.
(a)
Each Borrowing, each conversion of Revolving Loans from one Type to
the other, and each continuation of Eurocurrency Rate Loans shall
be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone. Each
such notice must be received by the Administrative Agent not later
than 11:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation
of Eurocurrency Rate Loans denominated in Dollars or of any
conversion of Eurocurrency Rate Loans denominated in Dollars to
Base Rate Loans, (ii) four Business Days prior to the
requested date of any Borrowing or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, and (iii) on
the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this
Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.
Except as provided in Sections 2.03(c) and
2.04(c) , each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each such Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower
is requesting a Borrowing, a conversion of Revolving Loans from one
Type to the other, or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Revolving Loans to be borrowed,
converted or continued, (iv) the Type of Revolving Loans to be
borrowed or to which existing Loans are to be converted,
(v) if applicable, the duration of the Interest Period with
respect thereto, and (vi) the currency of the Revolving Loans
to be borrowed. If the Borrower fails to specify a currency
in a Loan Notice requesting a Borrowing, then the Revolving Loans
so requested shall be made in Dollars. If the Borrower fails
to specify a Type of Revolving Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans; provided , however ,
that in the case of a failure to timely request a continuation of
Revolving Loans denominated in an Alternative Currency, such
Revolving Loans shall be continued as Eurocurrency Rate Loans in
their original currency with an Interest Period of one month.
Any automatic conversion to Base Rate Loans shall be effective as
of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Revolving Loan may be
converted into or continued as a Revolving Loan denominated in a
different currency, but instead must be prepaid in the original
currency of such Revolving Loan and reborrowed in the other
currency.
(b)
Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount (and currency) of its
Applicable Percentage of the applicable Revolving Loans, and if no
timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans or
continuation of Loans denominated in a currency other than Dollars,
in each case as described in the preceding subsection. In the
case of a Borrowing, each Lender shall make the amount of its
Revolving Loan available to the Administrative Agent in Same Day
Funds at the Administrative Agent’s Office for the applicable
currency not later than 1:00 p.m., in the case of any
Revolving Loan denominated in Dollars,
26
and not later than the Applicable Time specified
by the Administrative Agent in the case of any Revolving Loan in an
Alternative Currency, in each case on the Business Day specified in
the applicable Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 5.02 (and,
if such Borrowing is the initial Credit Extension,
Section 5.01 ), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with
the amount of such funds or (ii) wire transfer of such funds,
in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower;
provided , however , that if, on the date the Loan
Notice with respect to such Borrowing denominated in Dollars is
given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, shall be applied to the payment in
full of any such L/C Borrowings.
(c)
Except as otherwise provided herein, a Revolving Loan made as a
Eurocurrency Rate Loan may be continued or converted only on the
last day of the Interest Period for such Eurocurrency Rate
Loan. During the existence of a Default, (i) no Revolving
Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required
Lenders, (ii) the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans be converted
immediately to Base Rate Loans, and (iii) the Tranche A Required
Lenders may demand that any or all of the then outstanding
Eurocurrency Rate Loans denominated in an Alternative Currency be
prepaid, or redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest
Period with respect thereto.
(d)
The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for
Eurocurrency Rate Loans upon determination of such interest
rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of
any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public
announcement of such change.
(e)
After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Revolving
Loans as the same Type, there shall not be more than ten (10)
Interest Periods in effect.
2.03
Letters of Credit .
(a)
The Letter of Credit Commitment .
(i)
Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Tranche B
Lenders set forth in this Section 2.03 , (1) from time to
time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of
Credit in Dollars for the account of the Borrower or any of its
Subsidiaries, and to amend or extend Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Tranche B
Lenders severally agree to participate in Letters of Credit issued
for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit, (w)
the Total Revolving Outstandings shall not exceed the Aggregate
Revolving Commitments, (x) the aggregate Outstanding Amount of the
Tranche B Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Tranche B Revolving Commitment, (y)
the aggregate Outstanding Amount of all Tranche B Revolving Loans,
Swing Line Loans and L/C Obligations shall not exceed
the
27
aggregate Tranche B Revolving
Commitment and (z) the Outstanding Amount of the L/C Obligations
shall not exceed the Letter of Credit Sublimit. Each request
by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof,
the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions
hereof.
(ii)
The L/C Issuer shall not issue any Letter of Credit if:
(A)
subject to Section 2.03(b)(iii) , the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance or last extension, unless the Tranche B
Required Lenders have approved such expiry date; or
(B)
the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Tranche
B Lenders have approved such expiry date.
(iii)
The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A)
any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C
Issuer in good faith deems material to it;
(B)
the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer;
(C)
except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less
than $25,000;
(D)
such Letter of Credit is to be denominated in a currency other than
Dollars;
(E)
such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder;
or
(F)
a default of any Tranche B Lender’s obligations to fund under
Section 2.03(c) exists or any Tranche B Lender is at such
time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower
or
28
such Tranche B Lender to eliminate
the L/C Issuer’s risk with respect to such Tranche B
Lender.
(iv)
The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.
(v)
The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does
not accept the proposed amendment to such Letter of
Credit.
(vi)
The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in
Article X with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Article X
included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C
Issuer.
(b)
Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit .
(i)
Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter
of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least five (5)
Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to
the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer
may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.
(ii)
Promptly after receipt of any Letter of Credit Application, the L/C
Issuer will confirm with the Administrative Agent (by telephone or
in writing) that the Administrative Agent has received a copy of
such Letter of Credit Application from the Borrower and, if not,
the L/C Issuer will provide the Administrative Agent with a copy
thereof. Unless the L/C Issuer has
29
received written notice from any
Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment
of the applicable Letter of Credit, that one or more applicable
conditions contained in Article V shall not be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or the applicable Subsidiary or enter into
the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of
Credit, each Tranche B Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Tranche B Lender’s Applicable
Percentage times the amount of such Letter of
Credit.
(iii)
If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “ Auto-Extension Letter of
Credit ”); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “
Non-Extension Notice Date ”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the
L/C Issuer for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date;
provided , however , that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.03(a) or otherwise), or
(B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that
the Tranche B Required Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in
Section 5.02 is not then satisfied, and in each case
directing the L/C Issuer not to permit such extension.
(iv)
Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c)
Drawings and Reimbursements; Funding of Participations
.
(i)
Upon receipt from the beneficiary of any Letter of Credit of any
notice of drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an “ Honor
Date ”), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount
of such drawing. If the Borrower fails to so reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly
notify each Tranche B Lender of the Honor Date, the amount of the
unreimbursed drawing (the “ Unreimbursed Amount
”), and the amount of such Tranche B Lender’s
Applicable Percentage thereof. In such event, the Borrower
shall be deemed to have requested a Borrowing of a Tranche B
Revolving Loan that is a Base Rate Loan to be disbursed
30
on the Honor Date in an amount equal
to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount
of Base Rate Loans, but subject to the conditions set forth in
Section 5.02 (other than the delivery of a Loan Notice) and
provided that, after giving effect to such Borrowing, (x) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments and (y) the Outstanding Amount of all Tranche B
Revolving Loans and L/C Obligations shall not exceed the Aggregate
Tranche B Revolving Commitment. Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed
in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect
of such notice.
(ii)
Each Tranche B Lender shall upon any notice pursuant to
Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii) , each Tranche B Lender that so makes
funds available shall be deemed to have made a Tranche B Revolving
Loan that is a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the
L/C Issuer.
(iii)
With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of a Tranche B Revolving Loan that is a
Base Rate Loan because the conditions set forth in Section
5.02 cannot be satisfied or for any other reason, the Borrower
shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default
Rate. In such event, each Tranche B Lender’s payment to
the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Tranche B Lender in satisfaction of its
participation obligation under this Section 2.03
.
(iv)
Until each Tranche B Lender funds its Tranche B Revolving Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse
the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Tranche B Lender’s Applicable
Percentage of such amount shall be solely for the account of the
L/C Issuer.
(v)
Each Tranche B Lender’s obligation to make Tranche B
Revolving Loans or L/C Advances to reimburse the L/C Issuer for
amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c) , shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided ,
however , that each Tranche B Lender’s obligation to
make Tranche B Revolving Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section
5.02 (other than delivery by the Borrower of a Loan
Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided
herein.
(vi)
If any Tranche B Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Tranche B Lender pursuant
31
to the foregoing provisions of this
Section 2.03(c) by the time specified in Section
2.03(c)(ii) , the L/C Issuer shall be entitled to recover from
such Tranche B Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal
to the Overnight Rate. A certificate of the L/C Issuer
submitted to any Tranche B Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi)
shall be conclusive absent manifest error.
(d)
Repayment of Participations .
(i)
At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Tranche B Lender such
Tranche B Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c) , if the Administrative
Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including
proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Tranche B
Lender its Applicable Percentage thereof (appropriately adjusted,
in the case of interest payments, to reflect the period of time
during which such Tranche B Lender’s L/C Advance was
outstanding) in the same funds as those received by the
Administrative Agent.
(ii)
If any payment received by the Administrative Agent for the account
of the L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in
Section 11.05 (including pursuant to any settlement entered
into by the L/C Issuer in its discretion), each Tranche B Lender
shall pay to the Administrative Agent for the account of the L/C
Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Tranche B
Lender, at a rate per annum equal to the Overnight Rate from time
to time in effect. The obligations of the Tranche B Lenders
under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
(e)
Obligations Absolute . The obligation of the Borrower
to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including the following:
(i)
any lack of validity or enforceability of such Letter of Credit,
this Agreement or any other Loan Document;
(ii)
the existence of any claim, counterclaim, setoff, defense or other
right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(iii)
any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make
a drawing under such Letter of Credit;
32
(iv)
any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made
by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law;
or
(v)
any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a
discharge of, the Borrower or any Subsidiary.
The Borrower shall promptly examine
a copy of each Letter of Credit and each amendment thereto that is
delivered to it and, in the event of any claim of noncompliance
with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower
shall be conclusively deemed to have waived any such claim against
the L/C Issuer and its correspondents unless such notice is given
as aforesaid.
(f)
Role of L/C Issuer . Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly
required by such Letter of Credit) or to ascertain or inquire as to
the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of
the L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to
any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided , however , that this assumption is not
intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the
L/C Issuer, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section
2.03(e) ; provided , however , that anything in
such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to
the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C
Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft
and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit unless the L/C Issuer is prevented or
prohibited from so paying as a result of any order or directive of
any court or other Governmental Authority. In furtherance and
not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice
or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
(g)
Cash Collateral . Upon the request of the
Administrative Agent, (i) if the L/C Issuer has honored any full or
partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any
reason
33
remains outstanding, the Borrower shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations. Sections 2.05 and 9.02(c)
set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section
2.03 , Section 2.05 and Section 9.02(c) , “
Cash Collateralize ” means to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C
Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative
Agent, for the benefit of the L/C Issuer and the Tranche B Lenders,
a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.
(h)
Applicability of ISP . Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit
is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter
of Credit.
(i)
Letter of Credit Fees . The Borrower shall pay to the
Administrative Agent for the account of each Tranche B Lender in
accordance with its Applicable Percentage a Letter of Credit fee
(the “ Letter of Credit Fee ”) for each Letter
of Credit equal to 1.50% per annum times the daily maximum
amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06 . Letter of
Credit Fees shall be (i) computed on a quarterly basis in
arrears and (ii) due and payable on the first Business Day after
the end of each March, June, September and December, commencing
with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter
on demand. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders while any Event of
Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j)
Documentary and Processing Charges Payable to L/C Issuer .
The Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges
are due and payable on demand and are nonrefundable.
(k)
Conflict with Issuer Documents . In the event of any
conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.
(l)
Letters of Credit Issued for Subsidiaries .
Notwithstanding that a Letter of Credit issued or outstanding
hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Borrower shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that
the issuance of Letters of Credit for the account of Subsidiaries
inures to the benefit of the Borrower, and that the
Borrower’s business derives substantial benefits from the
businesses of such Subsidiaries.
2.04
Swing Line Loans .
(a)
Swing Line Facility . Subject to the terms and
conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Tranche B Lenders set
forth in this Section 2.04 , to make loans (each such loan,
a “ Swing Line Loan ”) to the Borrower in
Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans,
34
when aggregated with the Applicable Percentage
of the Outstanding Amount of Tranche B Revolving Loans and L/C
Obligations of the Swing Line Lender in its capacity as a Tranche B
Revolving Lender may exceed the amount of such Lender’s
Tranche B Revolving Commitment; provided , however ,
that after giving effect to any Swing Line Loan, (x) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, (y) the aggregate Outstanding Amount of the Tranche B
Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Tranche B Revolving Commitment and (z) the
aggregate Outstanding Amount of all Tranche B Revolving Loans,
Swing Line Loans and L/C Obligations shall not exceed the aggregate
Tranche B Revolving Commitment, and provided ,
further , that the Borrower shall not use the proceeds of
any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Borrower may borrow under this
Section 2.04 , prepay under Section 2.05 , and
reborrow under this Section 2.04 . Each Swing Line
Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Tranche B Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Lender a risk participation in such Swing Line Loan in
an amount equal to the product of such Tranche B Lender’s
Applicable Percentage times the amount of such Swing Line
Loan.
(b)
Borrowing Procedures . Each Borrowing of Swing Line
Loans shall be made upon the Borrower’s irrevocable notice to
the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00
p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum principal amount of
$50,000 and integral multiples of $50,000 in excess thereof, and
(ii) the requested borrowing date, which shall be a Business
Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent
of a written Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt
by the Swing Line Lender of any telephonic Loan Notice, the Swing
Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also
received such Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00
