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Exhibit 10.ak
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CREDIT AGREEMENT
Dated as of October 21, 2005
among
MAINE & MARITIMES CORPORATION,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS
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Section
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ARTICLE I.
DEFINITIONS AND ACCOUNTING
TERMS............................................................1
1.01 Defined
Terms...............................................................................1
1.02 Other
Interpretive
Provisions..............................................................12
1.03 Accounting
Terms...........................................................................13
1.04
Rounding...................................................................................13
1.05
Times of
Day...............................................................................13
1.06 Letter of
Credit
Amounts...................................................................13
ARTICLE II. THE
COMMITMENTS AND CREDIT
EXTENSIONS......................................................14
2.01 Committed
Loans............................................................................14
2.02
Borrowings, Conversions and Continuations of Committed
Loans...............................14
2.03 Letters of
Credit..........................................................................15
2.04
[Intentionally
Omitted]....................................................................20
2.05
Prepayments................................................................................20
2.06
Termination or Reduction of
Commitments....................................................20
2.07 Repayment
of
Loans.........................................................................21
2.08
Interest...................................................................................21
2.09
Fees.......................................................................................21
2.10
Computation of Interest and
Fees...........................................................21
2.11 Evidence
of
Debt...........................................................................22
2.12 Payments
Generally; Agent's
Clawback.......................................................22
2.13 Sharing of
Payments........................................................................23
ARTICLE III.
TAXES,
YIELD PROTECTION AND
ILLEGALITY.....................................................23
3.01
Taxes......................................................................................23
3.02
Illegality.................................................................................24
3.03 Inability
to Determine
Rates...............................................................25
3.04 Increased
Costs............................................................................25
3.05
Compensation for
Losses....................................................................26
3.06 Mitigation
Obligations.....................................................................26
3.07
Survival...................................................................................26
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS..................................................26
4.01 Conditions
of Initial Credit
Extension.....................................................26
4.02 Conditions
to all Credit
Extensions........................................................27
ARTICLE V.
REPRESENTATIONS AND
WARRANTIES.............................................................28
5.01 Existence,
Qualification and Power; Compliance with
Laws...................................28
5.02
Authorization; No
Contravention............................................................28
5.03
Governmental Authorization; Other
Consents.................................................28
5.04 Binding
Effect.............................................................................28
5.05 Financial
Statements; No Material Adverse Effect; No Internal Control
Event................28
5.06
Litigation.................................................................................29
5.07 No
Default.................................................................................29
5.08 Ownership
of Property;
Liens...............................................................29
5.09
Environmental
Compliance...................................................................29
5.10
Insurance..................................................................................29
5.11
Taxes......................................................................................29
5.12 ERISA
Compliance...........................................................................29
5.13
Subsidiaries...............................................................................30
5.14 Margin
Regulations; Investment Company Act; Public Utility Holding Company
Act.............30
5.15
Disclosure.................................................................................30
5.16 Compliance
with
Laws.......................................................................31
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5.17
Intellectual Property; Licenses,
Etc.......................................................31
5.18 Rights in
Collateral; Priority of
Liens....................................................31
ARTICLE VI.
AFFIRMATIVE
COVENANTS......................................................................31
6.01 Financial
Statements.......................................................................31
6.02
Certificates; Other
Information............................................................32
6.03
Notices....................................................................................33
6.04 Payment of
Obligations.....................................................................33
6.05
Preservation of Existence,
Etc.............................................................33
6.06
Maintenance of
Properties..................................................................33
6.07
Maintenance of
Insurance...................................................................33
6.08 Compliance
with
Laws.......................................................................33
6.09 Books and
Records..........................................................................34
6.10 Inspection
Rights..........................................................................34
6.11 Use of
Proceeds............................................................................34
6.12 Financial
Covenants........................................................................34
6.13 Collateral
Records.........................................................................34
6.14 Security
Interests.........................................................................34
ARTICLE VII. NEGATIVE
COVENANTS.........................................................................35
7.01
Liens......................................................................................35
7.02
[Intentionally
Omitted]....................................................................35
7.03
Indebtedness...............................................................................35
7.04
Fundamental
Changes........................................................................36
7.05
Dispositions...............................................................................36
7.06
Restricted
Payments........................................................................37
7.07 Change in
Nature of
Business...............................................................37
7.08
Transactions with
Affiliates...............................................................37
7.09
[Intentionally
Omitted]....................................................................37
7.10 Use of
Proceeds............................................................................37
ARTICLE VIII. EVENTS OF
DEFAULT AND
REMEDIES.............................................................37
8.01 Events of
Default..........................................................................37
8.02 Remedies
Upon Event of
Default.............................................................39
8.03
Application of
Funds.......................................................................39
ARTICLE IX.
ADMINISTRATIVE
AGENT.......................................................................40
9.01
Appointment and Authorization of Administrative
Agent......................................40
9.02 Rights as
a
Lender.........................................................................40
9.03
Exculpatory
Provisions.....................................................................40
9.04 Reliance
by Administrative
Agent...........................................................41
9.05 Delegation
of
Duties.......................................................................41
9.06
Resignation of
Agent.......................................................................41
9.07
Non-Reliance on Agent and Other
Lenders....................................................41
9.08 No Other
Duties,
Etc.......................................................................42
9.09
Administrative Agent May File Proofs of
Claim..............................................42
9.10 Collateral
Matters.........................................................................42
ARTICLE X.
MISCELLANEOUS..............................................................................43
10.01 Amendments,
Etc............................................................................43
10.02 Notices;
Effectiveness; Electronic
Communications..........................................44
10.03 No Waiver;
Cumulative
Remedies.............................................................45
10.04 Expenses;
Indemnity: Damage
Waiver.........................................................45
10.05 Payments Set
Aside.........................................................................46
10.06 Successors and
Assigns.....................................................................46
10.07 Treatment of
Certain Information;
Confidentiality..........................................48
10.08 Right of
Setoff............................................................................49
10.09 Interest Rate
Limitation...................................................................49
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10.10 Counterparts;
Integration;
Effectiveness...................................................49
10.11 Survival of
Representations and
Warranties.................................................49
10.12
Severability...............................................................................49
10.13 Governing Law;
Jurisdiction;
Etc...........................................................50
10.14 Waiver of Right
to Trial by
Jury...........................................................50
10.15 USA Patriot Act
Notice.....................................................................50
10.16 Time of the
Essence........................................................................50
10.17 Maine
Notice...............................................................................50
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SCHEDULES
2.01
Commitments and Applicable Percentages
5.06
Litigation
5.09
Environmental Matters
5.13
Subsidiaries and Other Equity Investments
7.01
Existing Liens
7.03
Existing Indebtedness
10.02
Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A
Committed Loan Notice
B
[Intentionally Omitted]
C
Note
D
Compliance Certificate
E
Assignment and Assumption
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CREDIT AGREEMENT
CREDIT AGREEMENT (this "AGREEMENT") is entered into as of October
21, 2005,
among MAINE & MARITIMES CORPORATION, a Maine corporation
("BORROWER"), each
lender from time to time party hereto (collectively, "LENDERS" and
individually,
a "LENDER"), and BANK OF AMERICA, N.A., as Administrative Agent and
L/C Issuer.
Borrower has requested that Lenders provide a revolving credit
facility, and
Lenders are willing to do so on the terms and conditions set forth
herein. In
consideration of the mutual covenants and agreements herein
contained, the
parties hereto covenant and agree as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall
have the meanings set forth below:
"ADMINISTRATIVE AGENT" or "AGENT" means Bank of America in its
capacity as
administrative agent under any of the Loan Documents, or any
successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means Agent's address and, as
appropriate,
account as set forth on SCHEDULE 10.02, or such other address or
account as
Agent may from time to time notify Borrower and Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form
supplied by Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or
is under common Control with the Person specified.
"AGENT FEE LETTER" has the meaning specified in SECTION
2.09(b).
"AGGREGATE COMMITMENTS" means the Commitments of all Lenders.
"AGREEMENT" means this Credit Agreement.
"APPLICABLE PERCENTAGE" means with respect to any Lender at any
time, the
percentage (carried out to the ninth decimal place) of the
Aggregate Commitments
represented by such Lender's Commitment at such time. If the
commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make
L/C Credit
Extensions have been terminated pursuant to SECTION 8.02 or if the
Aggregate
Commitments have expired, then the Applicable Percentage of each
Lender shall be
determined based on the Applicable Percentage of such Lender most
recently in
effect, giving effect to any subsequent assignments. The initial
Applicable
Percentage of each Lender is set forth opposite the name of such
Lender on
SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which
such Lender
becomes a party hereto, as applicable.
"APPLICABLE RATE" means a per annum rate equal to:
(a)
with respect to Base Rate Loans, 0%;
(b)
with respect to Eurodollar Rate Loans, 2.0%; and
(c) with respect to and Letters
of Credit, 1.5%.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a
Lender and an Eligible Assignee (with the consent of any party
whose consent is
required by SECTION 10.06(b), and accepted by Agent, in
substantially the form
of EXHIBIT E or any other form approved by Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of
any capital
lease of any Person, the capitalized amount thereof that would
appear on a
balance sheet of such Person prepared as of such date in accordance
with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of
the remaining lease payments under the relevant lease that
would
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appear on a balance sheet of such Person prepared as of such date
in accordance
with GAAP if such lease were accounted for as a capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of
Borrower and its Subsidiaries for the fiscal year ended December
31, 2004, and
the related consolidated statements of income or operations,
shareholders'
equity and cash flows for such fiscal year of Borrower and its
Subsidiaries,
including the notes thereto.
"AVAILABILITY PERIOD" means the period from and including the
Closing Date to
the earliest of (a) the Maturity Date, (b) the date of termination
of the
Aggregate Commitments pursuant to SECTION 2.06, and (c) the date of
termination
of the commitment of each Lender to make Loans and of the
obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to SECTION 8.02.
"BANK OF AMERICA" means Bank of America, N.A. and its
successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to
the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in
effect for such day as publicly announced from time to time by Bank
of America
as its "prime rate." The "prime rate" is a rate set by Bank of
America based
upon various factors including Bank of America's costs and desired
return,
general economic conditions and other factors, and is used as a
reference point
for pricing some loans, which may be priced at, above, or below
such announced
rate. Any change in such rate announced by Bank of America shall
take effect at
the opening of business on the day specified in the public
announcement of such
change.
"BASE RATE COMMITTED LOAN" means a Committed Loan that is a Base
Rate Loan.
"BASE RATE LOAN" means a Loan that bears interest based on the Base
Rate.
"BORROWER" has the meaning specified in the introductory paragraph
hereto.
"BORROWER MATERIALS" has the meaning specified in Section 6.02.
"BORROWING" means a Committed Borrowing.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which
commercial banks are authorized to close under the Laws of, or are
in fact
closed in, the state where Administrative Agent's Office is located
and, if such
day relates to any Eurodollar Rate Loan, means any such day on
which dealings in
Dollar deposits are conducted by and between banks in the London
interbank
eurodollar market.
"CAPITAL LEASE" means a lease which has been or should be
capitalized on the
books of the lessee in accordance with GAAP.
"CASH COLLATERALIZE" has the meaning specified in SECTION
2.03(g).
CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule,
regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in
the
administration, interpretation or application thereof by any
Governmental
Authority or (c) the making or issuance of any request, guideline
or directive
(whether or not having the force of law) by any Governmental
Authority.
"CHANGE OF CONTROL" means, with respect to any Person, an event or
series of
events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d)
of the Securities Exchange Act of 1934, but excluding any employee
benefit plan
of such person or its subsidiaries, and any person or entity acting
in its
capacity as trustee, agent or other fiduciary or administrator of
any such plan)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the
Securities Exchange Act of 1934, except that a person or group
shall be deemed
to have "beneficial ownership" of all securities that such person
or group has
the right to acquire (such right, an "OPTION RIGHT"), whether such
right is
exercisable immediately or only after the passage of time),
directly or
indirectly, of 25% or more of the equity securities of such Person
entitled to
vote for members of the board of directors or equivalent governing
body of such
Person on a fully-diluted basis (and taking into account all such
securities
that such person or group has the right to acquire pursuant to any
option
right);
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(b) during any period of 12 consecutive months, a majority of the
members of the
board of directors or other equivalent governing body of such
Person cease to be
composed of individuals (i) who were members of that board or
equivalent
governing body on the first day of such period, (ii) whose election
or
nomination to that board or equivalent governing body was approved
by
individuals referred to in clause (i) above constituting at the
time of such
election or nomination at least a majority of that board or
equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent
governing body was approved by individuals referred to in clauses
(i) and (ii)
above constituting at the time of such election or nomination at
least a
majority of that board or equivalent governing body (excluding, in
the case of
both clause (ii) and clause (iii), any individual whose initial
nomination for,
or assumption of office as, a member of that board or equivalent
governing body
occurs as a result of an actual or threatened solicitation of
proxies or
consents for the election or removal of one or more directors by
any person or
group other than a solicitation for the election of one or more
directors by or
on behalf of the board of directors); or
(c) any individual(s) or entity(s) acting in concert shall have
acquired by
contract or otherwise, or shall have entered into a contract or
arrangement
that, upon consummation thereof, will result in its or their
acquisition of the
power to exercise, directly or indirectly, a controlling influence
over the
management or policies of such Person, or control over the equity
securities of
such Person entitled to vote for members of the board of directors
or equivalent
governing body of such Person on a fully-diluted basis (and taking
into account
all such securities that such individual(s) or entity(s) or group
has the right
to acquire pursuant to any option right) representing 25% or more
of the
combined voting power of such securities.
"CLOSING DATE" means the first date all the conditions precedent in
SECTION 4.01
are satisfied or waived in accordance with SECTION 10.01.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" shall mean any and all assets and rights and interests
in or to
property of Borrower and each of the other Loan Parties, whether
real or
personal, tangible or intangible, in which a Lien is granted or
purported to be
granted pursuant to the Collateral Documents.
"COLLATERAL DOCUMENTS" means the Security Agreement of even date
herewith from
Borrower to Agent, and all other agreements, instruments and
documents hereafter
executed and delivered in connection with this Agreement pursuant
to which Liens
are granted or purported to be granted to Agent in Collateral
securing all or
part of the Obligations each in form and substance satisfactory to
Agent.
"COMMITMENT" means, as to each Lender, its obligation to (a) make
Committed
Loans to Borrower pursuant to SECTION 2.01, and (b) purchase
participations in
L/C Obligations, in an aggregate principal amount at any one time
outstanding
not to exceed the amount set forth opposite such Lender's name on
SCHEDULE 2.01
or in the Assignment and Assumption pursuant to which such Lender
becomes a
party hereto, as applicable, as such amount may be adjusted from
time to time in
accordance with this Agreement.
"COMMITTED BORROWING" means a borrowing consisting of simultaneous
Committed
Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the
same Interest Period made by each of the Lenders pursuant to
SECTION 2.01.
"COMMITTED LOAN" has the meaning specified in SECTION 2.01.
"COMMITTED LOAN NOTICE" means a notice of (a) a Committed
Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a
continuation
of Eurodollar Rate Loans, pursuant to SECTION 2.02(a), which, if in
writing,
shall be substantially in the form of EXHIBIT A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of
EXHIBIT D.
"CONSOLIDATED EBIT" means, for the Borrower and its Subsidiaries,
net income,
less income or plus loss from discontinued operations and
extraordinary items,
plus income taxes, plus interest expense.
"CONSOLIDATED INTEREST EXPENSE" means, for any specified period,
the total
consolidated interest charges of the Borrower and its Subsidiaries
for such
period, determined in accordance with GAAP, plus (i) the allowance
for borrowed
funds used during construction for such period, minus (ii) interest
on customer
deposits for such period.
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"CONSOLIDATED TOTAL CAPITAL" means, at a particular date, the total
of the
amounts that, in conformity with GAAP, would be included on a
consolidated
balance sheet of the Borrower and its Subsidiaries as of such date
in respect of
(i) Consolidated Total Indebtedness for Borrowed Money (excluding
Indebtedness
of other Persons guaranteed by the Borrower or a Subsidiary), and
(ii) Common
Shareholders' Equity.
"CONSOLIDATED TOTAL INDEBTEDNESS FOR BORROWED MONEY" means at any
particular
date, the total amount, but without duplication, of (i)
Indebtedness of the
Borrower and its Subsidiaries, excluding intercompany items, that,
in conformity
with GAAP, would be included on a consolidated balance sheet of the
Borrower and
its Subsidiaries (a) in respect of money borrowed, (b) in respect
of obligations
evidenced by a note, bond, debenture or other like written
obligation to pay
money, (c) in respect of obligations under Capital Leases, and (d)
in respect of
obligations under conditional sales or other title retention
agreements, and
(ii) Indebtedness of other Persons of the nature described in
clauses (a)
through (d) above which is guaranteed by the Borrower or a
Subsidiary or with
respect to which the Borrower or a Subsidiary is contingently
liable. In no
event shall the term include preferred stock.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any security
issued by such Person or of any agreement, instrument or other
undertaking to
which such Person is a party or by which it or any of its property
is bound.
"CONTROL" means the possession, directly or indirectly, of the
power to direct
or cause the direction of the management or policies of a Person,
whether
through the ability to exercise voting power, by contract or
otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative
thereto.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and
(b) an L/C
Credit Extension.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States, and all
other liquidation, conservatorship, bankruptcy, assignment for the
benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization,
or similar debtor relief Laws of the United States or other
applicable
jurisdictions from time to time in effect and affecting the rights
of creditors
generally.
"DEFAULT" means any event or condition that constitutes an Event of
Default or
that, with the giving of any notice, the passage of time, or both,
would be an
Event of Default.
"DEFAULT RATE" means (a) when used with respect to Obligations
other than L/C
Fees an interest rate equal to (i) the Base Rate PLUS (ii) the
Applicable Rate,
if any, applicable to Base Rate Loans PLUS (iii) 4% per annum;
PROVIDED,
HOWEVER, that with respect to a Eurodollar Rate Loan, the Default
Rate shall be
an interest rate equal to the interest rate (including any
Applicable Rate)
otherwise applicable to such Loan plus 4% per annum, and (b) when
used with
respect to L/C Fees, a rate equal to the Applicable Rate plus 4%
per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund
any portion of
the Committed Loans, participations in L/C Obligations required to
be funded by
it hereunder within one Business Day of the date required to be
funded by it
hereunder, (b) has otherwise failed to pay over to Agent or any
other Lender any
other amount required to be paid by it hereunder within one
Business Day of the
date when due, unless the subject of a good faith dispute, or (c)
has been
deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease
or other
disposition (including any sale and leaseback transaction) of any
property by
any Person, including any sale, assignment, transfer or other
disposal, with or
without recourse, of any notes or accounts receivable or any rights
and claims
associated therewith.
"DOLLAR" and "$" mean lawful money of the United States.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; and (c)
any other Person (other than a natural person) approved by (i)
Agent and the L/C
Issuer, and (ii) unless an Event of Default has occurred and is
continuing,
Borrower (each such approval not to be unreasonably withheld or
delayed);
PROVIDED that notwithstanding the foregoing, "Eligible Assignee"
shall not
include Borrower or any of Borrower's Affiliates or
Subsidiaries.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees,
permits, concessions, grants, franchises, licenses, agreements or
governmental
restrictions relating
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to pollution and the protection of the environment or the release
of any
materials into the environment, including those related to
hazardous substances
or wastes, air emissions and discharges to waste or public
systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise
(including any liability for damages, costs of environmental
remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any
of their
respective Subsidiaries directly or indirectly resulting from or
based upon (a)
violation of any Environmental Law, (b) the generation, use,
handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened
release of
any Hazardous Materials into the environment or (e) any contract,
agreement or
other consensual arrangement pursuant to which liability is assumed
or imposed
with respect to any of the foregoing.
"EQUITY INTERESTS" means, with respect to any Person, all of the
shares of
capital stock of (or other ownership or profit interests in) such
Person, all of
the warrants, options or other rights for the purchase or
acquisition from such
Person of shares of capital stock of (or other ownership or profit
interests in)
such Person, all of the securities convertible into or exchangeable
for shares
of capital stock of (or other ownership or profit interests in)
such Person or
warrants, rights or options for the purchase or acquisition from
such Person of
such shares (or such other interests), and all of the other
ownership or profit
interests in such Person (including partnership, member or trust
interests
therein), whether voting or nonvoting, and whether or not such
shares, warrants,
options, rights or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated)
under common control with Borrower within the meaning of Section
414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions
relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension Plan
subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or
partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan
or notification that a Multiemployer Plan is in reorganization; (d)
the filing
of a notice of intent to terminate, the treatment of a Plan
amendment as a
termination under Sections 4041 or 4041A of ERISA, or the
commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042
of ERISA for
the termination of, or the appointment of a trustee to administer,
any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability
under Title
IV of ERISA, other than for PBGC premiums due but not delinquent
under Section
4007 of ERISA, upon Borrower or any ERISA Affiliate.
"EURODOLLAR BASE RATE" has the meaning specified in the definition
of Eurodollar
Rate.
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"EURODOLLAR RATE" means for any Interest Period with respect to a
Eurodollar
Rate Loan, a rate per annum determined by Agent pursuant to the
following
formula:
EURODOLLAR BASE RATE
Eurodollar Rate = ---------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR BASE RATE" means, for such Interest Period (rounded
upwards,
as necessary, to the nearest 1/100 of 1%) the rate per annum equal
to
the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published
by Reuters (or other commercially available source providing
quotations
of BBA LIBOR as designated by Agent from time to time) at
approximately
11:00 a.m., London time, two Business Days prior to the
commencement of
such Interest Period, for Dollar deposits (for delivery on the
first day
of such Interest Period) with a term equivalent to such Interest
Period.
If such rate is not available at such time for any reason, then
the
"EURODOLLAR BASE RATE" for such Interest Period (rounded upwards,
as
necessary, to the nearest 1/100 of 1%) shall be the rate per
annum
determined by Agent to be the rate at which deposits in Dollars
for
delivery on the first day of such Interest Period in same day funds
in
the approximate amount of the Eurodollar Rate Loan being made,
continued
or converted by Bank of America and with a term equivalent to
such
Interest Period would be offered by Bank of America's London Branch
to
major banks in the London interbank eurodollar market at their
request
at approximately 11:00 a.m. (London time) two Business Days prior
to the
commencement of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest
Period, the reserve percentage (expressed as a decimal, carried out
to
five decimal places) in effect on such day, whether or not
applicable to
any Lender, under regulations issued from time to time by the Board
of
Governors of the Federal Reserve System of the United States
for
determining the maximum reserve requirement (including any
emergency,
supplemental or other marginal reserve requirement) with respect
to
Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar
Rate
Loan shall be adjusted automatically as of the effective date of
any
change in the Eurodollar Reserve Percentage.
"EURODOLLAR RATE LOAN" means a Committed Loan that bears interest
at a rate
based on the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCLUDED TAXES" means, with respect to Agent, any Lender, the L/C
Issuer or any
other recipient of any payment to be made by or on account of any
obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall
net income
(however denominated), and franchise taxes imposed on it (in lieu
of net income
taxes), by the jurisdiction (or any political subdivision thereof)
under the
laws of which such recipient is organized or in which its principal
office is
located or, in the case of any Lender, in which its applicable
Lending Office is
located, and (b) any branch profits taxes imposed by the United
States or any
similar tax imposed by any other jurisdiction in which Borrower is
located.
"EXISTING LETTER OF CREDIT" means the Irrevocable Standby Letter of
Credit
Number 68009213, dated October 5, 2005, in the face amount of
$1,730,137.00,
issued by Bank of America, N.A. for the account of Borrower with
Royal Bank of
Canada as the beneficiary, as the same may be amended or otherwise
modified from
time to time.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal
to the
weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day
next succeeding such day; PROVIDED that (a) if such day is not a
Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on
the next preceding Business Day as so published on the next
succeeding Business
Day, and (b) if no such rate is so published on such next
succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
(rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to Bank of
America on such day on such transactions as determined by
Agent.
"FRB" means the Board of Governors of the Federal Reserve System of
the United
States.
"GAAP" means generally accepted accounting principles in the United
States set
forth in the opinions and pronouncements of the Accounting
Principles Board and
the American Institute of Certified Public Accountants and
statements and
pronouncements
6
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of the Financial Accounting Standards Board or such other
principles as may be
approved by a significant segment of the accounting profession in
the United
States, that are applicable to the circumstances as of the date
of
determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States
or any other
nation, or of any political subdivision thereof, whether state or
local, and any
agency, authority, instrumentality, regulatory body, court, central
bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or
administrative powers or functions of or pertaining to government
(including any
supra-national bodies such as the European Union or the European
Central Bank).
"GUARANTEE" means, as to any Person, any (a) any obligation,
contingent or
otherwise, of such Person guaranteeing or having the economic
effect of
guaranteeing any Indebtedness or other obligation payable or
performable by
another Person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of such Person, direct or
indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or
payment of)
such Indebtedness or other obligation, (ii) to purchase or lease
property,
securities or services for the purpose of assuring the obligee in
respect of
such Indebtedness or other obligation of the payment or performance
of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity
capital or any other financial statement condition or liquidity or
level of
income or cash flow of the primary obligor so as to enable the
primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into
for the
purpose of assuring in any other manner the obligee in respect of
such
Indebtedness or other obligation of the payment or performance
thereof or to
protect such obligee against loss in respect thereof (in whole or
in part), or
(b) any Lien on any assets of such Person securing any Indebtedness
or other
obligation of any other Person, whether or not such Indebtedness or
other
obligation is assumed by such Person (or any right, contingent or
otherwise, of
any holder of such Indebtedness to obtain any such Lien). The
amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable
amount of the related primary obligation, or portion thereof, in
respect of
which such Guarantee is made or, if not stated or determinable, the
maximum
reasonably anticipated liability in respect thereof as determined
by the
guaranteeing Person in good faith. The term "Guarantee" as a verb
has a
corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes
and all hazardous or toxic substances, wastes or other pollutants,
including
petroleum or petroleum distillates, asbestos or asbestos-containing
materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, as to any Person at a particular time,
without
duplication(for example, Borrower's letters of credit securing
other
Indebtedness shall not count as Indebtedness independent of the
Indebtedness
being secured), all of the following, whether or not included as
indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes,
loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under
letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of
property or services (other than trade accounts payable in the
ordinary
course of business and, in each case, not past due for more than 60
days
after the date on which such trade account payable was
created);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien
on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention
agreements), whether or not such indebtedness shall have been
assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
7
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(g) all obligations of such Person to purchase, redeem, retire,
defease
or otherwise make any payment in respect of any Equity Interest in
such
Person or any other Person, provided that the term "Indebtedness"
shall
not include preferred stock ; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include the
Indebtedness of any partnership or joint venture (other than a
joint venture
that is itself a corporation or limited liability company) in which
such Person
is a general partner or a joint venturer, unless such Indebtedness
is expressly
made non-recourse to such Person. The amount of any net obligation
under any
Swap Contract on any date shall be deemed to be the Swap
Termination Value
thereof as of such date. The amount of any capital lease or
Synthetic Lease
Obligation as of any date shall be deemed to be the amount of
Attributable
Indebtedness in respect thereof as of such date.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in SECTION 10.04(b).
"INFORMATION" has the meaning specified in SECTION 10.07.
"INTEREST COVERAGE RATIO" means the ratio of Consolidated EBIT to
(Consolidated
Interest Expense PLUS preferred dividends paid).
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base
Rate Loan,
the last day of each Interest Period applicable to such Loan and
the Maturity
Date; PROVIDED, HOWEVER, that if any Interest Period for a
Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three
months after
the beginning of such Interest Period shall also be Interest
Payment Dates; and
(b) as to any Base Rate Loan, the last Business Day of each March,
June,
September and December and the Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the
period commencing
on the date such Eurodollar Rate Loan is disbursed or converted to
or continued
as a Eurodollar Rate Loan and ending on the date one, two, three or
six months
thereafter, as selected by Borrower in its Committed Loan Notice;
PROVIDED that:
(i) any Interest
Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business
Day
unless such Business Day falls in another calendar month, in which
case
such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest
Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest
Period) shall end on the last Business Day of the calendar month at
the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"INTERNAL CONTROL EVENT" means a material weakness in, or fraud
that involves
management or other employees who have a significant role in,
Borrower's
internal controls over financial reporting, in each case as
described in the
Securities Laws, in each case as described in the Securities Laws
and when
relevant requirements become effective as to Borrower under
regulations
promulgated under the Securities Laws.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or
investment by such Person, whether by means of (a) the purchase or
other
acquisition of capital stock or other securities of another Person,
(b) a loan,
advance or capital contribution to, Guarantee or assumption of debt
of, or
purchase or other acquisition of any other debt or equity
participation or
interest in, another Person, including any partnership or joint
venture interest
in such other Person and any arrangement pursuant to which the
investor
Guarantees Indebtedness of such other Person, or (c) the purchase
or other
acquisition (in one transaction or a series of transactions) of
assets of
another Person that constitute a business unit. For purposes of
covenant
compliance, the amount of any Investment shall be the amount
actually invested,
without adjustment for subsequent increases or decreases in the
value of such
Investment.
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"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the
"International Standby
Practices 1998" published by the Institute of International Banking
Law &
Practice (or such later version thereof as may be in effect at the
time of
issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit, the
L/C
Application, and any other document, agreement and instrument
entered into by
the L/C Issuer and Borrower (or any Subsidiary) or in favor of the
L/C Issuer
and relating to any such Letter of Credit.
"LAWS" means, collectively, all international, foreign, Federal,
state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and
administrative or judicial precedents or authorities, including
the
interpretation or administration thereof by any Governmental
Authority charged
with the enforcement, interpretation or administration thereof, and
all
applicable administrative orders, directed duties, requests,
licenses,
authorizations and permits of, and agreements with, any
Governmental Authority,
in each case whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Lender, such Lender's
funding of its
participation in any L/C Borrowing in accordance with its
Applicable Percentage.
"L/C APPLICATION" means an application and agreement for the
issuance or
amendment of a Letter of Credit in the form from time to time in
use by the L/C
Issuer.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any
Letter of Credit which has not been reimbursed on the date when
made or
refinanced as a Committed Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit,
the issuance
thereof or extension of the expiry date thereof, or the increase of
the amount
thereof.
"L/C EXPIRATION DATE" means the day that is thirty days prior to
the Maturity
Date then in effect (or, if such day is not a Business Day, the
next preceding
Business Day).
"L/C FEE" has the meaning specified in Section 2.03(i).
"L/C ISSUER" means Bank of America in its capacity as issuer of
Letters of
Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the
aggregate amount
available to be drawn under all outstanding Letters of Credit PLUS
the aggregate
of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of
computing the amount available to be drawn under any Letter of
Credit, the
amount of such Letter of Credit shall be determined in accordance
with SECTION
1.06. For all purposes of this Agreement, if on any date of
determination a
Letter of Credit has expired by its terms but any amount may still
be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of
Credit shall be deemed to be "outstanding" in the amount so
remaining available
to be drawn.
"L/C SUBLIMIT" means an amount equal to $2,000,000. The L/C
Sublimit is part of,
and not in addition to, the Aggregate Commitments.
"LENDER" has the meaning specified in the introductory paragraph
hereto.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender
described as such in such Lender's Administrative Questionnaire, or
such other
office or offices as a Lender may from time to time notify Borrower
and Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder and
shall include
the Existing Letter of Credit. A Letter of Credit may be a
commercial letter of
credit or a standby letter of credit.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference,
priority or other security interest or preferential arrangement in
the nature of
a security interest of any kind
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or nature whatsoever (including any conditional sale or other title
retention
agreement, any easement, right of way or other encumbrance on title
to real
property, and any financing lease having substantially the same
economic effect
as any of the foregoing).
"LOAN" means an extension of credit by a Lender to Borrower under
ARTICLE II in
the form of a Committed Loan.
"LOAN DOCUMENTS" means this Agreement, each Note, each Issuer
Document, the
Agent Fee Letter and each Collateral Document.
"LOAN PARTIES" means, collectively, Borrower and each Person (other
than Agent,
the L/C Issuer, or any Lender) executing a Loan Document.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in,
or a material
adverse effect upon, the operations, business, properties,
liabilities (actual
or contingent), condition (financial or otherwise) or prospects of
Borrower or
Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the
ability of any Loan Party to perform its obligations under any Loan
Document to
which it is a party; or (c) a material adverse effect upon the
legality,
validity, binding effect or enforceability against any Loan Party
of any Loan
Document to which it is a party.
"MATURITY DATE" means October 21, 2008.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in
Section 4001(a)(3) of ERISA, to which Borrower or any ERISA
Affiliate makes or
is obligated to make contributions, or during the preceding five
plan years, has
made or been obligated to make contributions.
"NOTE" means a promissory note made by Borrower in favor of a
Lender evidencing
Loans made by such Lender, substantially in the form of EXHIBIT
C.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations,
covenants and duties of, any Loan Party arising under any Loan
Document, Swap
Contract or otherwise with respect to any Loan or Letter of Credit,
whether
direct or indirect (including those acquired by assumption),
absolute or
contingent, due or to become due, now existing or hereafter arising
and
including interest and fees that accrue after the commencement by
or against any
Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief
Laws naming such Person as the debtor in such proceeding,
regardless of whether
such interest and fees are allowed claims in such proceeding.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the
certificate or articles of incorporation and the bylaws (or
equivalent or
comparable constitutive documents with respect to any non-U.S.
jurisdiction);
(b) with respect to any limited liability company, the certificate
or articles
of formation or organization and operating agreement; and (c) with
respect to
any partnership, joint venture, trust or other form of business
entity, the
partnership, joint venture or other applicable agreement of
formation or
organization and any agreement, instrument, filing or notice with
respect
thereto filed in connection with its formation or organization with
the
applicable Governmental Authority in the jurisdiction of its
formation or
organization and, if applicable, any certificate or articles of
formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp, intangible or
documentary taxes
or any other excise or property taxes, charges or similar levies
arising from
any payment made hereunder or under any other Loan Document or from
the
execution, delivery or enforcement of, or otherwise with respect
to, this
Agreement or any other Loan Document.
"OUTSTANDING AMOUNT" means (i) with respect to Committed Loans on
any date, the
aggregate outstanding principal amount thereof after giving effect
to any
borrowings and prepayments or repayments of Committed Loans
occurring on such
date; and (ii) with respect to any L/C Obligations on any date, the
amount of
such L/C Obligations on such date after giving effect to any L/C
Credit
Extension occurring on such date and any other changes in the
aggregate amount
of the L/C Obligations as of such date, including as a result of
any
reimbursements by Borrower of Unreimbursed Amounts.
"PARTICIPANT" has the meaning specified in SECTION 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
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"PENSION PLAN" means any "employee pension benefit plan" (as such
term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is
subject to Title IV of ERISA and is sponsored or maintained by
Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate
contributes or has
an obligation to contribute, or in the case of a multiple employer
or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during
the immediately preceding five plan years.
"PERSON" means any natural person, corporation, limited liability
company,
trust, joint venture, association, company, partnership,
Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined
in Section
3(3) of ERISA) established by Borrower or, with respect to any such
plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"PLATFORM" has the meaning specified in SECTION 6.02.
"REGISTER" has the meaning specified in SECTION 10.06(c).
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified in
the Securities
Laws and shall be independent of Borrower as prescribed by the
Securities Laws.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates
and the partners, directors, officers, employees, agents and
advisors of such
Person and of such Person's Affiliates.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of
ERISA, other than events for which the 30 day notice period has
been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a
Borrowing, conversion
or continuation of Committed Loans, a Committed Loan Notice, and
(b) with
respect to an L/C Credit Extension, a L/C Application.
"REQUIRED LENDERS" means, as of any date of determination, Lenders
having more
than 50% of the Aggregate Commitments or, if the commitment of each
Lender to
make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions
have been terminated pursuant to SECTION 8.02, Lenders holding in
the aggregate
more than 50% of the Total Outstandings (with the aggregate amount
of each
Lender's risk participation and funded participation in L/C
Obligations being
deemed "held" by such Lender for purposes of this definition);
PROVIDED that the
Commitment of, and the portion of the Total Outstandings held or
deemed held by,
any Defaulting Lender shall be excluded for purposes of making a
determination
of Required Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief
financial officer, chief accounting officer, treasurer or assistant
treasurer of
a Loan Party. Any document delivered hereunder that is signed by a
Responsible
Officer of a Loan Party shall be conclusively presumed to have been
authorized
by all necessary corporate, partnership and/or other action on the
part of such
Loan Party and such Responsible Officer shall be conclusively
presumed to have
acted on behalf of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash,
securities or other property) with respect to any capital stock or
other Equity
Interest of Borrower or any Subsidiary, or any payment (whether in
cash,
securities or other property), including any sinking fund or
similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or
termination of any such capital stock or other Equity Interest or
on account of
any return of capital to Borrower's stockholders, partners or
members (or the
equivalent Person thereof).
"SARBANES-OXLEY" means the Sarbanes-Oxley Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental
Authority succeeding to any of its principal functions.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities
Exchange Act
of 1934, Sarbanes-Oxley and the applicable accounting and auditing
principles,
rules, standards and practices promulgated, approved or
incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the
foregoing may
be amended and in effect on any applicable date hereunder.
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"SUBORDINATED LIABILITIES" means liabilities subordinated to the
Obligations in
a manner acceptable to Agent in its sole discretion.
"SUBSIDIARY" of a Person means a corporation, partnership, joint
venture,
limited liability company or other business entity of which a
majority of the
shares of securities or other interests having ordinary voting
power for the
election of directors or other governing body (other than
securities or
interests having such power only by reason of the happening of a
contingency)
are at the time beneficially owned, or the management of which is
otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both,
by such Person. Unless otherwise specified, all references herein
to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of
Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis
swaps,
credit derivative transactions, forward rate transactions,
commodity swaps,
commodity options, forward commodity contracts, equity or equity
index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or
forward bond price or forward bond index transactions, interest
rate options,
forward foreign exchange transactions, cap transactions, floor
transactions,
collar transactions, currency swap transactions, cross-currency
rate swap
transactions, currency options, spot contracts, or any other
similar
transactions or any combination of any of the foregoing (including
any options
to enter into any of the foregoing), whether or not any such
transaction is
governed by or subject to any master agreement, and (b) any and all
transactions
of any kind, and the related confirmations, which are subject to
the terms and
conditions of, or governed by, any form of master agreement
published by the
International Swaps and Derivatives Association, Inc., any
International Foreign
Exchange Master Agreement, or any other master agreement (any such
master
agreement, together with any related schedules, a "MASTER
AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts,
after taking into account the effect of any legally enforceable
netting
agreement relating to such Swap Contracts, (a) for any date on or
after the date
such Swap Contracts have been closed out and termination value(s)
determined in
accordance therewith, such termination value(s), and (b) for any
date prior to
the date referenced in clause (a), the amount(s) determined as
the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or
more mid-market or other readily available quotations provided by
any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a
Lender).
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a
Person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an
agreement for the use or possession of property creating
obligations that do not
appear on the balance sheet of such Person but which, upon the
insolvency or
bankruptcy of such Person, would be characterized as the
indebtedness of such
Person (without regard to accounting treatment).
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental
Authority, including any interest, additions to tax or penalties
applicable
thereto.
"THRESHOLD AMOUNT" means $500,000.
"TOTAL LIABILITIES" means the sum of current liabilities plus long
term
liabilities.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all
Loans and all
L/C Obligations.
"TYPE" means, with respect to a Committed Loan, its character as a
Base Rate
Loan or a Eurodollar Rate Loan.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's
benefit
liabilities under Section 4001(a)(16) of ERISA, over the current
value of that
Pension Plan's assets, determined in accordance with the
assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for
the applicable
plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning specified in SECTION
2.03(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and
each other Loan Document, unless otherwise specified herein or in
such other
Loan Document:
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(a)
The definitions of terms herein shall apply equally to the singular
and
plural forms of the terms defined. Whenever the context may
require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words
"INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to be
followed by the
phrase "without limitation." The word "WILL" shall be construed to
have the same
meaning and effect as the word "SHALL." Unless the context requires
otherwise,
(i) any definition of or reference to any agreement, instrument or
other
document (including any Organization Document) shall be construed
as referring
to such agreement, instrument or other document as from time to
time amended,
supplemented or otherwise modified (subject to any restrictions on
such
amendments, supplements or modifications set forth herein or in any
other Loan
Document), (ii) any reference herein to any Person shall be
construed to include
such Person's successors and assigns, (iii) the words "HEREIN,"
"HEREOF" and
"HEREUNDER," and words of similar import when used in any Loan
Document, shall
be construed to refer to such Loan Document in its entirety and not
to any
particular provision thereof, (iv) all references in a Loan
Document to
Articles, Sections, Exhibits and Schedules shall be construed to
refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in
which such references appear, (v) any reference to any law shall
include all
statutory and regulatory provisions consolidating, amending,
replacing or
interpreting such law and any reference to any law or regulation
shall, unless
otherwise specified, refer to such law or regulation as amended,
modified or
supplemented from time to time, and (vi) the words "ASSET" and
"PROPERTY" shall
be construed to have the same meaning and effect and to refer to
any and all
tangible and intangible assets and properties, including cash,
securities,
accounts and contract rights.
(b) In the computation
of periods of time from a specified date to a later
specified date, the word "FROM" means "FROM AND INCLUDING;" the
words "TO" and
"UNTIL" each mean "TO BUT EXCLUDING;" and the word "THROUGH" means
"TO AND
INCLUDING."
(c) Section headings
herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the
interpretation of this
Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) GENERALLY. All accounting terms not
specifically or completely defined herein shall be construed in
conformity with,
and all financial data (including financial ratios and other
financial
calculations) required to be submitted pursuant to this Agreement
shall be
prepared in conformity with, GAAP applied on a consistent basis, as
in effect
from time to time, applied in a manner consistent with that used in
preparing
the Audited Financial Statements, EXCEPT as otherwise specifically
prescribed
herein.
(b) CHANGES IN GAAP. If at any time any change in GAAP would affect
the
computation of any financial ratio or requirement set forth in any
Loan
Document, and either Borrower or the Required Lenders shall so
request, Agent,
Lenders and Borrower shall negotiate in good faith to amend such
ratio or
requirement to preserve the original intent thereof in light of
such change in
GAAP (subject to the approval of the Required Lenders); PROVIDED
THAT, until so
amended, (i) such ratio or requirement shall continue to be
computed in
accordance with GAAP prior to such change therein and (ii) Borrower
shall
provide to Agent and Lenders financial statements and other
documents required
under this Agreement or as reasonably requested hereunder setting
forth a
reconciliation between calculations of such ratio or requirement
made before and
after giving effect to such change in GAAP.
(c)
CONSOLIDATION OF VARIABLE INTEREST ENTITIES. All references herein
to
consolidated financial statements of Borrower and its Subsidiaries
or to the
determination of any amount for Borrower and its Subsidiaries on a
consolidated
basis or any similar reference shall, in each case, be deemed to
include each
variable interest entity that the Borrower is required to
consolidate pursuant
to FASB Interpretation No. 46 - Consolidation of Variable Interest
Entities: an
interpretation of ARB No. 51 (January 2003) as if such variable
interest entity
were a Subsidiary as defined herein.
1.04 ROUNDING. Any financial ratios required to be maintained
by
Borrower pursuant to this Agreement shall be calculated by dividing
the
appropriate component by the other component, carrying the result
to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references
herein to
times of day shall be references to Eastern time (daylight or
standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein
the
amount of a Letter of Credit at any time shall be deemed to be the
stated amount
of such Letter of Credit in effect at such time; PROVIDED, HOWEVER,
that with
respect to any Letter of Credit that, by its terms or the terms of
any Issuer
Document related thereto, provides for one or more automatic
increases in the
stated amount thereof, the amount of such Letter of Credit shall be
deemed to be
the maximum stated amount
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of such Letter of Credit after giving effect to all such increases,
whether or
not such maximum stated amount is in effect at such time.
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS. Subject to the terms and conditions set
forth
herein, each Lender severally agrees to make loans (each such loan,
a "COMMITTED
LOAN") to Borrower from time to time, on any Business Day during
the
Availability Period, in an aggregate amount not to exceed at any
time
outstanding the amount of such Lender's Commitment; PROVIDED,
HOWEVER, that
after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount
of the Committed Loans of any Lender, PLUS such Lender's Applicable
Percentage
of the Outstanding Amount of all L/C Obligations shall not exceed
such Lender's
Commitment. Within the limits of each Lender's Commitment, and
subject to the
other terms and conditions hereof, Borrower may borrow under this
SECTION 2.01,
prepay under SECTION 2.05, and reborrow under this SECTION 2.01.
Committed Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a)
Each Committed Borrowing, each conversion of Committed Loans from
one Type to
the other, and each continuation of Eurodollar Rate Loans shall be
made upon
Borrower's irrevocable notice to Agent, which may be given by
telephone. Each
such notice must be received by Agent not later than 11:00 a.m. (i)
three
Business Days prior to the requested date of any Borrowing of,
conversion to or
continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate
Loans to Base Rate Committed Loans, and (ii) on the requested date
of any
Borrowing of Base Rate Committed Loans. Each telephonic notice by
Borrower
pursuant to this SECTION 2.02(a) must be confirmed promptly by
delivery to Agent
of a written Committed Loan Notice, appropriately completed and
signed by a
Responsible Officer of Borrower. Each Borrowing of, conversion to
or
continuation of Eurodollar Rate Loans shall be in a principal
amount of $100,000
or a whole multiple of $1,000 in excess thereof. Except as provided
in SECTION
2.03(c) , each Borrowing of or conversion to Base Rate Committed
Loans shall be
in a principal amount of $100,000 or a whole multiple of $1,000 in
excess
thereof. Each Committed Loan Notice (whether telephonic or written)
shall
specify (i) whether Borrower is requesting a Committed Borrowing, a
conversion
of Committed Loans from one Type to the other, or a continuation of
Eurodollar
Rate Loans, (ii) the requested date of the Borrowing, conversion
or
continuation, as the case may be (which shall be a Business Day),
(iii) the
principal amount of Committed Loans to be borrowed, converted or
continued, (iv)
the Type of Committed Loans to be borrowed or to which existing
Committed Loans
are to be converted, and (v) if applicable, the duration of the
Interest Period
with respect thereto. If Borrower fails to specify a Type of
Committed Loan in a
Committed Loan Notice or if Borrower fails to give a timely notice
requesting a
conversion or continuation, then the applicable Committed Loans
shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion
to Base Rate
Loans shall be effective as of the last day of the Interest Period
then in
effect with respect to the applicable Eurodollar Rate Loans. If
Borrower
requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans
in any such Committed Loan Notice, but fails to specify an Interest
Period, it
will be deemed to have specified an Interest Period of one
month.
(b)
Following receipt of a Committed Loan Notice, Agent shall within
one
Business Day thereafter notify each Lender of the amount of its
Applicable
Percentage of the applicable Committed Loans, and if no timely
notice of a
conversion or continuation is provided by Borrower, Agent shall
notify each
Lender of the details of any automatic conversion to Base Rate
Loans described
in the preceding subsection. In the case of a Committed Borrowing,
each Lender
shall make the amount of its Committed Loan available to Agent in
immediately
available funds at Administrative Agent's Office not later than
1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.
Upon
satisfaction of the applicable conditions set forth in SECTION 4.02
(and, if
such Borrowing is the initial Credit Extension, SECTION 4.01),
Agent shall make
all funds so received available to Borrower in like funds as
received by Agent
either by (i) crediting the account of Borrower on the books of
Bank of America
with the amount of such funds or (ii) wire transfer of such funds,
in each case
in accordance with instructions provided to (and reasonably
acceptable to) Agent
by Borrower; PROVIDED, HOWEVER, that if, on the date the Committed
Loan Notice
with respect to such Borrowing is given by Borrower, there are L/C
Borrowings
outstanding, then the proceeds of such Borrowing FIRST, shall be
applied, to the
payment in full of any such L/C Borrowings, and SECOND, shall be
made available
to Borrower as provided above.
(c)
Except as otherwise provided herein, a Eurodollar Rate Loan may
be
continued or converted only on the last day of an Interest Period
for such
Eurodollar Rate Loan. During the existence of a Default, no Loans
may be
requested as, converted to or continued as Eurodollar Rate Loans
without the
consent of the Required Lenders, and the Required Lenders may
demand that any or
all of the then outstanding Eurodollar Rate Loans be converted
immediately to
Base Rate Committed Loans and Borrower agrees to pay all amounts
due under
SECTION 3.05 in accordance with the terms thereof due to any such
conversion..
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(d)
Agent shall promptly notify Borrower and Lenders of the interest
rate
applicable to any Interest Period for Eurodollar Rate Loans upon
determination
of such interest rate.
(e)
After giving effect to all Committed Borrowings, all conversions
of
Committed Loans from one Type to the other, and all continuations
of Committed
Loans as the same Type, there shall not be more than two Interest
Periods in
effect with respect to Committed Loans.
2.03 LETTERS OF CREDIT. (a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C
Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in
this SECTION 2.03, (1) from time to time on any Business Day during
the period
from the Closing Date until the L/C Expiration Date, to issue
Letters of Credit
for the account of Borrower or its Subsidiaries, and to amend or
extend Letters
of Credit previously issued by it, in accordance with subsection
(b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the
Lenders severally
agree to participate in Letters of Credit issued for the account of
Borrower or
its Subsidiaries and any drawings thereunder; PROVIDED that after
giving effect
to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate
Outstanding Amount of the Committed Loans of any Lender, PLUS such
Lender's
Applicable Percentage of the Outstanding Amount of all L/C
Obligations shall not
exceed such Lender's Commitment, or (z) the Outstanding Amount of
the L/C
Obligations shall not exceed the L/C Sublimit. Each request by
Borrower for the
issuance or amendment of a Letter of Credit shall be deemed to be
a
representation by Borrower that the L/C Credit Extension so
requested complies
with the conditions set forth in the proviso to the preceding
sentence. Within
the foregoing limits, and subject to the terms and conditions
hereof, Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly
Borrower may, during the foregoing period, obtain Letters of Credit
to replace
Letters of Credit that have expired or that have been drawn upon
and reimbursed.
All Existing Letters of Credit shall be deemed to have been issued
pursuant
hereto, and from and after the Closing Date shall be subject to and
governed by
the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A)
subject to Section 2.03(b)(iv), the expiry date of such requested
Letter
of Credit would occur more than twelve months after the date of
issuance or last
extension, unless the Required Lenders have approved such expiry
date; or
(B)
the expiry date of such requested Letter of Credit would occur
after the
L/C Expiration Date, unless all the Lenders have approved such
expiry date.
(iii) The L/C Issuer shall be under no obligation to issue any
Letter of
Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing
such Letter of Credit, or any Law applicable to the L/C Issuer or
any request or
directive (whether or not having the force of law) from any
Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that
the L/C Issuer refrain from, the issuance of letters of credit
generally or such
Letter of Credit in particular or shall impose upon the L/C Issuer
with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in
effect on
the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss,
cost or expense which was not applicable on the Closing Date and
which the L/C
Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of
the L/C Issuer;
(C) except as otherwise agreed by Agent and the L/C Issuer, such
Letter of
Credit is in an initial stated amount less than $100,000, in the
case of a
commercial Letter of Credit, or $500,000, in the case of a standby
Letter of
Credit;
(D) such Letter of Credit is to be denominated in a currency other
than Dollars;
(E) a default of any Lender's obligations to fund under Section
2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless
the L/C
Issuer has entered into satisfactory arrangements with Borrower or
such Lender
to eliminate the L/C Issuer's risk with respect to such Lender;
or
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(F) unless specifically provided for in this Agreement, such Letter
of Credit
contains any provisions for automatic reinstatement of the stated
amount after
any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C
Issuer would not be permitted at such time to issue such Letter of
Credit in its
amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of
Credit if (A) the L/C Issuer would have no obligation at such time
to issue such
Letter of Credit in its amended form under the terms hereof, or (B)
the
beneficiary of such Letter of Credit does not accept the proposed
amendment to
such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to
any Letters of Credit issued by it and the documents associated
therewith, and
the L/C Issuer shall have all of the benefits and immunities (A)
provided to
Agent in ARTICLE IX with respect to any acts taken or omissions
suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be
issued by it and Issuer Documents pertaining to such Letters of
Credit as fully
as if the term "Administrative Agent" or "Agent" as used in ARTICLE
IX included
the L/C Issuer with respect to such acts or omissions, and (B) as
additionally
provided herein with respect to the L/C Issuer.
(b)
PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT;
AUTO-EXTENSION LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the case
may
be, upon the request of Borrower delivered to the L/C Issuer (with
a copy to
Agent) in the form of a L/C Application, appropriately completed
and signed by a
Responsible Officer of Borrower. Such L/C Application must be
received by the
L/C Issuer and Agent not later than 11:00 a.m. at least two
Business Days (or
such later date and time as Agent and the L/C Issuer may agree in a
particular
instance in their sole discretion) prior to the proposed issuance
date or date
of amendment, as the case may be. In the case of a request for an
initial
issuance of a Letter of Credit, such L/C Application shall specify
in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance
date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount
thereof; (C) the expiry date thereof; (D) the name and address of
the
beneficiary thereof; (E) the documents to be presented by such
beneficiary in
case of any drawing thereunder; (F) the full text of any
certificate to be
presented by such beneficiary in case of any drawing thereunder;
and (G) such
other matters as the L/C Issuer may require. In the case of a
request for an
amendment of any outstanding Letter of Credit, such L/C Application
shall
specify in form and detail satisfactory to the L/C Issuer (A) the
Letter of
Credit to be amended; (B) the proposed date of amendment thereof
(which shall be
a Business Day); (C) the nature of the proposed amendment; and (D)
such other
matters as the L/C Issuer may require. Additionally, Borrower shall
furnish to
the L/C Issuer and Agent such other documents and information
pertaining to such
requested Letter of Credit issuance or amendment, including any
Issuer
Documents, as the L/C Issuer or Agent may require.
(ii) Promptly after receipt of any L/C Application at the address
set
forth in SECTION 10.02 for receiving L/C Applications and
related
correspondence, the L/C Issuer will confirm with Agent (by
telephone or in
writing) that Agent has received a copy of such L/C Application
from Borrower
and, if not, the L/C Issuer will provide Agent with a copy thereof.
Unless the
L/C Issuer has received written notice from any Lender, Agent or
any Loan Party,
at least one Business Day prior to the requested date of issuance
or amendment
of the applicable Letter of Credit, that one or more applicable
conditions in
ARTICLE IV shall not then be satisfied, then, subject to the terms
and
conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter
of Credit for the account of Borrower (or the applicable
Subsidiary) or enter
into the applicable amendment, as the case may be, in each case in
accordance
with the L/C Issuer's usual and customary business practices.
Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed
to, and
hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a
risk participation in such Letter of Credit in an amount equal to
the product of
such Lender's Applicable Percentage TIMES the amount of such Letter
of Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any
amendment to a Letter of Credit to an advising bank with respect
thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to
Borrower and Agent
a true and complete copy of such Letter of Credit or amendment.
(iv) If Borrower so requests in any applicable L/C Application, the
L/C
Issuer may, in its sole and absolute discretion, agree to issue a
Letter of
Credit that has automatic extension provisions (each, an
"AUTO-EXTENSION LETTER
OF CREDIT"); provided that any such Auto-Extension Letter of Credit
must permit
the L/C Issuer to prevent any such extension at least once in each
twelve-month
period (commencing with the date of issuance of such Letter of
Credit) by giving
prior notice to the beneficiary thereof not later than a day (the
"NON-EXTENSION
NOTICE DATE") in each such twelve-month period to be agreed upon at
the time
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such Letter of Credit is issued. Unless otherwise directed by the
L/C Issuer,
Borrower shall not be required to make a specific request to the
L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has
been issued, the
Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer
to permit the extension of such Letter of Credit at any time to an
expiry date
not later than the L/C Expiration Date; provided, however, that the
L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has
determined that it
would not be permitted, or would have no obligation, at such time
to issue such
Letter of Credit in its revised form (as extended) under the terms
hereof (by
reason of the provisions of clause (ii) or (iii) of SECTION 2.03(a)
or
otherwise), or (B) it has received notice (which may be by
telephone or in
writing) on or before the day that is five Business Days before
the
Non-Extension Notice Date (1) from Agent that the Required Lenders
have elected
not to permit such extension or (2) from Agent, any Lender or
Borrower that one
or more of the applicable conditions specified in Section 4.02 is
not then
satisfied, and in each such case directing the L/C Issuer not to
permit such
extension.
(v) If Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute
discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement
of all or a
portion of the stated amount thereof after any drawing thereunder
(each, an
"AUTO-REINSTATEMENT LETTER OF CREDIT"). Unless otherwise directed
by the L/C
Issuer, Borrower shall not be required to make a specific request
to the L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement
Letter of Credit
has been issued, except as provided in the following sentence, the
Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer
to reinstate
all or a portion of the stated amount thereof in accordance with
the provisions
of such Letter of Credit. Notwithstanding the foregoing, if
such
Auto-Reinstatement Letter of Credit permits the L/C Issuer to
decline to
reinstate all or any portion of the stated amount thereof after a
drawing
thereunder by giving notice of such non-reinstatement within a
specified number
of days after such drawing (the "NON-REINSTATEMENT DEADLINE"), the
L/C Issuer
shall not permit such reinstatement if it has received a notice
(which may be by
telephone or in writing) on or before the day that is five Business
Days before
the Non-Reinstatement Deadline (A) from Agent that the Required
Lenders have
elected not to permit such reinstatement or (B) from Agent, any
Lender or
Borrower that one or more of the applicable conditions specified in
SECTION 4.02
is not then satisfied (treating such reinstatement as an L/C Credit
Extension
for purposes of this clause) and, in each case, directing the L/C
Issuer not to
permit such reinstatement.
(c)
DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any
notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify
Borrower and Agent thereof. Not later than 11:00 a.m. on the date
of any payment
by the L/C Issuer under a Letter of Credit (each such date, an
"HONOR DATE"),
Borrower shall reimburse the L/C Issuer through Agent in an amount
equal to the
amount of such drawing. If Borrower fails to so reimburse the L/C
Issuer by such
time, Agent shall promptly notify each Lender of the Honor Date,
the amount of
the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the
amount of such
Lender's Applicable Percentage thereof. In such event, Borrower
shall be deemed
to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to
the minimum and multiples specified in SECTION 2.02 for the
principal amount of
Base Rate Loans, but subject to the amount of the unutilized
portion of the
Aggregate Commitments and the conditions set forth in SECTION 4.02
(other than
the delivery of a Committed Loan Notice). Any notice given by the
L/C Issuer or
Agent pursuant to this SECTION 2.03(c)(i) may be given by telephone
if
immediately confirmed in writing; PROVIDED that the lack of such an
immediate
confirmation shall not affect the conclusiveness or binding effect
of such
notice.
(ii) Each Lender shall upon any notice pursuant to SECTION
2.03(c)(i)
make funds available to Agent for the account of the L/C Issuer at
the
Administrative Agent's Office in an amount equal to its Applicable
Percentage of
the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified
in such notice by Agent, whereupon, subject to the provisions of
SECTION
2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have
made a Base Rate Committed Loan to Borrower in such amount. Agent
shall remit
the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions
set forth in SECTION 4.02 cannot be satisfied or for any other
reason, Borrower
shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the
amount of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing
shall be due and payable on demand (together with interest) and
shall bear
interest at the Default Rate. In such event, each Lender's payment
to Agent for
the account of the L/C Issuer pursuant to SECTION 2.03(c)(ii) shall
be deemed
payment in respect of its participation in such L/C Borrowing and
shall
constitute an L/C Advance from such Lender in satisfaction of its
participation
obligation under this SECTION 2.03.
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(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant
to this SECTION 2.03(c) to reimburse the L/C Issuer for any amount
drawn under
any Letter of Credit, interest in respect of such Lender's
Applicable Percentage
of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit,
as
contemplated by this SECTION 2.03(c), shall be absolute and
unconditional and
shall not be affected by any circumstance, including (A) any
setoff,
counterclaim, recoupment, defense or other right which such Lender
may have
against the L/C Issuer, Borrower or any other Person for any reason
whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence,
event or condition, whether or not similar to any of the foregoing;
PROVIDED,
HOWEVER, that each Lender's obligation to make Committed Loans
pursuant to this
SECTION 2.03(c) is subject to the conditions set forth in SECTION
4.02 (other
than delivery by Borrower of a Committed Loan Notice). No such
making of an L/C
Advance shall relieve or otherwise impair the obligation of
Borrower to
reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer
under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to Agent for the account
of
the L/C Issuer any amount required to be paid by such Lender
pursuant to the
foregoing provisions of this SECTION 2.03(c) by the time specified
in SECTION
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such
Lender
(acting through Agent), on demand, such amount with interest
thereon for the
period from the date such payment is required to the date on which
such payment
is immediately available to the L/C Issuer at a rate per annum
equal to the
greater of the Federal Funds Rate and a rate determined by the L/C
issuer in
accordance with banking industry rules on interbank compensation,
PLUS any
administrative, processing or similar fees customarily charged by
the LC/ Issuer
in connection with the foregoing. A certificate of the L/C Issuer
submitted to
any Lender (through Agent) with respect to any amounts owing under
this clause
(vi) shall be conclusive absent manifest error.
(d)
REPAYMENT OF
PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under any
Letter
of Credit and has received from any Lender such Lender's L/C
Advance in respect
of such payment in accordance with SECTION 2.03(c), if Agent
receives for the
account of the L/C Issuer any payment in respect of the related
Unreimbursed
Amount or interest thereon (whether directly from Borrower or
otherwise,
including proceeds of Cash Collateral applied thereto by Agent),
Agent will
distribute to such Lender within two Business Days thereafter its
Applicable
Percentage thereof (appropriately adjusted, in the case of interest
payments, to
reflect the period of time during which such Lender's L/C Advance
was
outstanding) in the same funds as those received by Agent.
(ii) If any payment received by Agent for the account of the L/C
Issuer
pursuant to SECTION 2.03(c)(i) is required to be returned under any
of the
circumstances described in SECTION 10.05 (including pursuant to any
settlement
entered into by the L/C Issuer in its discretion), each Lender
shall pay to
Agent for the account of the L/C Issuer its Applicable Percentage
thereof on
demand of Agent, plus interest thereon from the date of such demand
to the date
such amount is returned by such Lender, at a rate per annum equal
to the Federal
Funds Rate from time to time in effect. The obligations of Lenders
under this
clause shall survive the payment in full of the Obligations and the
termination
of this Agreement.
(e)
OBLIGATIONS ABSOLUTE. The obligation of Borrower to reimburse the
L/C
Issuer for each drawing under each Letter of Credit and to repay
each L/C
Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of
Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or
other
right that Borrower or any Subsidiary may have at any time against
any
beneficiary or any transferee of such Letter of Credit (or any
Person for whom
any such beneficiary or any such transferee may be acting), the L/C
Issuer or
any other Person, whether in connection with this Agreement, the
transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient
in any respect or any statement therein being untrue or inaccurate
in any
respect; or any loss or delay in the transmission or otherwise of
any document
required in order to make a drawing under such Letter of
Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against
presentation of a draft or certificate that does not strictly
comply with the
terms of such Letter of Credit; or any payment made by the L/C
Issuer under such
Letter of Credit to
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any Person purporting to be a trustee in bankruptcy,
debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or
other
representative of or successor to any beneficiary or any transferee
of such
Letter of Credit, including any arising in connection with any
proceeding under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including any other circumstance
that might
otherwise constitute a defense available to, or a discharge of,
Borrower or any
Subsidiary.
Borrower shall promptly examine a copy of each Letter of Credit and
each
amendment thereto that is delivered to it and, in the event of any
claim of
noncompliance with Borrower's instructions or other irregularity,
Borrower will
immediately notify the L/C Issuer. Borrower shall be conclusively
deemed to have
waived any such claim against the L/C Issuer and its correspondents
unless such
notice is given as aforesaid.
(f)
ROLE OF L/C ISSUER. Each Lender and Borrower agree that, in paying
any
drawing under a Letter of Credit, the L/C Issuer shall not have
any
responsibility to obtain any document (other than any sight draft,
certificates
and documents expressly required by the Letter of Credit) or to
ascertain or
inquire as to the validity or accuracy of any such document or the
authority of
the Person executing or delivering any such document. None of the
L/C Issuer,
Agent, any of their respective Related Parties nor any
correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i)
any action taken or omitted in connection herewith at the request
or with the
approval of Lenders or the Required Lenders, as applicable; (ii)
any action
taken or omitted in the absence of gross negligence or willful
misconduct; or
(iii) the due execution, effectiveness, validity or enforceability
of any
document or instrument related to any Letter of Credit or Issuer
Document.
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or
transferee with respect to its use of any Letter of Credit;
PROVIDED, HOWEVER,
that this assumption is not intended to, and shall not, preclude
Borrower's
pursuing such rights and remedies as it may have against the
beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, Agent,
any of their respective Related Parties nor any correspondent,
participant or
assignee of the L/C Issuer, shall be liable or responsible for any
of the
matters described in clauses (i) through (v) of SECTION 2.03(e);
PROVIDED,
HOWEVER, that anything in such clauses to the contrary
notwithstanding, Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to
Borrower, to the extent, but only to the extent, of any direct, as
opposed to
consequential or exemplary, damages suffered by Borrower which
Borrower proves
were caused by the L/C Issuer's willful misconduct or gross
negligence or the
L/C Issuer's willful failure to pay under any Letter of Credit
after the
presentation to it by the beneficiary of a sight draft and
certificate(s)
strictly complying with the terms and conditions of a Letter of
Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer
may accept
documents that appear on their face to be in order, without
responsibility for
further investigation, regardless of any notice or information to
the contrary,
and the L/C Issuer shall not be responsible for the validity or
sufficiency of
any instrument transferring or assigning or purporting to transfer
or assign a
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in
whole or in part, which may prove to be invalid or ineffective for
any reason.
(g)
CASH COLLATERAL. Upon the request of Agent, (i) if the L/C Issuer
has
honored any full or partial drawing request under any Letter of
Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C
Expiration
Date, any L/C Obligation for any reason remains outstanding,
Borrower shall , in
each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C
Obligations . Sections 2.05 and 8.02(c) set forth certain
additional
requirements to deliver Cash Collateral hereunder. For purposes
hereof, "CASH
COLLATERALIZE" means to pledge and deposit with or deliver to
Agent, for the
benefit of the L/C Issuer and the Lenders, as collateral for the
L/C
Obligations, cash or deposit account balances pursuant to
documentation in form
and substance satisfactory to Agent and the L/C Issuer (which
documents are
hereby consented to by Lenders). Derivatives of such term have
corresponding
meanings. Borrower hereby grants to Agent, for the benefit of the
L/C Issuer and
Lenders, a security interest in all such cash, deposit accounts and
all balances
therein and all proceeds of the foregoing. Cash collateral shall be
maintained
in blocked, non-interest bearing deposit accounts at Bank of
America.
(h)
APPLICABILITY OF ISP AND UCP. Unless otherwise expressly agreed by
the
L/C Issuer and Borrower when a Letter of Credit is issued
(including any such
agreement applicable to an Existing Letter of Credit), (i) the
rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of
the Uniform
Customs and Practice for Documentary Credits, as most recently
published by the
International Chamber of Commerce (the "ICC") at the time of
issuance shall
apply to each commercial Letter of Credit.
(i)
L/C FEES. Borrower shall pay to Agent for the account of each
Lender in
accordance with its Applicable Percentage a L/C fee (the "L/C FEE")
for each
Letter of Credit equal to the Applicable Rate TIMES the daily
amount available
to be drawn under such Letter of Credit. For purposes of computing
the daily
amount available to be drawn under any Letter of Credit, the amount
of such
Letter of Credit shall be determined in accordance with SECTION
1.06. L/C Fees
shall be (i) computed on a quarterly
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basis in arrears and (ii) due and payable on the first Business Day
after the
end of each March, June, September and December, commencing with
the first such
date to occur after the issuance of such Letter of Credit, on the
L/C Expiration
Date and thereafter on demand. If there is any change in the
Applicable Rate
during any quarter, the daily amount available to be drawn under
each Letter of
Credit shall be computed and multiplied by the Applicable Rate
separately for
each period during such quarter that such Applicable Rate was in
effect.
Notwithstanding anything to the contrary contained herein, upon the
request of
the Required Lenders, while any Event of Default exists, all L/C
Fees shall
accrue at the Default Rate.
(j)
FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO
L/C
ISSUER. Borrower shall pay directly to the L/C Issuer for its own
account a
fronting fee with respect to each Letter of Credit, at the rate per
annum
specified in the Agent Fee Letter, computed on the daily amount
available to be
drawn under such Letter of Credit and on a quarterly basis in
arrears. Such
fronting fee shall be due and payable on the tenth Business Day
after the end of
each March, June, September and December, in respect of the most
recently-ended
quarterly period (or portion thereof, in the case of the first
payment),
commencing with the first such date to occur after the issuance of
such Letter
of Credit, on the L/C Expiration Date and thereafter on demand. For
purposes of
computing the daily amount available to be drawn under any Letter
of Credit, the
amount of such Letter of Credit shall be determined in accordance
with SECTION
1.06. In addition, Borrower shall pay directly to the L/C Issuer
for its own
account the customary issuance, presentation, amendment and other
processing
fees, and other standard costs and charges, of the L/C Issuer
relating to
letters of credit as from time to time in effect. Such individual
customary fees
and standard costs and charges are due and payable on demand and
are
nonrefundable.
(k)
CONFLICT WITH ISSUER DOCUMENTS. In the event of any conflict
between the
terms hereof and the terms of any Issuer Documents, the terms
hereof shall
control.
(l)
LETTERS OF CREDIT ISSUED FOR SUBSIDIARIES. Notwithstanding that a
Letter
of Credit issued or outstanding hereunder is in support of any
obligations of,
or is for the account of, a Subsidiary, Borrower shall be obligated
to reimburse
the L/C Issuer hereunder for any and all drawings under such Letter
of Credit.
Borrower hereby acknowledges that the issuance of Letters of Credit
for the
account of Subsidiaries inures to the benefit of Borrower, and that
Borrower's
business derives substantial benefits from the businesses of such
Subsidiaries.
2.04 [INTENTIONALLY OMITTED]
2.05 PREPAYMENTS. (a) Borrower may, upon notice to Agent, at any
time or
from time to time voluntarily prepay Committed Loans in whole or in
part without
premium or penalty; PROVIDED that (i) such notice must be received
by Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of
Eurodollar Rate Loans and (B) on the date of prepayment of Base
Rate Committed
Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a
principal
amount of $100,000 or a whole multiple of $1,000 in excess thereof;
and (iii)
any prepayment of Base Rate Committed Loans shall be in a principal
amount of
$100,000 or a whole multiple of $1,000 in excess thereof or, in
each case, if
less, the entire principal amount thereof then outstanding. Each
such notice
shall specify the date and amount of such prepayment and the
Type(s) of
Committed Loans to be prepaid. Agent will promptly notify each
Lender of its
receipt of each such notice, and of the amount of such Lender's
Applicable
Percentage of such prepayment. If such notice is given by Borrower,
Borrower
shall make such prepayment and the payment amount specified in such
notice shall
be due and payable on the date specified therein. Any prepayment of
a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the
amount prepaid,
together with any additional amounts required pursuant to SECTION
3.05. Each
such prepayment shall be applied to the Committed Loans of Lenders
in accordance
with their respective Applicable Percentages.
(b) If for any reason the Total Outstandings at any time exceed the
Aggregate
Commitments then in effect, Borrower shall immediately prepay Loans
and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to
such excess;
PROVIDED, HOWEVER, that Borrower shall not be required to Cash
Collateralize the
L/C Obligations pursuant to this SECTION 2.05(b) unless after the
prepayment in
full of the Loans the Total Outstandings exceed the Aggregate
Commitments then
in effect.
2.06 TERMINATION OR REDUCTION OF COMMITMENTS. Borrower may, upon
notice
to Agent, terminate the Aggregate Commitments, or from time to time
permanently
reduce the Aggregate Commitments; PROVIDED that (i) any such notice
shall be
received by Agent not later than 11:00 a.m. five Business Days
prior to the date
of termination or reduction, (ii) any such partial reduction shall
be in an
aggregate amount of $100,000 or any whole multiple of $100,000 in
excess
thereof, (iii) Borrower shall not terminate or reduce the Aggregate
Commitments
if, after giving effect thereto and to any concurrent prepayments
hereunder, the
Total Outstandings would exceed the Aggregate Commitments, and (iv)
if, after
giving effect to any reduction of the Aggregate Commitments, the
L/C Sublimit
exceeds the amount of the Aggregate Commitments, such Sublimit
shall be
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automatically reduced by the amount of such excess. Agent will
promptly notify
the Lenders of any such notice of termination or reduction of the
Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be
applied to the
Commitment of each Lender according to its Applicable Percentage.
All fees
accrued until the effective date of any termination of the
Aggregate Commitments
shall be paid on the effective date of such termination.
2.07 REPAYMENT OF LOANS. (a) Borrower shall repay to Lenders on
the
Maturity Date the aggregate principal amount of Committed Loans
outstanding on
such date.
2.08 INTEREST. (a) Subject to the provisions of subsection (b)
below,
(i) each Eurodollar Rate Loan shall bear interest on the
outstanding principal
amount thereof for each Interest Period at a rate per annum equal
to the
Eurodollar Rate for such Interest Period PLUS the Applicable Rate;
and (ii) each
Base Rate Committed Loan shall bear interest on the outstanding
principal amount
thereof from the applicable borrowing date at a rate per annum
equal to the Base
Rate PLUS the Applicable Rate.
(b) (i) If any amount of principal of any Loan is not paid when due
(without
regard to any applicable grace periods), whether at stated
maturity, by
acceleration or otherwise, such amount shall thereafter bear
interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to
the fullest extent permitted by applicable Laws.
(ii)
If any amount (other than principal of any Loan) payable by
Borrower
under any Loan Document is not paid when due (without regard to any
applicable
grace periods), whether at stated maturity, by acceleration or
otherwise, then
upon the request of the Required Lenders, such amount shall
thereafter bear
interest at a fluctuating interest rate per annum at all times
equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default
exists, Borrower shall pay interest on the principal amount of all
outstanding
Obligations hereunder at a fluctuating interest rate per annum at
all times
equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iv)
Accrued and unpaid interest on past due amounts (including interest
on
past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest
Payment Date applicable thereto and at such other times as may be
specified
herein. Interest hereunder shall be due and payable in accordance
with the terms
hereof before and after judgment, and before and after the
commencement of any
proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i)
and
(j) of SECTION 2.03:
(a)
[Intentionally Omitted]
(b)
AGENT'S FEES. Borrower shall pay to Agent for Agent's own account,
fees
in the amounts and at the times specified in the letter agreement,
dated October
3, 2005 (the "AGENT FEE LETTER"), between Borrower and Agent. Such
fees shall be
fully earned when paid and shall be nonrefundable for any reason
whatsoever.
(c)
LENDERS' UPFRONT FEE. On the Closing Date, Borrower shall pay to
Agent,
for the account of each Lender in accordance with their respective
Applicable
Percentages, an upfront fee in an amount of 1/4 of 1% of the
Commitment of such
Lender, which shall be paid by Agent to each Lender within two
Business Days of
its receipt. Such upfront fees are for the credit facilities
committed by
Lenders under this Agreement and are fully earned on the date paid.
The upfront
fee paid to each Lender is solely for its own account and is
nonrefundable for
any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest
for
Base Rate Loans when the Base Rate is determined by Bank of
America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as
the case may
be, and actual days elapsed. All other computations of fees and
interest shall
be made on the basis of a 360-day year and actual days elapsed
(which results in
more fees or interest, as applicable, being paid than if computed
on the basis
of a 365-day year). Interest shall accrue on each Loan for the day
on which the
Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the
day on which the Loan or such portion is paid, PROVIDED that any
Loan that is
repaid on the same day on which it is made shall, subject to
SECTION 2.12(a),
bear interest for one day. Each determination by Agent of an
interest rate or
fee hereunder shall be conclusive and binding for all purposes,
absent manifest
error.
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2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each
Lender
shall be evidenced by one or more accounts or records maintained by
such Lender
and by Agent in the ordinary course of business. The accounts or
records
maintained by Agent and each Lender shall be conclusive absent
manifest error of
the amount of the Credit Extensions made by Lenders to Borrower and
the interest
and payments thereon. Any failure to so record or any error in
doing so shall
not, however, limit or otherwise affect the obligation of Borrower
hereunder to
pay any amount owing with respect to the Obligations. In the event
of any
conflict between the accounts and records maintained by any Lender
and the
accounts and records of Agent in respect of such matters, the
accounts and
records of Agent shall control in the absence of manifest error.
Upon the
request of any Lender made through Agent, Borrower shall execute
and deliver to
such Lender (through Agent) a Note, which shall evidence such
Lender's Loans in
addition to such accounts or records. Each Lender may attach
schedules to its
Note and endorse thereon the date, Type (if applicable), amount and
maturity of
its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each
Lender and Agent shall maintain in accordance with its usual
practice accounts
or records evidencing the purchases and sales by such Lender of
participations
in Letters of Credit. In the event of any conflict between the
accounts and
records maintained by Agent and the accounts and records of any
Lender in
respect of such matters, the accounts and records of Agent shall
control in the
absence of manifest error.
2.12 PAYMENTS GENERALLY; AGENT'S CLAWBACK. (a)(i) GENERAL. All
payments
to be made by Borrower shall be made without condition or deduction
for any
counterclaim, defense, recoupment or setoff. Except as otherwise
expressly
provided herein, all payments by Borrower hereunder shall be made
to Agent, for
the account of the respective Lenders to which such payment is
owed, at the
Administrative Agent's Office in Dollars and in immediately
available funds not
later than 12:00 noon on the date specified herein. Agent will
promptly
distribute to each Lender its Applicable Percentage(or other
applicable share as
provided herein) of such payment in like funds as received by wire
transfer to
such Lender's Lending Office. All payments received by Agent after
12:00 noon
shall be deemed received on the next succeeding Business Day and
any applicable
interest or fee shall continue to accrue. If any payment to be made
by Borrower
shall come due on a day other than a Business Day, payment shall be
made on the
next following Business Day, and such extension of time shall be
reflected in
computing interest or fees, as the case may be.
(ii) On each date when the payment of any principal, interest or
fees are due
hereunder or under any Note, Borrower agrees to maintain on deposit
in an
ordinary checking account maintained by Borrower with Agent (as
such account
shall be designated by Borrower in a written notice to Agent from
time to time,
the "BORROWER ACCOUNT") an amount sufficient to pay such principal,
interest or
fees in full on such date. Borrower hereby authorizes Agent (A) to
deduct
automatically all principal, interest or fees when due hereunder or
under any
Note from the Borrower Account, and (B) if and to the extent any
payment of
principal, interest or fees u
