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PRIMEDIA INC | BANK OF AMERICA, N.A., | THE BANK OF NEW YORK, | THE BANK OF NOVA SCOTIA, | CITIBANK, N.A. | JPMORGAN CHASE BANK, N.A.,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 99.1
CREDIT AGREEMENT
among
PRIMEDIA INC.,
VARIOUS LENDING INSTITUTIONS,
BANK OF AMERICA, N.A.,
as SYNDICATION AGENT,
THE BANK OF NEW YORK,
and
THE BANK OF NOVA SCOTIA,
and
CITIBANK, N.A.
as CO-DOCUMENTATION AGENTS,
and
JPMORGAN CHASE BANK, N.A.,
as ADMINISTRATIVE AGENT
Dated as of June 20, 2001
and
amended and restated as of September 30, 2005
J.P. MORGAN SECURITIES INC.
Table of Contents
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CREDIT AGREEMENT, dated as of June 20, 2001 and amended and restated as of September 30, 2005, among PRIMEDIA INC., a Delaware corporation (the “Borrower”), the lending institutions listed from time to time on Annex I hereto (each a “Bank” and, collectively, the “Banks”), BANK OF AMERICA, N.A., as Syndication Agent (the “Syndication Agent”), THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA and CITIBANK, N.A., as Co-Documentation Agents, and JPMORGAN CHASE BANK, N.A. (f/k/a/ The Chase Manhattan Bank), as Administrative Agent (the “Administrative Agent”). Unless otherwise defined herein, all capitalized terms used herein and defined in Section 10 are used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Syndication Agent, the Co-Documentation Agents, the Administrative Agent and various lending institutions have entered into a Credit Agreement, dated as of June 20, 2001 (as amended, modified and supplemented to but excluding the Restatement Effective Date (as defined below), the “Original Credit Agreement”); and
WHEREAS, the parties hereto desire to amend and restate the Original Credit Agreement on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.1.01 Commitments . (a) [Reserved]
(b) Subject to and upon the terms and conditions set forth herein, each Bank with a Term Loan B Commitment severally agrees to make, on the Restatement Effective Date, a term loan or term loans (each a “Term Loan B” and, collectively, the “Term Loans B”) to the Borrower, which Term Loans B (i) shall be made pursuant to a single drawing, (ii) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans, provided that all Term Loans B made as part of the same Borrowing shall, unless otherwise specifically provided herein, consist of Term Loans B of the same Type, and (iii) shall equal for each Bank, in initial aggregate principal amount, that amount which equals the Term Loan B Commitment of such Bank on the Restatement Effective Date (before giving effect to the termination thereof on such date pursuant to Section 3.03(b)). Once repaid, Term Loans B incurred hereunder may not be reborrowed.
The Borrower, the Administrative Agent, each Rollover Bank and each other Bank, hereby agree that (A) to the extent any Rollover Bank holds Existing Term Loans in an aggregate principal amount equal to or less than such Rollover Bank’s Term Loan B Commitment immediately prior to the Restatement Effective Date, such Rollover Bank may, in its sole discretion, by giving notice to the Borrower and the Administrative Agent no later than 12:00 P.M. (New York time) on September 28, 2005, fund all or a portion of the aggregate principal amount of its Term Loan B Commitment on the Restatement Effective Date by converting all of its Existing Term Loans into a Term Loan B up to the amount of such Rollover Bank’s Term Loan B Commitment on the Restatement Effective Date, (B) all Existing Term Loans of each Rollover Bank shall be retained by the Borrower in an amount equal to the amount such Rollover Bank elects to convert into a Term Loan B pursuant to clause (A) above and
thereupon constitute, for all purposes under this Agreement and each other Credit Document, Term Loans B made hereunder on the Restatement Effective Date and (C) on the Restatement Effective Date and to the extent necessary to fund the entire amount of such Rollover Bank’s Term Loan B Commitment, each such Rollover Bank shall make an additional Term Loan B in an aggregate principal amount equal to the excess of (I) its Term Loan B Commitment over (II) the aggregate outstanding principal amount of its Existing Term Loans retained by the Borrower pursuant to clause (B) above.
(c) Subject to and upon the terms and conditions herein set forth, each Bank with a Revolving Loan Commitment severally agrees at any time and from time to time on and after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each a “ Revolving Loan” and, collectively, the “ Revolving Loans”) to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans, provided that all Revolving Loans made as part of the same Borrowing shall, unless otherwise specifically provided herein, consist of Revolving Loans of the same Type, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed for any Bank at any time outstanding that aggregate principal amount which, when combined with such Bank’s Adjusted Percentage, if any, of the sum of (x) the Letter of Credit Outstandings at such time plus (y) the outstanding principal amount of Swingline Loans at such time, equals (1) if such Bank is a Non-Defaulting Bank, the Adjusted Revolving Loan Commitment of such Bank at such time and (2) if such Bank is a Defaulting Bank, the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Swingline Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, an amount equal to the Total Revolving Loan Commitment at such time.
(d) Subject to and upon the terms and conditions herein set forth, Chase in its individual capacity agrees to make, at any time and from time to time on and after the Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and the Letter of Credit Outstandings at such time, an amount equal to the Adjusted Total Revolving Loan Commitment then in effect (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date) and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount. Chase will not make a Swingline Loan after it has received written notice from the Required Banks that one or more of the applicable conditions to Credit Events specified in Section 5 are not then satisfied.
(e) On any Business Day, Chase may, in its sole discretion, give notice to the Banks that its outstanding Swingline Loans shall be funded with a Borrowing of Revolving Loans ( provided that each such notice shall be deemed to have been automatically given upon the occurrence of an Event of Default under Section 9.05), in which case a Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all Banks with a
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Revolving Loan Commitment pro rata based on each Bank’s Adjusted Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 9), and the proceeds thereof shall be applied directly to repay Chase for such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to make Base Rate Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by Chase notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 5 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing and (v) any reduction in the Total Revolving Loan Commitment or Adjusted Total Revolving Loan Commitment after any such Swingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), then each such Bank (other than Chase) hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from Chase (without recourse or warranty other than that such Swingline Loans are free and clear of any Liens) such assignment of the outstanding Swingline Loans as shall be necessary to cause such Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 9), provided that all interest payable on the Swingline Loans shall be for the account of Chase until the date the respective assignment is purchased and, to the extent attributable to the purchased assignment, shall be payable to the Bank purchasing same from and after such date of purchase. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Banks pursuant to Section 1.10(c)(ii) or 12.04(b), or upon the occurrence of a Bank Default, it is hereby agreed that, with respect to all outstanding Swingline Loans, there shall be an automatic adjustment to the participations pursuant to this Section 1.01(e) to reflect the new Adjusted Percentages of the assigning and assignee Banks or of all Non-Defaulting Banks, as the case may be.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of each Borrowing shall not be less than the Minimum Borrowing Amount for such Loans. More than one Borrowing may be incurred on any day, provided that at no time shall there be outstanding more than 25 Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing . (a) Whenever the Borrower desires to incur Loans hereunder (excluding Swingline Loans and Revolving Loans incurred pursuant to a Mandatory Borrowing), it shall give the Administrative Agent at its Notice Office, prior to 1:00 P.M. (New York time), at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar Loans and at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Base Rate Loans to be incurred hereunder; provided that notwithstanding the foregoing, Term Loans B made on the Restatement Effective Date may be incurred by the Borrower as Eurodollar Loans so long as it the gives the Administrative Agent at its Notice Office, prior to 1:00 P.M. (New York time) on the Restatement Effective Date notice of such Borrowing. Each such notice (each, together with each notice referred to in Section 1.03(b)(i), a “Notice of Borrowing”),
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except as otherwise expressly provided in Section 1.10, shall be irrevocable, and, in the case of each written notice and each confirmation of telephonic notice, shall be in the form of Exhibit A, appropriately completed to specify (i) whether the Loans being incurred pursuant to such Borrowing shall consist of Term Loans B or Revolving Loans, (ii) the aggregate principal amount of such Loans to be made pursuant to such Borrowing, (iii) the date of such Borrowing (which shall be a Business Day) and (iv) whether the respective Borrowing shall consist of Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall promptly give each Bank which is required to make Loans pursuant to the Borrowing specified in the respective Notice of Borrowing written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing, of such Bank’s proportionate share thereof, if any, and of the other matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur a Borrowing of Swingline Loans hereunder, it shall give Chase no later than 12:00 Noon (New York time) on the day such Swingline Loan is to be made, written notice (or telephonic notice promptly confirmed in writing) of each Swingline Loan to be incurred hereunder. Each such Notice of Borrowing shall be irrevocable and shall specify in each case (x) the date of such Borrowing (which shall be a Business Day) and (y) the aggregate principal amount of the Swingline Loans to be incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(c) Without in any way limiting the obligation of the Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent, Chase (in the case of a Borrowing of Swingline Loans) or the Letter of Credit Issuer (in the case of the issuance of Letters of Credit), as the case may be, may prior to receipt of written confirmation act without liability upon the basis of such telephonic notice, believed by the Administrative Agent, Chase or the Letter of Credit Issuer, as the case may be, in good faith to be from the chairman, a vice chairman, the president, the chief financial officer, the treasurer, an assistant treasurer, the supervisor, cash management or a director of treasury operations of the Borrower. In each such case, the Borrower hereby waives the right to dispute the Administrative Agent’s, Chase’s or the Letter of Credit Issuer’s record of the terms of such telephonic notice.
1.04 Disbursement of Funds . (a) No later than 1:00 P.M. (New York time) on the date specified in each Notice of Borrowing relating to any Loans (or (x) in the case of Swingline Loans, no later than 2:00 P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than 12:00 Noon (New York time) on the date specified in Section 1.01(e)), each Bank with a Commitment under the respective Tranche will make available its Pro Rata Share (if any) of each Borrowing of Loans requested to be made on such date in the manner provided below (or, in the case of Swingline Loans, Chase will make available the full amount thereof). All such amounts shall be made available to the Administrative Agent in U.S. Dollars and immediately available funds at the Payment Office and the Administrative Agent promptly will make available to the Borrower by depositing to its account at the Payment Office the aggregate of the amounts so made available in
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the type of funds received (other than in respect of Mandatory Borrowings). Unless the Administrative Agent shall have been notified by any Bank prior to the date of Borrowing of any Loans referred to in this Section 1.04(a) that such Bank does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Bank has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Bank and the Administrative Agent has made available same to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Bank. If such Bank does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from such Bank or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the overnight Federal Funds Effective Rate or (y) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 1.08, for the respective Loans. Nothing herein shall be deemed to relieve any Bank from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Borrower may have against any Bank as a result of any failure by such Bank to make Loans hereunder.
1.05 Register . (a) The Administrative Agent shall maintain a register for the recordation of the Commitments of the Banks from time to time and the principal amount of the Term Loans B, Revolving Loans and Swingline Loans owing to each Bank (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(b) The Borrower hereby agrees to provide a Note, promptly upon the request of any Bank, to the extent such Bank has requested such Note in connection with any pledge or assignment by such Bank of any or all of its Loans hereunder to a Federal Reserve Bank.
1.06 Conversions . The Borrower shall have the option to convert on any Business Day all or a portion at least equal to the applicable Minimum Borrowing Amount of the outstanding principal amount of the Loans (other than Swingline Loans, which at all times shall be maintained as Base Rate Loans) owing by the Borrower into a Borrowing or Borrowings of another Type of Loan; provided that (i) no such partial conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans may not be converted into Eurodollar Loans if a Default or Event of Default is in existence and the Administrative Agent and/or the Required Banks have notified the Borrower that such a conversion will not be permitted as a result thereof and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be limited in number as provided in Section 1.02. Each such conversion shall be effected by the Borrower by giving the Administrative Agent at its
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Notice Office, prior to 1:00 P.M. (New York time), at least three Business Days (or one Business Day in the case of a conversion into Base Rate Loans) prior written notice (or telephonic notice promptly confirmed in writing) (each a “Notice of Conversion”) specifying the Loans to be so converted, the Type of Loans to be converted into and, if to be converted into a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each Bank prompt notice of any such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings . All Borrowings of Term Loans B and Revolving Loans under this Agreement shall be made by the Banks pro rata on the basis of their Term Loan B Commitments or Revolving Loan Commitments, as the case may be, provided that all Borrowings of Revolving Loans made pursuant to a Mandatory Borrowing shall be incurred from the Banks with Revolving Loan Commitments pro rata on the basis of their Adjusted Percentages. It is understood that no Bank shall be responsible for any default by any other Bank of its obligation to make Loans hereunder and that each Bank shall be obligated to make the Loans to be made by it hereunder, regardless of the failure of any other Bank to make its Loans hereunder.
1.08 Interest . (a) The unpaid principal amount of each Base Rate Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum which shall at all times be the Applicable Margin (or, in the case of Term Loans B, the Applicable Term Loan B Margin) plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum which shall at all times be the Applicable Margin (or, in the case of Term Loans B, the Applicable Term Loan B Margin) plus the relevant Eurodollar Rate.
(c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan shall bear interest at a rate per annum equal to the Base Rate in effect from time to time plus the sum of (i) 2% and (ii) the Applicable Margin (or, in the case of Term Loans B, the Applicable Term Loan B Margin) for Base Rate Loans; provided that principal in respect of Eurodollar Loans shall bear interest after the same becomes due (whether by acceleration or otherwise) until the end of the applicable Interest Period for such Eurodollar Loan at a per annum rate equal to 2% in excess of the rate of interest applicable on the due date therefor.
(d) Interest shall accrue from and including the date of any Borrowing to, but excluding the date of any repayment thereof and shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three month intervals after the first day of such Interest Period and (iii) in respect of each Loan, on any prepayment or conversion (on the amount prepaid or converted), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.
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(e) All computations of interest hereunder shall be made in accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify the Borrower and the Banks thereof.
1.09 Interest Periods . At the time the Borrower gives a Notice of Borrowing or Notice of Conversion in respect of the making of, or conversion into, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period applicable thereto) or prior to 1:00 P.M. (New York time) on the third Business Day prior to the expiration of an Interest Period applicable to a Borrowing of Eurodollar Loans, it shall have the right to elect by giving the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of the Interest Period applicable to such Borrowing, which Interest Period shall, at the option of the Borrower, be a one, two, three, six or, if available to each of the Banks (as determined by each such Bank in good faith based on prevailing conditions in the interbank Eurodollar market on any date of determination thereof) nine or twelve month period (or if agreed to by each Bank in the respective Tranche, such other period as requested by the Borrower). Notwithstanding anything to the contrary contained above:
(i) unless otherwise requested by the Borrower and agreed to by each Bank in the respective Tranche, the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of Base Rate Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period applicable thereto expires;
(ii) if any Interest Period begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day, provided that if any Interest Period would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period for a Borrowing under any Tranche of Loans shall be elected which would extend beyond the respective Maturity Date for such Tranche; and
(v) no Interest Period may be elected at any time when a Default or Event of Default is then in existence and the Administrative Agent and/or the Required Banks have notified the Borrower that such an election will not be permitted as a result thereof.
If upon the expiration of any Interest Period, the Borrower has failed to elect a new Interest Period to be applicable to the respective Borrowing of Eurodollar Loans as provided above, or a Default or an Event of Default then exists and the Administrative Agent and/or the Required Banks have given the notice referred to in clause (v) above, the Borrower shall be deemed to
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have elected to convert such Borrowing into a Borrowing of Base Rate Loans effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Bank, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest Period that, by reason of any changes arising after the date of this Agreement affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loans because of (x) any change since the date of this Agreement in any applicable law, governmental rule, regulation, guideline, order or request (whether or not having the force of law), or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, guideline, order or request such as, for example, but not limited to, (A) a change since the Effective Date in the basis of taxation of payment to any Bank of the principal of or interest on the Loans or any other amounts payable hereunder (except for changes with respect to Taxes and those taxes described in clauses (x) and (y) of the proviso in the second sentence of Section 4.04) or (B) a change since the Effective Date in official reserve requirements, but, in all events, excluding reserves required under Regulation D to the extent included in the computation of the Eurodollar Rate and/or (y) other circumstances affecting such Bank, the interbank Eurodollar market or the position of such Bank in such market; or
(iii) at any time since the Effective Date, that the making or continuance of any Eurodollar Loan has become unlawful by compliance by such Bank in good faith with any law, governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law but with which such Bank customarily complies even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case of clause (i) above) shall (x) on such date and (y) within 10 Business Days of the date on which such event no longer exists give notice (by telephone confirmed in writing) to the Borrower and (except in the case of clause (i)) to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Banks that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans which have not yet been incurred shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
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Borrower agrees to pay to such Bank, upon written demand therefor (accompanied by the written notice referred to below), such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Bank in its sole discretion shall determine) as shall be required to compensate such Bank for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Bank, showing the basis for the calculation thereof, submitted to the Borrower by such Bank shall, absent manifest error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 1.10(b) as promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the Borrower shall) either (i) if the affected Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof promptly (but in any event no later than the later of (x) the Business Day next preceding the date of such Borrowing and (y) one Business Day after the Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii)), or (ii) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Bank to convert each such Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the circumstances described in Section 1.10(a)(iii), shall occur no later than the last day of the Interest Period then applicable to such Eurodollar Loan (or such earlier date as shall be required by applicable law)); provided that if more than one Bank is affected at any time, then all affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) (i) If any Bank shall have determined that after the Effective Date, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Bank’s capital or assets as a consequence of its commitments or obligations hereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance (taking into consideration such Bank’s policies with respect to capital adequacy), then from time to time, within 15 days after demand by such Bank (with a copy to the Administrative Agent), accompanied by the notice referred to in the last sentence of this clause (i), the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction. Each Bank, upon determining in good faith that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth the basis of the calculation of such additional amounts, although the failure to give any such notice shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 1.10(c).
(ii) If (x) any Bank becomes a Defaulting Bank or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings, (y) any Bank has notified the Borrower that one of its Eurodollar Loans is affected by the circumstances described in Section 1.10(a)(ii)
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or (iii), or (z) any Bank is owed increased costs or other amounts under Section 1.10(c)(i), 2.06 or 4.04 and, in the case of such clause (y) or (z), compensation or other action with respect to such event is not otherwise requested generally by the other Banks, the Borrower shall have the right, if no Default or Event of Default then exists and, in the case of a Bank described in clause (y) or (z) above, such Bank has not changed its applicable lending office with the effect of eliminating such increased cost, to replace such Bank (the “Replaced Bank”) with another commercial bank or banks or other financial institutions (collectively, the “Replacement Bank”) reasonably acceptable to the Administrative Agent, and, in the case of any Replaced Bank with a Revolving Loan Commitment, the Letter of Credit Issuer, provided that (i) at the time of any replacement pursuant to this Section 1.10(c)(ii), the Replacement Bank shall enter into one or more assignment agreements pursuant to Section 12.04(b) hereof (and with all fees payable pursuant to said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the Replacement Bank shall acquire all of the Commitments and outstanding Loans of, and participations in Letters of Credit by, the Replaced Bank and, in connection therewith, shall pay to the Replaced Bank (or the Letter of Credit Issuer in the case of the proviso contained in clause (b) below or Chase in the case of clause (d) below) in respect thereof an amount equal to the sum of (a) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Replaced Bank, (b) an amount equal to the sum of such Replaced Bank’s Adjusted Percentage (for this purpose, determined as if the adjustment described in clause (y) of the immediately succeeding sentence had been made with respect to such Replaced Bank) of all Unpaid Drawings and all then unpaid interest with respect thereto at such time, provided that in the event such Replaced Bank did not reimburse the Letter of Credit Issuer pursuant to Section 2.05(c) in respect of any Unpaid Drawing, such amount shall instead be paid to the Letter of Credit Issuer, (c) an amount equal to any unpaid obligation of the Replaced Bank pursuant to Section 1.01(e), which amount shall be paid to Chase, and (d) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01 hereof and (ii) all obligations of the Borrower owing to the Replaced Bank (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Bank concurrently with such replacement. Upon the execution of the respective assignment documentation pursuant to clause (i) above and the payment of amounts referred to in clauses (i) above and (ii) above, (x) the Replacement Bank shall become a Bank or Banks hereunder, as the case may be, and the Replaced Bank shall cease to constitute a Bank hereunder, except with respect to indemnification provisions (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 11.07 and 12.01 of this Agreement) under this Agreement, which shall survive as to such Replaced Bank and (y) the Adjusted Percentages of the Banks shall be automatically adjusted at such time to give effect to such replacement (and to give effect to the replacement of a Defaulting Bank with one or more Non-Defaulting Banks).
1.11 Compensation . The Borrower agrees to compensate each Bank in the appropriate currency, upon its written request (which request shall set forth the basis for requesting such compensation), for all reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Bank to fund its Eurodollar Loans but excluding loss of anticipated profit with respect to any Loans) which such Bank may sustain: (i) if for any reason (other than a default by such Bank or the Administrative Agent) a Borrowing of Eurodollar Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
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Section 1.10(a)); (ii) if any repayment, prepayment or conversion of any Eurodollar Loans occurs on a date which is not the last day of an Interest Period applicable thereto; (iii) if any prepayment of any Eurodollar Loans is not made on any date specified in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower to repay its Loans when required by the terms of this Agreement or (y) an election made pursuant to Section 1.10(b). Calculation of all amounts payable to a Bank under this Section 1.11 shall be made as though that Bank had actually funded its relevant Eurodollar Loan through the purchase of a Eurodollar deposit bearing interest at the Eurodollar Rate in an amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of that Bank to a domestic office of that Bank in the United States of America; provided , however , that each Bank may fund each of its Eurodollar Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 1.11.
1.12 Change of Lending Office . Each Bank agrees that, upon the occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c)(i), 2.06 or 4.04 with respect to such Bank, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Bank) to designate another lending office for any Loans or Letters of Credit affected by such event; provided that such designation is made on such terms that in the sole judgment of such Bank, such Bank and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequences of the event giving rise to the operation of any such Section. Nothing in this Section 1.12 shall affect or postpone any of the obligations of the Borrower or the right of any Bank provided in Sections 1.10, 2.06 or 4.04.
1.13 Incremental Loan Commitments . At any time and from time to time on and after the Restatement Effective Date and prior to the Term Loan B Maturity Date, the Borrower may request that one or more Banks or other lending institutions (each such lending institution, an “Incremental Loan Lending Institution”), as the case may be, (i) enter into commitments to make additional term loans as a Term Loan B, subject to all the terms and conditions set forth in this Credit Agreement and the other Credit Documents pertaining to Term Loans B, (ii) enter into commitments to make additional Revolving Loans, subject to all the terms and conditions set forth in this Credit Agreement and all other Credit Documents pertaining to Revolving Loans and Revolving Loan Commitments and/or (iii) enter into commitments to make new term loans, new revolving loans and/or new letters of credit pursuant to one or more new Tranches hereunder (any such commitment to make additional Term Loans B, Revolving Loans or other loans and/or letters of credit hereunder, an “Incremental Loan Commitment”); provided , that (A) solely with respect to any new Tranche of term loans, such new Tranche shall have an average life to maturity no shorter than the other Tranches (excluding Swingline Loans) taken as a whole, (B) solely with respect to any new Tranche of term loans, the final maturity of such new Tranche shall occur no earlier than six months after the Term Loan B Maturity Date, (C) no Incremental Loan Commitment may be added at a time when a Default or Event of Default exists, (D) the aggregate amount of any single Incremental Loan Commitment shall not be less than $25,000,000, (E) the aggregate amount of all Incremental Loan Commitments shall not exceed $300,000,000 and (F) solely with respect to any new Tranche of term loans, any such new Tranche that amortizes shall be subject to semi-annual amortization. Each Incremental Loan Commitment (whether constituting an addition to an existing Tranche or
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a new Tranche) shall be incorporated into this Agreement pursuant to a supplement or amendment hereto or an amendment and restatement hereof executed and delivered by the Borrower, the Administrative Agent and each Incremental Loan Lending Institution whose Commitment is increasing pursuant thereto, and such Persons are hereby authorized to enter into any such supplement, amendment or amendment and restatement (which shall be binding on all parties), to the extent necessary (but only to the extent necessary) to effect such Incremental Loan Commitment.
SECTION 2. Letters of Credit.2.01 Letters of Credit . (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request the Letter of Credit Issuer at any time and from time to time on or after the Initial Borrowing Date and prior to the Business Day next preceding the Revolving Loan Maturity Date to issue, for the account of the Borrower and in support of (x) trade obligations of the Borrower and/or its Restricted Subsidiaries and/or (y) on a standby basis, such other obligations (contingent or otherwise) of the Borrower and/or its Restricted Subsidiaries to any other Person, in each case, that arise in the ordinary course of business and are in respect of general corporate purposes (including, without limitation, in connection with Permitted Acquisitions) of the Borrower and/or its Restricted Subsidiaries, and subject to and upon the terms and conditions herein set forth the Letter of Credit Issuer agrees to issue from time to time, irrevocable letters of credit in such form as may be approved by the Letter of Credit Issuer and the Administrative Agent (each such letter of credit, a “Letter of Credit” and collectively, the “Letters of Credit”).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings at such time, would exceed either (x) $75,000,000 or (y) when added to the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks and Swingline Loans then outstanding, the Adjusted Total Revolving Loan Commitment at such time; (ii) each Letter of Credit shall have an expiry date occurring not later than two years after such Letter of Credit’s date of issuance, provided that standby Letters of Credit may provide that, absent notice to the contrary from the Letter of Credit Issuer to the beneficiary thereof, the expiry date shall be automatically extended for successive one year periods and (iii) no Letter of Credit shall have an expiry date occurring later than the Business Day next preceding the Revolving Loan Maturity Date.
(c) Annex VII attached hereto contains a description of all letters of credit issued or deemed issued and outstanding under the Existing Credit Agreements on the Initial Borrowing Date. Each such letter of credit, including any extension thereof (each, an “Existing Letter of Credit”) shall constitute a “Letter of Credit” for all purposes of this Agreement, issued, for purposes of Section 2.05(a), on the Initial Borrowing Date.
2.02 Minimum Stated Amount . The initial Stated Amount of each Letter of Credit shall be not less than $5,000 or such lesser amount acceptable to the Letter of Credit Issuer, provided that no more than 40 Letters of Credit (or such greater number acceptable to the Letter of Credit Issuer) shall be outstanding at any one time.
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2.03 Letter of Credit Requests; Notices of Issuance . (a) Whenever the Borrower desires that a Letter of Credit be issued, it shall give the Administrative Agent and the Letter of Credit Issuer written notice (or telephonic notice confirmed in writing) thereof prior to 12:00 Noon (New York time) at least five Business Days’ (or such shorter period as may be acceptable to the Letter of Credit Issuer) prior to the proposed date of issuance (which shall be a Business Day) (each a “Letter of Credit Request”), which Letter of Credit Request shall include an application for such Letter of Credit and any other documents that the Letter of Credit Issuer customarily requires in connection therewith. The Administrative Agent shall promptly notify each Bank of each Letter of Credit Request.
(b) The Letter of Credit Issuer shall, on the date of each issuance of a Letter of Credit by it or amendment thereto, give the Administrative Agent, each Bank and the Borrower written notice of the issuance or amendment of such Letter of Credit, accompanied by a copy to the Administrative Agent of the Letter of Credit or Letters of Credit issued by it or of the amendment thereto.
2.04 Agreement to Repay Letter of Credit Drawings . (a) The Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the Administrative Agent in immediately available funds at the Payment Office, for any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit issued by it (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”) no later than one Business Day following the date of such payment or disbursement, with interest on the amount so paid or disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but not including the date the Letter of Credit Issuer is reimbursed therefor at a rate per annum which shall be the Applicable Margin for Base Rate Loans that are Revolving Loans plus the Base Rate as in effect from time to time (plus an additional 2% per annum if not reimbursed by the third Business Day after the date of such payment or disbursement), such interest also to be payable on demand. The Letter of Credit Issuer shall provide the Borrower prompt notice of any payment or disbursement made by it under any Letter of Credit issued by it, although the failure of, or delay in, giving any such notice shall not release or diminish the obligations of the Borrower under this Section 2.04(a) or under any other Section of this Agreement.
(b) The Borrower’s obligation under this Section 2.04 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances, including, without limitation, those set forth in Section 2.05(e)(i) through (v), inclusive, and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Letter of Credit Issuer, the Administrative Agent or any Bank, including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such drawing; provided , however , that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.
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2.05 Letter of Credit Participations . (a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each other Bank with a Revolving Loan Commitment, and each such Bank (each a “Participant”) shall be deemed irrevocably and unconditionally to have purchased and received from such Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Bank’s Adjusted Percentage, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto (although Letter of Credit Fees shall be payable directly to the Administrative Agent for the account of the Banks as provided in Section 3.01(b) and the Participants shall have no right to receive any portion of any Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or Adjusted Percentages of the Banks pursuant to Section 1.10(c)(ii) or 12.04(b) or otherwise, or upon the occurrence of a Bank Default, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to the participations pursuant to this Section 2.05 to reflect the new Adjusted Percentages of the assigning and assignee Banks or of all Non-Defaulting Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall not have any obligation relative to the Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit and the Borrower shall not have reimbursed such amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such Participant’s Adjusted Percentage of such unreimbursed payment in U.S. Dollars and in same day funds; provided , however , that no Participant shall be obligated to pay to the Administrative Agent its Adjusted Percentage of such unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Administrative Agent so notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Participant’s Adjusted Percentage of the amount of such payment on such Business Day in same day funds. If and to the extent such Participant shall not have so made its Adjusted Percentage of the amount of such payment available to the Administrative Agent for the account of the Letter of Credit Issuer, such Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer its
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Adjusted Percentage of any payment under any Letter of Credit shall not relieve any other Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Adjusted Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Participant shall be responsible for the failure of any other Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer such other Participant’s Adjusted Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from the Participants pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant which has paid its Adjusted Percentage thereof, in U.S. Dollars and in same day funds, an amount equal to such Participant’s Adjusted Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Bank, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the 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;
(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.06 Increased Costs . If at any time after the Effective Date, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Letter of Credit Issuer or any Participant with any request or directive (whether or not having the force of law) by
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any such authority, central bank or comparable agency shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against Letters of Credit issued by the Letter of Credit Issuer or such Participant’s participation therein, or (ii) impose on the Letter of Credit Issuer or any Participant any other conditions affecting this Agreement, any Letter of Credit or such Participant’s participation therein; and the result of any of the foregoing is to increase the cost to the Letter of Credit Issuer or such Participant of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such Participant hereunder, then, upon demand to the Borrower by the Letter of Credit Issuer or such Participant (a copy of which notice shall be sent by the Letter of Credit Issuer or such Participant to the Administrative Agent), accompanied by the certificate described in the last sentence of this Section 2.06, the Borrower shall pay to the Letter of Credit Issuer or such Participant such additional amount or amounts as will compensate the Letter of Credit Issuer or such Participant for such increased cost or reduction. A certificate submitted to the Borrower by the Letter of Credit Issuer or such Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such Participant to the Administrative Agent), setting forth the basis for the determination of such additional amount or amounts necessary to compensate the Letter of Credit Issuer or such Participant as aforesaid shall be final and conclusive and binding on the Borrower absent manifest error, although the failure to deliver any such certificate shall not release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.06.
SECTION 3. Fees; Commitments.3.01 Fees . (a) The Borrower agrees to pay to the Administrative Agent for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment a commitment fee (the “Commitment Fee”) for the period from the Effective Date to but not including the date the Total Revolving Loan Commitment has been terminated, computed at a per annum rate equal to the Applicable Commitment Fee Percentage on the daily average Aggregate Unutilized Revolving Loan Commitment of such Non-Defaulting Bank. Accrued Commitment Fees shall be due and payable quarterly in arrears on the last Business Day of March, June, September and December of each year and the date upon which the Total Revolving Loan Commitment is terminated.
(b) The Borrower shall pay to the Administrative Agent for the account of each Non-Defaulting Bank with a Revolving Loan Commitment pro rata on the basis of their respective Adjusted Percentages, a fee in respect of each Letter of Credit (the “Letter of Credit Fee”) computed at a rate equal to the Applicable Letter of Credit Fee Percentage on the average daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December of each year and on the date upon which the Total Revolving Loan Commitment shall be terminated.
(c) The Borrower shall pay to the Administrative Agent for the account of the Letter of Credit Issuer a fee in respect of each Letter of Credit issued by it (the “Facing Fee”) computed at the rate of 1/4 of 1% per annum on the average daily Stated Amount of such Letter of Credit. Accrued Facing Fees shall be due and payable quarterly in arrears on the last Business
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Day of each March, June, September and December of each year and on the date upon which the Total Revolving Loan Commitment shall be terminated.
(d) The Borrower hereby agrees to pay directly to the Letter of Credit Issuer upon each issuance of, drawing under, and/or amendment of, a Letter of Credit issued by it such amount as shall at the time of such issuance, drawing or amendment be the administrative charge which the Letter of Credit Issuer is customarily charging for issuances of, drawings under or amendments of, letters of credit issued by it.
(e) The Borrower shall pay to the Administrative Agent and the Syndication Agent, for their own respective accounts, such other fees as have been agreed to in writing by the Borrower and the Administrative Agent or the Syndication Agent, respectively.
(f) All computations of Fees shall be made in accordance with Section 12.07(b).
3.02 Voluntary Reduction of Commitments . Upon at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at its Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Banks), the Borrower shall have the right, without premium or penalty, to terminate or partially reduce the Total Unutilized Revolving Loan Commitment; provided that (w) any such termination or partial reduction shall apply to proportionately and permanently reduce the Revolving Loan Commitment of each of the Banks with a Revolving Loan Commitment, (x) any partial reduction pursuant to this Section 3.02 shall be in the amount of at least $2,000,000, (y) the reduction to the Total Unutilized Revolving Loan Commitment shall in no case be in an amount which would cause the Revolving Loan Commitment of any Bank to be reduced (as required by the preceding clause (w)) by an amount which exceeds the remainder of (i) the Aggregate Unutilized Revolving Loan Commitment of such Bank as in effect immediately before giving effect to such reduction minus (ii) such Bank’s Adjusted Percentage of the aggregate principal amount of Swingline Loans then outstanding and (z) each reduction to the Total Revolving Loan Commitment pursuant to this Section 3.02 shall reduce the then remaining Scheduled Revolving Loan Commitment Reductions on a pro rata basis (based upon the then remaining principal amount of each such Scheduled Revolving Loan Commitment Reduction).
3.03 Mandatory Reduction of Commitments, etc . (a) Subject to Sections 3.02 and 3.03(d), the Total Revolving Loan Commitment (and the Revolving Loan Commitment of each Bank with such a Commitment) shall be permanently reduced on each date set forth below (provided that if any date set forth below is not a Business Day then the permanent reduction shall occur on the first Business Day immediately succeeding such date set forth below) (each a “Scheduled Revolving Loan Commitment Reduction Date”), in the amount set forth below opposite such date (each such reduction, as such reduction may have been reduced pursuant to Sections 3.02 and/or 3.03(d), a “Scheduled Revolving Loan Commitment Reduction”):
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(b) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total Term Loan B Commitment (and the Term Loan B Commitment of each Bank with such a Commitment) shall terminate on the Restatement Effective Date (after giving effect to the making of the Term Loans B on such date).
(c) The Total Revolving Loan Commitment (and the Revolving Loan Commitment of each Bank) shall terminate in its entirety on the earlier of (i) the date which is the earlier of (x) 30 days after any date on which a Specified Change of Control Event occurs and (y) the date on which any Senior Notes or any other Indebtedness of the Borrower or its Restricted Subsidiaries are required to be repurchased, redeemed or prepaid as a result of any such Specified Change of Control Event, and (ii) the Revolving Loan Maturity Date.
(d) With respect to any Asset Sale, (i) on the earliest of (x) the date occurring one year after the consummation of such Asset Sale, (y) the date, if any, following the date of consummation of such Asset Sale upon which the Administrative Agent, on behalf of the Required Banks, shall have delivered a written reinvestment termination notice to the Borrower, provided that such notice may only be given while an Event of Default exists, and (z) the date the Borrower or any of its Subsidiaries shall be required to make an offer to purchase Senior Notes or any other Indebtedness of the Borrower or its Restricted Subsidiaries (other than Indebtedness specifically relating to the assets sold in such Asset Sale) with the proceeds received in connection with such Asset Sale, and (ii) on any date after the earliest of the dates referred to in clause (i) above of receipt by the Borrower or any of its Restricted Subsidiaries of additional Net Cash Proceeds from such Asset Sale, in each case, the Total Revolving Loan Commitment shall be reduced and the aggregate principal amount of the Term Loans B shall be repaid in an aggregate amount equal to 100% of the then Remaining Net Cash Proceeds from such Asset Sale (with such Remaining Net Cash Proceeds to be applied first as a repayment of the aggregate principal amount of Term Loans B, and with all such Remaining Net Cash Proceeds to be applied as a reduction of the Total Revolving Loan Commitment after all of the Term Loans B have been paid in full). Each reduction to the Total Revolving Loan Commitment pursuant to this Section 3.03(d) shall reduce each of the remaining Scheduled Revolving Loan Commitment Reductions on a pro rata basis (based upon the then remaining amount of each such Scheduled Revolving Loan Commitment Reduction).
(e) Each reduction to the Total Term Loan B Commitment and the Total Revolving Loan Commitment pursuant to this Section 3.03 shall be applied proportionately to
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reduce the Term Loan B Commitment or the Revolving Loan Commitment, as the case may be, of each Bank with such a Commitment.
SECTION 4. Payments.4.01 Voluntary Prepayments . The Borrower shall have the right to prepay the Loans incurred by it, in whole or in part, without premium or penalty except as otherwise provided in this Agreement, from time to time on the following terms and conditions: (i) the Borrower shall give the Administrative Agent at the Notice Office written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay the Loans, whether such Loans are Term Loans B, Revolving Loans or Swingline Loans, the amount of such prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which notice shall be given by the Borrower prior to 12:00 Noon (New York time) (x) at least two Business Days prior to the date of such prepayment in the case of Term Loans B or Revolving Loans or (y) on the date of such prepayment in the case of Swingline Loans, which notice shall promptly be transmitted by the Administrative Agent to each of the Banks; (ii) (x) each partial prepayment of any Borrowing (other than a Borrowing of Swingline Loans) shall be in an aggregate principal amount of at least $1,000,000 and, if greater, in an integral multiple of $500,000, (y) each partial prepayment of any Borrowing of Swingline Loans shall be in an aggregate principal amount of at least $250,000 and, if greater, in an integral multiple of $50,000, provided that no partial prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate principal amount of the Loans outstanding pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto; (iii) each prepayment of Term Loans B pursuant to this Section 4.01 shall reduce the then remaining Scheduled TLB Repayments on a pro rata basis (based upon the then remaining principal amount of each such Scheduled TLB Repayment); and (iv) each prepayment in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; provided that at the Borrower’s election in connection with any prepayment of Revolving Loans pursuant to this Section 4.01, such prepayment shall not be applied to any Revolving Loans of a Defaulting Bank.
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4.02 Mandatory Repayments . (a) (i) If on any date the sum of (x) the aggregate outstanding principal amount of Revolving Loans made by Non-Defaulting Banks and Swingline Loans (in each case after giving effect to all other repayments thereof on such date), plus (y) the Letter of Credit Outstandings on such date exceeds the Adjusted Total Revolving Loan Commitment as then in effect, the Borrower shall repay on such date the principal of Swingline Loans, and if no Swingline Loans are or remain outstanding, Revolving Loans of Non-Defaulting Banks in an aggregate amount equal to such excess. If, after giving effect to the repayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of Letter of Credit Outstandings exceeds the Adjusted Total Revolving Loan Commitment then in effect, the Borrower agrees to pay to the Administrative Agent an amount in cash and/or Cash Equivalents equal to such excess (up to the aggregate amount of Letter of Credit Outstandings) and the Administrative Agent shall hold such payment as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance satisfactory to the Administrative Agent (which shall permit certain investments in Cash Equivalents satisfactory to the Administrative Agent, until the proceeds are applied to the secured obligations).
(ii) If on any date the aggregate outstanding principal amount of Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan Commitment of such Defaulting Bank, the Borrower shall repay the Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b) [Reserved]
(c) In addition to any other mandatory repayments pursuant to this Section 4.02, the Borrower shall repay, on each date set forth below ( provided that if any date set forth below is not a Business Day then the repayment shall occur on the first Business Day immediately succeeding such date set forth below) (each a “Scheduled TLB Repayment Date”), the Term Loans B in an amount equal to the amount set forth below opposite such date (each such repayment, as the same may be reduced as provided in Sections 4.01, and 4.02(e), a “Scheduled TLB Repayment”):
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(d) In the event that a Specified Change of Control Event occurs, the Borrower shall repay all outstanding Term Loans B in their entirety on the date which is the earlier of (i) 30 days after any date on which such Specified Change of Control Event occurs and (ii) the date on which any Senior Notes or any other Indebtedness of the Borrower or its Restricted Subsidiaries are required to be repurchased, redeemed or prepaid as a result of any such Specified Change of Control Event.
(e) The aggregate principal amount of Term Loans B shall be repaid at the times, and in the amounts, provided in Section 3.03(d). The amount of each principal repayment of Term Loans B pursuant to this Section 4.02(e) shall be applied to reduce each of the remaining Scheduled TLB Repayments on a pro rata basis (based upon the then remaining amount of each such Scheduled TLB Repayment).
(f) Notwithstanding anything to the contrary contained in this Agreement, all then outstanding Loans under this Agreement shall be repaid in full on the respective Maturity Date for such Loans.
(g) With respect to each repayment of Loans required by this Section 4.02, the Borrower may designate the Types of Loans which are to be repaid and the specific Borrowing(s) pursuant to which made; provided that (i) Eurodollar Loans may be designated for repayment pursuant to this Section 4.02 only on the last day of an Interest Period applicable thereto unless all Eurodollar Loans under the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans under the respective Tranche have been paid in full; (ii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; (iii) notwithstanding the provisions of the preceding clause (ii), no repayment of Revolving Loans pursuant to Section 4.02(a)(i) shall be applied to the Revolving Loans of a Defaulting Bank; and (iv) repayments of Revolving Loans of Defaulting Banks pursuant to Section 4.02(a)(ii) shall be applied pro rata among such Revolving Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section 1.11. Notwithstanding the foregoing provisions of this Section 4.02, if at any time the mandatory repayment of Loans pursuant to Section 4.02(a) arising solely as a result of a reduction to the Total Revolving Loan Commitment pursuant to Section 3.03(d) would result, after giving effect to the procedures set forth above in this clause (g), in the Borrower incurring breakage costs under Section 1.11 as a result of Eurodollar Loans being repaid other than on the last day of an Interest Period applicable thereto (the “Affected Eurodollar Loans”), then the Borrower may in
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its sole discretion initially deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of the Affected Eurodollar Loans with the Administrative Agent to be held as security for the obligations of the Borrower hereunder pursuant to a cash collateral agreement to be entered into in form and substance satisfactory to the Administrative Agent, with such cash collateral to be released from such cash collateral account upon the first occurrence (or occurrences) thereafter of the last day of an Interest Period applicable to the relevant Loans that are Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower), to repay an aggregate principal amount of such Loans equal to the Affected Eurodollar Loans not initially repaid pursuant to this sentence.
4.03 Method and Place of Payment . Except as otherwise specifically provided herein, all payments under this Agreement shall be made to the Administrative Agent for the ratable account of the Banks entitled thereto (based on each Bank’s Pro Rata Share, if any), no later than 1:00 P.M. (New York time) on the date when due and shall be made in immediately available funds and in lawful money of the United States of America at the Payment Office. Any payments under this Agreement which are made later than 1:00 P.M. (New York time) shall be deemed to have been made on the next succeeding Business Day; provided , however , that to the extent that the Administrative Agent shall have received any payment under this Agreement after 1:00 P.M. (New York time) on a Business Day, the Administrative Agent shall use its best efforts to distribute such payment as promptly as practicable on such date to the Banks (other than any Bank that has consented in writing to waive its pro rata share of such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received, and to the extent that any such Bank receives its portion of such payment from the Administrative Agent on such same date by a time satisfactory to such Bank, such payment to such Bank shall be deemed to have been made on such date. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.
4.04 Net Payments . (a) All payments made by the Borrower hereunder will be made without setoff, counterclaim or other defense. Except as provided in Section 4.04(b), the Borrower agrees to pay, prior to the date on which penalties attach thereto, all present and future income, stamp and other taxes, levies, imposts, fines, fees, assessments or costs and charges whatsoever now and hereafter imposed, assessed, levied, withheld or collected on or in respect of any payments of principal, interest or other amounts (all such taxes, levies, costs, imposts, fines, fees, assessments and charges being herein collectively called “Taxes”); provided that Taxes shall not include, except as provided in the succeeding sentence, taxes imposed on or measured by the overall net income or receipts of the Administrative Agent or any Bank pursuant to the laws of the jurisdiction in which the Administrative Agent or such Bank is organized or the jurisdiction in which the principal office or applicable lending office of such Bank is located or any subdivision thereof or therein. The Borrower agrees to also pay such additional amounts equal to increases in taxes payable by, or withheld from, that Bank described in the foregoing proviso which increases arise from the receipt by that Bank of payments so paid to or on behalf of such Bank by the Borrower pursuant to the immediately preceding sentence of this Section 4.04 and from the receipt of any amounts paid to or on behalf of such Bank pursuant to this sentence. Promptly after the date on which payment of any such Tax is due pursuant to
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applicable law, the Borrower will furnish to that Bank evidence, in form and substance satisfactory to that Bank, that the Borrower has met its obligation under this Section 4.04. The Borrower agrees to indemnify each Bank against, and reimburse each Bank on demand for, any Taxes so levied or imposed and paid by such Bank, as determined by that Bank.
(b) Each Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Bank the Prescribed Forms certifying to the Bank’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement. In addition, each Bank agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the Prescribed Forms obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Agent new Prescribed Forms and such other forms as may be required in order to confirm or establish the entitlement of such Bank to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement, or it shall immediately notify the Borrower and the Agent of its inability to deliver any such Form or Certificate, in which case such Bank shall not be required to deliver any such Prescribed Form pursuant to this Section 4.04(b). Notwithstanding the foregoing, but subject to Section 12.04(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold and pay to the appropriate taxing authority within the time prescribed by applicable law income or other similar taxes imposed by the United States of America from interest, fees or other amounts payable hereunder for the account of the Administrative Agent or any Bank other than the Administrative Agent or any Bank (i) who is a U.S. Person (as such term is defined in Section 7701(a)(30) of the Code for U.S. Federal income tax purposes or (ii) who has the Prescribed Forms on file with the Borrower for the applicable year to the extent deduction or withholding of such taxes is not required as a result of the filing of such Prescribed Forms, and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to the Administrative Agent or a Bank in respect of income or similar taxes imposed by the United States if (I) the Administrative Agent or such Bank has not provided to the Borrower the Prescribed Forms required to be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, to the extent that the Prescribed Forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay any additional amounts and to indemnify the Administrative Agent and each Bank in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of such Taxes.
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SECTION 5. Conditions Precedent.5.01 Conditions Precedent to the Restatement Effective Date . The occurrence of the Restatement Effective Date pursuant to Section 12.10 is subject to the satisfaction of the following conditions:
(a) Execution of Agreement . This Agreement shall have been executed and delivered as provided in Section 12.10.
(b) No Default; Representations and Warranties . (i) There shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in the other Credit Documents in effect at such time shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(c) Opinions of Counsel . The Administrative Agent shall have received opinions, addressed to each of the Banks and the Collateral Agent, dated as of the Restatement Effective Date, (i) from Simpson, Thacher & Bartlett, special counsel to the Credit Parties, which opinion shall cover the matters contained in Exhibit C-1 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request, (ii) from Beverly C. Chell, Esq., counsel to the Credit Parties, which opinion shall cover the matters contained in Exhibit C-2 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request, and (iii) from White & Case LLP, special counsel to the Administrative Agent, which opinion shall cover the matters contained in Exhibit C-3.
(d) Corporate Proceedings . (i) The Administrative Agent shall have received from the Borrower and each Subsidiary Guarantor, a certificate, dated the Restatement Effective Date, signed by the chairman, a vice chairman, the president, the chief financial officer or the treasurer of such Person, and attested to by the secretary or any assistant secretary of such Person, in the form of Exhibit D with appropriate insertions and, to the extent required, together with copies of the Certificate of Incorporation, By-Laws and the resolutions of such Person referred to in such certificate, and the foregoing shall be satisfactory to the Administrative Agent.
(ii) All corporate and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Credit Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all certificates, documents and papers, including good standing certificates and any other records of corporate proceedings and governmental approvals, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers, where appropriate, to be certified by proper corporate or governmental authorities.
(e) Acknowledgement and Consent, etc . The Borrower and each Subsidiary Guarantor shall have duly authorized, executed and delivered an Acknowledgement and Consent in the form of Exhibit J, and the Subsidiary Guaranty, the Contribution Agreement and the Pledge Agreement shall be in full force and effect.
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(f) Notice of Borrowing; Letter of Credit Request . The Administrative Agent shall have received a Notice of Borrowing satisfying the requirements of Section 1.03 with respect to all Borrowings of Loans on the Restatement Effective Date; and the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit Request satisfying the requirements of Section 2.03 with respect to the issuance of any Letter of Credit on the Restatement Effective Date.
(g) Payment of Fees, etc. All costs, fees and expenses, and all other compensation contemplated by this Agreement, due to the Administrative Agent, the Letter of Credit Issuer or the Banks shall have been paid to the extent due.
(h) Repayment of Existing Term Loans . Immediately prior to the Restatement Effective Date, the Borrower shall have repaid in full all principal of and accrued but unpaid interest on (i) all Term Loans A, (ii) all Term Loans B (as defined in the Original Credit Agreement) and (iii) all term loans and all other obligations incurred under the Original 2004 Credit Agreement, in each case, except to the extent converted into Term Loans B pursuant to the second paragraph of Section 1.01(b).
The occurrence of the Restatement Effective Date and the acceptance of the benefits of each Credit Event on the Restatement Effective Date shall constitute a representation and warranty by the Borrower to each of the Banks that all of the conditions specified above exist as of the Restatement Effective Date. All of the certificates, legal opinions and other documents and papers referred to in this Section 5.01, unless otherwise specified, shall be delivered to the Administrative Agent at its Notice Office for the account of each of the Banks and in sufficient counterparts for each of the Banks and shall be reasonably satisfactory in form and substance to the Administrative Agent.
5.02 Conditions Precedent to each Credit Event . The obligation of each Bank to make each Loan to the Borrower hereunder, and the obligation of the Letter of Credit Issuer to issue each Letter of Credit hereunder, are subject, at the time of each such Credit Event, to the satisfaction of the following conditions:
(a) No Default; Representations and Warranties . At the time of each Credit Event and also after giving effect thereto (i) there shall exist no Default or Event of Default and (ii) all representations and warranties contained herein or in the other Credit Documents in effect at such time shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(b) Notice of Borrowing; Letter of Credit Request . The Administrative Agent shall have received a Notice of Borrowing satisfying the requirements of Section 1.03 with respect to any Borrowing of Loans; and the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit Request satisfying the requirements of Section 2.03 with respect to the issuance of any Letter of Credit.
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The acceptance of the benefits of each Credit Event shall constitute a representation and warranty by the Borrower to each of the Banks that all of the conditions specified above exist as of the date of such Credit Event. All of the documents and papers referred to in this Section 5.02, unless otherwise specified, shall be delivered to the Administrative Agent at its Notice Office for the account of each of the Banks and in sufficient counterparts for each of the Banks and shall be reasonably satisfactory in form and substance to the Administrative Agent.
SECTION 6. Representations, Warranties and Agreements. In order to induce the Banks to enter into this Agreement and to make the Loans and issue and/or participate in the Letters of Credit provided for herein, the Borrower makes the following representations and warranties to, and agreements with, the Banks, all of which shall survive the execution and delivery of this Agreement, the making of the Loans and the issuance of the Letters of Credit (with the occurrence of each Credit Event on and after the Initial Borrowing Date being deemed to constitute a representation and warranty that the matters specified in this Section 6 are true and correct in all material respects on and as of the Initial Borrowing Date and as of the date of each such Credit Event, unless stated to relate to a specific earlier date):
6.01 Corporate Status . The Borrower and each of its Restricted Subsidiaries (i) is a duly organized and validly existing corporation under the laws of the jurisdiction of its organization and has the corporate power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage, (ii) is in good standing under the laws of the jurisdiction of its organization and (iii) is duly qualified and is authorized to do business and is in good standing in all jurisdictions where it is required to be so qualified, except, in the cases of clauses (ii) and (iii) above, for such failures to be in good standing and failures to be so qualified which, in the aggregate, would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
6.02 Corporate Power and Authority . The Borrower and each of its Restricted Subsidiaries has the corporate power and authority to execute, deliver and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary corporate action to authorize the execution, delivery and performance of the Credit Documents to which it is a party. The Borrower and each of its Restricted Subsidiaries has duly executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes the legal, valid and binding obligation of such Person enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
6.03 No Violation . Neither the execution, delivery or performance by the Borrower or any of its Restricted Subsidiaries of the Credit Documents to which it is a party nor compliance by them with the terms and provisions thereof, nor the consummation of the transactions contemplated therein (i) will contravene in any material respect any applicable provision of any law, statute, rule or regulation, or any order, writ, injunction or decree of any court or governmental instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under,
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or result in the creation or imposition of (or the obligation to create or impose) any Lien (except Liens created pursuant to the Pledge Agreement) upon any of the property or assets of the Borrower or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement, loan agreement or other material agreement or instrument to which the Borrower or any of its Subsidiaries is a party or by which any of them or any of their respective property or assets is bound or to which it may be subject or (iii) will violate any provision of the Certificate of Incorporation or By-Laws of the Borrower or any of its Subsidiaries.
6.04 Litigation . There are no actions, suits or proceedings pending, or, to the best knowledge of the Borrower, threatened, with respect to the Borrower or any of its Subsidiaries (i) that are likely to have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole or (ii) that could reasonably be expected to have a material adverse effect on the rights or remedies of the Banks, the Letter of Credit Issuer or the Administrative Agent or on the ability of the Borrower or of the Subsidiary Guarantors, taken as a whole, in either case, to perform its or their respective obligations hereunder and under the other Credit Documents to which it is or they are, or will be, a party.
6.05 Use of Proceeds; Margin Regulations . (a) The proceeds of all Term Loans B shall be utilized (i) to refinance loans outstanding on the Restatement Effective Date under the Original Credit Agreement, (ii) to refinance loans outstanding on the Restatement Effective Date under the Borrower’s Credit Agreement dated as of May 14, 2004, (iii) to redeem the Borrower’s Series H Preferred Stock, (iv) to pay certain fees and expenses arising in connection with such refinancings and redemptions and (v) for general corporate and working capital purposes of the Borrower and its Subsidiaries (including, without limitation, to finance Permitted Acquisitions and refinance Senior Notes).
(b) The proceeds of all Revolving Loans, and Swingline Loans shall be used for the purposes referred to in Section 6.05(a) above and for general corporate and working capital purposes of the Borrower and its Subsidiaries (including, without limitation, to finance Permitted Acquisitions and refinance Senior Notes).
(c) Neither the making of any Loan hereunder, nor the use of the proceeds thereof, will violate the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System and no part of the proceeds of any Loan will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock, provided that the Borrower may use the proceeds of Loans to purchase Margin Stock in compliance with Regulations T, U and X, so long as at the time of the making of such Loan, and after giving effect thereto, not more than 25% of the value of the assets subject to the provisions of Section 8 of the Borrower, or of the Borrower and its Restricted Subsidiaries on a consolidated basis, shall constitute Margin Stock.
6.06 Governmental Approvals . No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any foreign or domestic governmental or public body or authority, or any subdivision thereof, is required to authorize or is required in connection with (i) the execution, delivery and performance of any Credit Document or (ii) the legality, validity, binding effect or enforceability
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of any Credit Document, except those which have been obtained or made or those the absence of which, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on either (x) the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole or (y) the rights or remedies of the Banks, the Letter of Credit Issuer or the Administrative Agent or on the ability of the Borrower or of the Subsidiary Guarantors, taken as a whole, in either case, to perform its or their respective obligations hereunder and under the other Credit Documents to which it is or they are, or will be, a party.
6.07 Investment Company Act . Neither the Borrower nor any of its Restricted Subsidiaries is an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
6.08 Public Utility Holding Company Act . Neither the Borrower nor any of its Restricted Subsidiaries is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure . (a) All factual information (taken as a whole) heretofore or contemporaneously furnished by the Borrower or any of its Subsidiaries in writing to the Administrative Agent and/or any Bank on or before the Effective Date (including, without limitation, (i) the Information Memorandum and (ii) all information contained in the Credit Documents) for purposes of or in connection with this Agreement or any transaction contemplated herein is true and complete in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not misleading at such time in light of the circumstances under which such information was provided, it being understood and agreed that for purposes of this Section 6.09(a), such factual information shall not include projections and pro forma financial information.
(b) The projections and pro forma financial information contained in the factual information referred to in paragraph (a) above were based on good faith estimates and assumptions believed by such Persons to be reasonable at the time made, it being recognized by the Banks that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results.
6.10 Financial Statements; Financial Condition . (a) The consolidated balance sheets of the Borrower and its Subsidiaries as at December 31, 2004 and June 30, 2005 and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year or six month period, as the case may be, ended as of said dates, which, in the case of the December 31, 2004 statements, have been examined by Deloitte & Touche, independent certified public accountants, who delivered an unqualified opinion in respect thereof, present fairly the financial position of the Borrower and its Subsidiaries at the dates of said statements and the results for the period covered thereby. All such financial statements have been prepared in accordance with GAAP consistently applied except to the extent provided in the
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notes to said financial statements (subject, in the case of the June 30, 2005 statements, to normal year and audit adjustments).
(b) Since December 31, 2004 and after giving effect to the incurrence of Indebtedness hereunder and the other transactions contemplated hereby, there has been no material adverse change in the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole (other than any change in general economic conditions or any change in conditions affecting the Business generally).
6.11 Tax Returns and Payments . The Borrower and each of its Restricted Subsidiaries has filed all Federal income tax returns and all other material tax returns, domestic and foreign, required to be filed by it and has paid all Federal taxes and assessments shown to be due on such returns and all other material taxes and assessments, domestic and foreign, in each case payable by it which have become due, other than those not yet delinquent and except for those contested in good faith and adequately disclosed and fully provided for on the financial statements of the Borrower and its Restricted Subsidiaries in accordance with GAAP. The Borrower and each of its Restricted Subsidiaries have at all times paid, or have provided adequate reserves (in the good faith judgment of the management of the Borrower) for the payment of, all federal, state and foreign income taxes applicable for all prior fiscal years and for the current fiscal year to date, except to the extent that the failure to make such payments or provide such reserves would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole. There is no action, suit, proceeding, investigation, audit, or claim now pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened by any authority regarding any taxes relating to the Borrower or any of its Restricted Subsidiaries, except to the extent that any such action, proceeding, investigation, audit or claim would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole. Neither the Borrower nor any of its Restricted Subsidiaries has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of the Borrower or any of its Restricted Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable periods of the Borrower or any of its Restricted Subsidiaries not to be subject to the normally applicable statute of limitations, except to the extent that any such agreement, wavier, request or circumstance would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
6.12 Compliance with ERISA . As of the Restatement Effective Date, there are no Plans and neither the Borrower nor any of its Restricted Subsidiaries nor any ERISA Affiliate has incurred any unpaid material liability or reasonably expects to incur any material liability with respect to any “employee pension benefit plan” (as defined in Section 3(2) of ERISA) covered by Title IV of ERISA. As of the date of each subsequent Credit Event, (a) each Plan is in substantial compliance with ERISA and the Code; no Reportable Event has occurred with respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an accumulated or waived funding deficiency, has permitted decreases in its funding standard account or has applied for an
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extension of any amortization period within the meaning of Section 412 of the Code; neither the Borrower nor any of its Restricted Subsidiaries nor any ERISA Affiliate has incurred or reasonably expects to incur any liability to or on account of a Plan pursuant to ERISA or the Code; no proceedings have been instituted by the PBGC to terminate any Plan; no condition exists which presents a material risk to the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of a Plan pursuant to ERISA or the Code; no lien imposed under the Code or ERISA on the assets of the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of any Plan; and the Borrower and its Restricted Subsidiaries do not maintain or contribute to any “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), which provides benefits to retired employees (other than as required by Section 601 of ERISA), (b) where, with respect to any of the foregoing representations in this Section 6.12, the liability for or the lien which could arise as a result of, the particular circumstance or event which is the subject of the representation, would be reasonably likely to result in a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole. Using actuarial assumptions and computation methods consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of the Borrower, its Restricted Subsidiaries and ERISA Affiliates to all Plans which are “multiemployer plans” (as defined in Section 4001(a)(3) of ERISA) (each a “Multiemployer Plan”) in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each such Plan would not be reasonably likely to be an amount that could result in a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole. Notwithstanding anything in this Section 6.12 to the contrary, all representations and warranties made with respect to any Plan which is a Multiemployer Plan shall be made to the best knowledge of the Borrower.
6.13 Subsidiaries . On the Restatement Effective Date, the corporations listed on Annex III under the name of the Borrower are the only Subsidiaries of the Borrower. Annex III correctly sets forth, as of the Restatement Effective Date, the percentage ownership (direct and indirect) of the Borrower in each class of capital stock of each of its Subsidiaries and also identifies the direct owner thereof.
6.14 Intellectual Property . (a) The Borrower and each of its Restricted Subsidiaries owns, or is licensed or otherwise authorized to sell, distribute, use or exploit, all material copyrights, literary works, texts and other works of authorship fixed in any tangible medium of expression necessary for the present conduct of its business (“Copyrights”), except to the extent that the failure to own or obtain licenses or authorizations with respect to any of the foregoing, individually or in the aggregate, would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
(b) The Borrower and each of its Restricted Subsidiaries owns or is licensed to use all the patents, trademarks, permits, service marks, trade names, technology, know-how and formulas, or rights with respect to the foregoing, necessary for the present conduct of its business, except to the extent that the failure to own or obtain licenses with respect to any of the foregoing, individually or in the aggregate, would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and
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its Restricted Subsidiaries taken as a whole (together with the Copyrights, “Intellectual Property”).
(c) All Intellectual Property is protected in all material respects under the laws of the United States relating to such Intellectual Property and has been duly and properly registered or filed with or issued by the appropriate governmental offices and jurisdictions for such registrations, filings or issuances, except to the extent that the failure to make or obtain such registrations, filings or issuances would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
(d) No material claim has been asserted by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property. The use of such Intellectual Property by the Borrower or its Restricted Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements as do not, individually or in the aggregate, give rise to any liabilities on the part of the Borrower and its Restricted Subsidiaries that are material to the Borrower and its Restricted Subsidiaries taken as a whole.
6.15 Compliance with Statutes, etc. The Borrower and each of its Restricted Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Property and the requirements of any permits issued under such Environmental Laws with respect to any such Real Property or the operations of the Borrower or any of its Subsidiaries), except such noncompliances as would not, in the aggregate, have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
6.16 The Pledge Agreement . The security interests created in favor of the Collateral Agent, as Pledgee, for the benefit of the Secured Creditors, under the Pledge Agreement constitute first priority perfected security interests in the Collateral described in the Pledge Agreement, subject to no security interests of any other Person. No filings or recordings are required in order to perfect (or maintain the perfection or priority of) the security interests created in the Pledge Agreement Collateral under the Pledge Agreement.
SECTION 7. Affirmative Covenants. The Borrower hereby covenants and agrees that on the Effective Date and thereafter for so long as this Agreement is in effect and until the Commitments have terminated, no Letters of Credit or Notes are outstanding and the Loans together with interest, Fees and all other Obligations are paid in full:
7.01 Information Covenants . The Borrower will furnish to each Bank (subject to the final paragraph of this Section 7.01):
(a) Annual Financial Statements . Within 100 days after the close of each fiscal year of the Borrower, the consolidated balance sheets of each of (A) the Borrower and its
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Subsidiaries and of (B) the Borrower and its Restricted Subsidiaries, as at the end of such fiscal year and, in each case, the related consolidated statements of income and retained earnings and of cash flows for such fiscal year, setting forth for such fiscal year, in comparative form, the corresponding figures for the preceding fiscal year and, in the case of the figures with respect to the Borrower and its Restricted Subsidiaries the corresponding figures from the budget for such fiscal year delivered pursuant to Section 7.01(c); all of which shall be examined by Deloitte & Touche or such other independent certified public accountants of recognized national standing as shall be acceptable to the Administrative Agent, whose opinion shall not be qualified as to the scope of audit or as to the status of the Borrower and its Subsidiaries or of the Borrower and its Restricted Subsidiaries, as the case may be, as a going concern, together with a certificate of such accounting firm stating that in the course of its regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted in accordance with generally accepted auditing standards, no Default or Event of Default which has occurred and is continuing has come to its attention or, if such a Default or Event of Default has come to its attention a statement as to the nature thereof (provided that in no event shall such accountants be liable as a result of this Agreement by reason of any failure to obtain knowledge of any Default or Event of Default that would not be disclosed in the course of their audit examination).
(b) Quarterly Financial Statements . As soon as available and in any event within 50 days after the close of each of the first three quarterly accounting periods in each fiscal year of the Borrower (beginning with the quarterly accounting period ending June 30, 2001) and, at the sole option of the Borrower, at any time prior to 100 days after the close of the fourth quarterly accounting period in each fiscal year, the consolidated balance sheet of each of (A) the Borrower and its Subsidiaries and of (B) the Borrower and its Restricted Subsidiaries, as at the end of such quarterly period and the related consolidated statements of income and retained earnings and of cash flows for such quarterly period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period; all of which shall be in reasonable detail and certified by the chief financial officer or other Authorized Officer of the Borrower that they fairly present the financial condition of the Borrower and its Subsidiaries or of the Borrower and its Restricted Subsidiaries, as the case may be, as of the dates indicated and the results of their operations and changes in their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end audit adjustments.
(c) Budgets; etc. Not more than 90 days after the commencement of each fiscal year of the Borrower, budgets of the Borrower and its Restricted Subsidiaries in reasonable detail for each of the four fiscal quarters of such fiscal year setting forth Consolidated EBITDA and consolidated sales and setting forth, with appropriate discussion, the principal assumptions upon which such budgets are based.
(d) Officer’s Certificates . At the time of the delivery of the financial statements provided for in Section 7.01(a) and (b), a certificate of the chief financial officer, treasurer, controller or chief accounting officer of the Borrower (i) to the effect that no Default or Event of Default exists or, if any Default or Event of Default does exist, specifying the nature and extent thereof, which certificate shall set forth the calculations required to establish whether the Borrower and its Subsidiaries were in compliance with the provisions of Sections 8.04(c), 8.05(d), 8.07 and Sections 8.09 through and including 8.11, as at the end of such fiscal quarter or year, as the case may be and (ii) setting forth the calculations demonstrating (A) with respect to
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each Affected Transaction consummated during the most recently ended fiscal quarter, that the Borrower was in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 and (B) with respect to each business sold (or deemed sold) pursuant to Section 8.02(c) hereof, compliance by the Borrower with clause (iii) of such Section 8.02(c). In addition, at the time of the delivery of the financial statements provided for in Section 7.01(a) and (b), a certificate of the chief financial officer, treasurer, controller or chief accounting officer of the Borrower setting forth the amount of, and calculations required to establish the amount of, Excess Cash Flow for the respective fiscal year or quarter.
(e) Notice of Default or Litigation . Promptly, and in any event within three Business Days after any officer of the Borrower obtains knowledge thereof, notice of (x) the occurrence of any event which constitutes a Default or Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower proposes to take with respect thereto and (y) the commencement of, or threat of, or any significant development in, any litigation or governmental proceeding pending against the Borrower or any of its Subsidiaries which is likely to have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole, or the ability of the Borrower or of the Subsidiary Guarantors, taken as a whole, in either case, to perform its or their respective obligations hereunder or under any other Credit Document.
(f) Auditors’ Reports . Promptly upon receipt thereof, a copy of each report or “management letter” submitted to the Borrower or any of its Subsidiaries by its independent accountants in connection with any annual, interim or special audit made by them of the books of the Borrower or any of its Subsidiaries.
(g) Other Information . Promptly upon transmission thereof, copies of any filings and registrations with, and reports to, the SEC by the Borrower or any of its Subsidiaries and, with reasonable promptness, such other information or documents (financial or otherwise) as the Administrative Agent on its own behalf or on behalf of the Required Banks may reasonably request from time to time.
Unless expressly requested by a Bank, the financial statements and other documents that are required to be delivered under this Section 7.01 shall not be required to be physically delivered to any Bank to the extent that such financial statements and other documents are available on the EDGAR database.
7.02 Books, Records and Inspections . The Borrower will, and will cause each of its Restricted Subsidiaries to, permit, upon notice to the chief financial officer or other Authorized Officer of the Borrower, officers and designated representatives of the Administrative Agent or the Required Banks to visit and inspect any of the properties or assets of the Borrower and any of its Restricted Subsidiaries in whomsoever’s possession, and to examine the books of account of the Borrower and any of its Restricted Subsidiaries and discuss the affairs, finances and accounts of the Borrower and of any of its Restricted Subsidiaries with, and be advised as to the same by, their officers and independent accountants, all at such reasonable times and intervals and to such reasonable extent as the Administrative Agent or the Required Banks may desire.
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7.03 Payment of Taxes . The Borrower will pay and discharge, and will cause each of its Restricted Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which material penalties attach thereto, and all lawful claims for sums that have become due and payable which, if unpaid, might become a Lien not otherwise permitted under Section 8.03(a) or charge upon any properties of the Borrower or any of its Restricted Subsidiaries; provided that neither the Borrower nor any of its Restricted Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.
7.04 Corporate Franchises . The Borrower will do, and will cause each of its Restricted Subsidiaries to do, or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its rights, franchises, licenses, permits and Intellectual Property rights except to the extent its failures to do so would not, in the aggregate, have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole; provided , however , that any transaction permitted by Section 8.02 will not constitute a breach of this Section 7.04.
7.05 Compliance with Statutes, etc . The Borrower will, and will cause each of its Restricted Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls) other than those the non-compliance with which would not have a material adverse effect on the condition (financial or otherwise), operations, assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries taken as a whole or on the ability of the Borrower or of the Subsidiary Guarantors, taken as a whole, in either case, to perform its or their obligations hereunder or under any other Credit Document.
7.06 ERISA . As soon as possible and, in any event, within 30 days after the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate knows or could reasonably be expected to know of the occurrence of any of the following and where it could reasonably be expected that a material liability of the Borrower and its Restricted Subsidiaries and ERISA Affiliates, taken as a whole, could result in connection therewith, the Borrower will deliver to each of the Banks a certificate of the chief financial officer or other Authorized Officer of the Borrower setting forth details as to such occurrence and such action, if any, which the Borrower, such Restricted Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given to or filed with or by the Borrower, such Restricted Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan administrator with respect thereto: that a Reportable Event has occurred that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA of a Plan subject to Title IV of ERISA in subject to the advance reporting requirements of PBGC of Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with respect to such Plan within the following 30 days; that an accumulated funding deficiency has been incurred or an application is reasonably likely to be or has been made to the Secretary of the Treasury for a waiver or
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modification of the minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412 of the Code with respect to a Plan; that a Plan has been or is reasonably likely to be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability giving rise to a lien under ERISA or the Code; that proceedings are reasonably likely to be or have been instituted to terminate a Plan; that a proceeding has been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; or that the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate will or is reasonably likely to incur any liability (including any contingent or secondary liability) to or on account of the termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(1) of ERISA. At the request of any Bank, the Borrower will deliver to such Bank a complete copy of the annual report (Form 5500) of each Plan required to be filed with the Internal Revenue Service.
7.07 End of Fiscal Years; Fiscal Quarters . The Borrower will, for financial reporting purposes, cause (i) each of its, and each of its Subsidiaries’, fiscal years to end on December 31 of each year and (ii) each of its, and each of its Subsidiaries’, fiscal quarters to end on March 31, June 30, September 30 and December 31 of each year.
7.08 Use of Proceeds . All proceeds of the Loans shall be used as provided in Section 6.05.
7.09 Ownership of Subsidiaries . The Borrower will, at all times, maintain, directly or indirectly, ownership of at least a majority of the capital stock of its Restricted Subsidiaries, except to the extent 100% of the capital stock owned by the Borrower or any Restricted Subsidiary of any such Restricted Subsidiary is sold, transferred or disposed of in a transaction permitted by Section 8.02(c) or (j) or any such Restricted Subsidiary is merged, consolidated or liquidated in a transaction permitted by Section 8.02(e).
7.10 Maintenance of Corporate Separateness . The Borrower will, and will cause each of its Subsidiaries to, satisfy customary corporate formalities, including the holding of regular board of directors’ and shareholders’ meetings and the maintenance of corporate offices and records. Neither the Borrower nor any Restricted Subsidiary shall make any payment to a creditor of any Unrestricted Subsidiary in respect of any liability of such Unrestricted Subsidiary, and no bank account of an Unrestricted Subsidiary shall be commingled with any bank account of the Borrower or any of its Restricted Subsidiaries. Any financial statements distributed to any creditors of an Unrestricted Subsidiary shall clearly establish the separateness of such Unrestricted Subsidiary from the Borrower and its Restricted Subsidiaries. Finally, neither the Borrower nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which is likely to result in the corporate existence of any Unrestricted Subsidiary which is a direct Subsidiary of the Borrower or any Restricted Subsidiary being ignored by any court of competent jurisdiction, or in the assets and liabilities of the Borrower or any Restricted Subsidiary being substantively consolidated with those of any Unrestricted Subsidiary in a bankruptcy, reorganization or other insolvency proceeding.
SECTION 8. Negative Covenants. The Borrower hereby covenants and agrees
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that as of the Effective Date, and thereafter for so long as this Agreement is in effect and until the Commitments have terminated, no Letters of Credit or Notes are outstanding and the Loans, together with interest, Fees and all other Obligations are paid in full:
8.01 Changes in Business . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage in any businesses other than Businesses, provided that the Borrower and its Restricted Subsidiaries may engage in businesses other than a Business so long as the businesses engaged in by the Borrower and its Restricted Subsidiaries, taken as a whole, consist substantially of Businesses.
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