TABLE OF CONTENTS

 

Section		Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS		1
1.01	Defined Terms	1
1.02	Other Interpretive Provisions	30
1.03	Accounting Terms	31
1.04	Rounding	31
1.05	Times of Day	32
1.06	Letter of Credit Amounts	32
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS		32
2.01	The Loans	32
2.02	Borrowings, Conversions and Continuations of Loans	33
2.03	Letters of Credit	34
2.04	Swing Line Loans	43
2.05	Prepayments	46
2.06	Termination or Reduction of the Revolving Commitments; Termination of the Term B Loan	49
2.07	Repayment of Loans	50
2.08	Interest	50
2.09	Fees	51
2.10	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	51
2.11	Evidence of Debt	52
2.12	Payments Generally; Administrative Agent’s Clawback	53
2.13	Sharing of Payments by Lenders	55
2.14	Increase in Aggregate Commitments; Term B Loan	55
2.15	Currency of Account	58
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY		58
3.01	Taxes	58
3.02	Illegality	62
3.03	Inability to Determine Rates	62
3.04	Increased Costs	62
3.05	Compensation for Losses	64
3.06	Mitigation Obligations; Replacement of Lenders	65
3.07	Survival	65
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS		65
4.01	Conditions of Initial Credit Extension	65
4.02	Conditions to all Credit Extensions	68
ARTICLE V. REPRESENTATIONS AND WARRANTIES		69
5.01	Corporate Authority	69
5.02	Governmental Approvals; Other Approvals	70
5.03	Title to Properties; Leases	70
5.04	Use of Proceeds	70
5.05	Financial Statements; Solvency	70
5.06	No Material Changes, Etc.	70
5.07	Permits, Franchises, Patents, Copyrights, Etc.	71

 

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5.08	Litigation	71
5.09	No Materially Adverse Contracts, Etc.	71
5.10	Compliance With Other Instruments, Applicable Laws, Etc.	71
5.11	Tax Status	71
5.12	Employee Benefit Plans	72
5.13	Subsidiaries; Equity Interests; Capitalization	73
5.14	Margin Regulations; Holding Company and Investment Company Act	74
5.15	Absence of Financing Statements, Etc.	74
5.16	Environmental Compliance	74
5.17	Perfection of Security Interests	74
5.18	Certain Transactions	75
5.19	True Copies of Charter and Other Documents	75
5.20	Disclosure	75
5.21	Guarantees of Excluded Subsidiaries	75
5.22	Obligations Constitute Senior Debt	75
5.23	Labor Matters	75
ARTICLE VI. AFFIRMATIVE COVENANTS		76
6.01	Punctual Payment	76
6.02	Maintenance of Office	76
6.03	Records and Accounts	76
6.04	Financial Statements, Certificates and Information	76
6.05	Legal Existence and Conduct of Business	80
6.06	Maintenance of Properties	80
6.07	Maintenance of Insurance	80
6.08	Taxes	80
6.09	Inspection of Properties, Books and Contracts	81
6.10	Compliance with Applicable Laws, Contracts, Licenses and Permits; Maintenance of Material Licenses and Permits	81
6.11	Environmental Indemnification	82
6.12	Further Assurances	82
6.13	Notice of Potential Claims or Litigation	82
6.14	Notice of Certain Events Concerning Insurance, Environmental Claims and Accounting Practices	82
6.15	Notice of Default or Material Adverse Effect	84
6.16	Closure and Post Closure Liabilities	84
6.17	Subsidiaries	84
6.18	Interest Rate Protection	84
6.19	Additional Borrowers	84
ARTICLE VII. NEGATIVE COVENANTS		85
7.01	Liens	85
7.02	Investments	86
7.03	Indebtedness	87
7.04	Mergers; Consolidation; Sales	89
7.05		92
7.06	Restricted Payments	92
7.07	Change in Nature of Business	92

 

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7.08	Transactions with Affiliates	93
7.09	Burdensome Agreements; Negative Pledges	93
7.10	Use of Proceeds	93
7.11	Financial Covenants	93
7.12	Sale and Leaseback	95
7.13	No Other Senior Debt	96
7.14	Actions Otherwise Prohibited By Subordinated Debt Or Second Lien Notes	96
7.15	Employee Benefit Plans	96
7.16	Prepayments of Certain Obligations; Modifications of Subordinated Debt	97
7.17	Upstream Limitations	97
7.18	Modifications of Second Lien Note Documents	97
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES		98
8.01	Events of Default	98
8.02	Remedies Upon Event of Default	101
8.03	Application of Funds	101
ARTICLE IX. ADMINISTRATIVE AGENT		102
9.01	Appointment and Authority	102
9.02	Rights as a Lender	103
9.03	Exculpatory Provisions	103
9.04	Reliance by Administrative Agent	105
9.05	Delegation of Duties	105
9.06	Resignation of Administrative Agent	105
9.07	Non-Reliance on Administrative Agent and Other Lenders	107
9.08	No Other Duties, Etc.	107
9.09	Administrative Agent May File Proofs of Claim	107
9.10	Collateral Matters	108
9.11	Secured Cash Management Agreements and Secured Hedge Agreements	108
ARTICLE X. MISCELLANEOUS		109
10.01	Amendments, Etc.	109
10.02	Notices; Effectiveness; Electronic Communication	110
10.03	No Waiver; Cumulative Remedies	113
10.04	Expenses; Indemnity; Damage Waiver	113
10.05	Payments Set Aside	116
10.06	Successors and Assigns	116
10.07	Treatment of Certain Information; Confidentiality	119
10.08	Right of Setoff	120
10.09	Interest Rate Limitation	121
10.10	Counterparts; Integration; Effectiveness	121
10.11	Survival of Representations and Warranties	121
10.12	Concerning Joint and Several Liability of the Borrowers	122
10.13	Severability	125
10.14	Replacement of Lenders	125
10.15	Collateral Security	126
10.16	Existing Credit Agreement Superseded	127
10.17	Governing Law; Jurisdiction; Etc.	127
10.18	Waiver of Jury Trial	128

 

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10.19	No Advisory or Fiduciary Responsibility	128
10.20	USA PATRIOT Act Notice	129
10.21	Designation of Parent as the Agent for the Borrowers	129

 

SCHEDULES
1	Borrowers
2.01	Commitments and Applicable Percentages
5.07	Intellectual Property
5.08	Litigation
5.13(a)	Subsidiaries; Equity Interests; Capitalization
5.13(c)	Options
5.16	Environmental Compliance
5.18	Certain Transactions
5.23	Labor Matters
7.01	Existing Liens
7.02	Existing Investments
7.03	Existing Indebtedness
10.02	Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
	Form of
A-1	Form of Committed Loan Notice
A-2	Form of Term B Loan Notice
B	Form of Swing Line Loan Notice
C-1	Form of Term B Note
C-2	Form of Revolving Note
C-3	Form of Swing Line Note
D	Form of Compliance Certificate
E-1	Form of Assignment and Assumption
E-2	Form of Administrative Questionnaire
F	Form of Subordination Agreement
G	Form of Joinder Agreement
H	Form of Instrument of Accession
I	Existing Letters of Credit
J	Form of Perfection Certificate

 

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SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT

 

This SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “ Agreement ”) is entered into as of July 9, 2009, by and among CASELLA WASTE SYSTEMS INC., a Delaware corporation (the “ Parent ”), its Subsidiaries (other than the Excluded Subsidiaries and the Non-Borrower Subsidiaries) listed on Schedule 1 hereto (the Parent and such Subsidiaries herein collectively referred to as the “ Borrowers ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

WHEREAS, certain of the Borrowers, the Administrative Agent and certain of the Lenders are parties to that certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as of April 28, 2005 (as amended, the “ Existing Credit Agreement ”), pursuant to which the lenders thereunder have made loans and other extensions of credit to the Borrowers;

 

WHEREAS, the Borrowers have requested, among other things, that the Lenders amend and restate the Existing Credit Agreement, and the Lenders are willing to do so on the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree that on the Closing Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, the terms of which are 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:

 

“ Acceding Lender ” has the meaning set forth in Section 2.14(c)  hereof.

 

“ Accountants ”  has the meaning set forth in Section 5.05(a)  hereof.

 

“ Acquired Business ” means a business acquired by any Borrower, whether through asset or stock purchases, merger, consolidation or otherwise, during the period reported in the most recent financial statements delivered to the Lenders pursuant to Section 6.04 hereof.

 

“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrowers and the Lenders.

 

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“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

 

“ Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

“ Agents ” means, collectively, the Administrative Agent, the Joint Arrangers and Bank of America, in its capacity as sole book manager.

 

“ Aggregate Commitments ” means the Revolving Commitments of the Revolving Lenders, as in effect from time to time, which amount shall initially equal $177,500,000, as such amount may be reduced or increased pursuant to the terms hereof.

 

“ Agreement ” means this Second Amended and Restated Revolving Credit and Term Loan Agreement.

 

“ Applicable 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 administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law, and with respect to each Borrower or Non-Borrower Subsidiary, such Applicable Laws as are applicable to such Borrower and Non-Borrower Subsidiary.

 

“ Applicable Control Percentage ” means (i) as of the Closing Date, 35%, (ii) in the event that the Senior Subordinated Debt outstanding on the Closing Date is replaced or refinanced, such higher (or lower, if applicable) percentage, but not to exceed 49% in any event or circumstance, as is the percentage of voting power that gives rise to a “change of control” under any such replacement or refinanced Senior Subordinated Debt or any other Indebtedness of the Parent or the other Borrowers (whether incurred as a replacement or refinancing of the Senior Subordinated Debt or otherwise, and whenever incurred) and (iii) in the event that the Senior Subordinated Debt outstanding on the Closing Date is retired but is not replaced or refinanced, then until any such replacement or refinancing (or other) Indebtedness is incurred (in which event, clause (ii) above shall apply), 49% (it being the intention of the parties that in no circumstance shall the Applicable Control Percentage be higher than the percentage of voting power that gives rise to a “change of control” under any other Indebtedness of the Parent or the other Borrowers).

 

“ Applicable Percentage ” means the Revolving Percentage or the Term B Loan Percentage, as applicable.

 

“ Applicable Rate ” means (a) in respect of the Term B Loan, (i) 4.00% per annum for Base Rate Loans and (ii) 5.00% per annum for Eurodollar Rate Loans, (b) in respect of the Committed Loans, (i) for the first two complete calendar quarters following the Closing Date, (x) 3.50% per annum for Base Rate Loans and (y) 4.50% per annum for Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per annum set forth in the table

 

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below determined by reference to the Ratio of Consolidated Total Funded Debt to Consolidated EBITDA as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.04(c) , and (c) in respect of the Commitment Fee, (i) for the first two complete quarters following the Closing Date, 0.750% per annum and (ii) thereafter, the applicable percentage per annum set forth in the table below determined by reference to the Ratio of Consolidated Total Funded Debt to Consolidated EBITDA as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.04(c) :

 

Applicable Rate

 

Pricing Level		Ratio of Consolidated Total Funded Debt to Consolidated EBITDA		Eurodollar Rate Loans (and Letters of Credit)		Base Rate Loans		Commitment Fee
I		<3.00:1.00		3.25	%	2.25	%	0.375	%
II		> 3.00:1.00 but <3.50:1.00		3.50	%	2.50	%	0.500	%
III		> 3.50:1.00 but <4.00:1.00		3.75	%	2.75	%	0.500	%
IV		> 4.00:1.00 but <4.50:1.00		4.00	%	3.00	%	0.500	%
V		> 4.50:1.00 but <5.00:1.00		4.25	%	3.25	%	0.750	%
VI		> 5.00:1.00 but <5.50:1.00		4.50	%	3.50	%	0.750	%
VII		> 5.50:1.00		4.75	%	3.75	%	0.750	%

 

Any increase or decrease in the Applicable Rate resulting from a change in the ratio of Consolidated Total Funded Debt to Consolidated EBITDA shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.04(c) ; provided, however, that if a Compliance Certificate is not delivered within ten (10) days after the time periods specified in such Section 6.04(c) , then Pricing Level VII (as set forth in the table above for Committed Loans and the Commitment Fee) shall apply as of the first Business Day thereafter, subject to prospective adjustment upon actual receipt of such Compliance Certificate.

 

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) .

 

“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

 

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“ 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 the Administrative Agent, in substantially the form of Exhibit E-1 or any other form approved by the Administrative Agent.

 

“ Attributable Indebtedness ” means, on any date, (a) in respect of any Capitalized Leases 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 obligations under Synthetic Leases, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Leases.

 

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended April 30, 2009, and the related consolidated statements of operations and cash flows for such fiscal year, including the notes thereto.

 

“ Availability Period ” means, with respect to the Committed Loans, the period from and including the Closing Date to the earliest of (a) the Maturity Date for the Committed Loans, (b) the date of termination of the Aggregate Commitments in full pursuant to Section 2.06 , and (c) the date of termination of the Revolving Commitment of each Revolving Lender to make Committed Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .

 

“ Balance Sheet Date ” means April 30, 2009.

 

“ 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%, (b) the BBA Daily Floating Rate LIBOR, as determined by the Administrative Agent for such day, plus 1.00%, and (c) 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.

 

“ BBA Daily Floating Rate LIBOR ” means a fluctuating rate of interest which can change on each banking day.  The rate will be adjusted on each banking day to equal the British Bankers Association LIBOR Rate (“ BBA Daily LIBOR ”) for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date.  The Administrative Agent will use the BBA Daily LIBOR Rate as published by Reuters (or other commercially available source providing quotations of BBA Daily LIBOR as selected by the Administrative Agent from time to time) as determined at approximately 11:00 a.m. London time two (2) London Banking Days

 

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prior to the date in question, as adjusted from time to time in the Administrative Agent’s sole discretion for reserve requirements, deposit insurance assessment rates and other regulatory costs.  In the event that the Board of Governors of the Federal Reserve System shall impose a LIBOR Reserve Percentage with respect to LIBOR deposits of the Administrative Agent, then for any period during which such LIBOR Reserve Percentage shall apply, LIBOR shall be equal to the amount determined above divided by an amount equal to 1 minus the LIBOR Reserve Percentage.  If such rate is not available at such time for any reason, then the rate will be determined by such alternate method as reasonably selected by the Administrative Agent.  For the purposes of this definition, “London Banking Day” means a day on which banks in London, England are open for business and dealing in offshore dollars.

 

“ Benefit Amount” has the meaning specified in Section 10.12(f)  hereof.

 

“ Borrowers ” has the meaning specified in the introductory paragraph hereto.

 

“ Borrowers’ Materials ” has the meaning specified in Section 6.04 .

 

“ Borrowing ” means a Committed Borrowing, a Swing Line Borrowing or the Term B Loan Borrowing, as the context may require.

 

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Applicable Laws of, or are in fact closed in, the state where the 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 Assets ” means fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and goodwill); provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with GAAP.

 

“ Capital Expenditures ” means amounts paid or Indebtedness incurred by any Person in connection with (a) the purchase or lease by such Person of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with GAAP or (b) the lease of any assets by such Person as lessee under any Synthetic Lease to the extent that such assets would have been Capital Assets had the Synthetic Lease been treated for accounting purposes as a Capitalized Lease; provided that solely for purposes of this definition of Capital Expenditures, Capital Assets shall not include (a) landfill operating and management leases (even if required to be capitalized under GAAP), (b) any item obtained through a Permitted Acquisition, (c) increases to Capital Assets as a result of the application of FAS 143 to asset retirement obligations, (d) assets acquired under “finance lease obligations” (as set forth in the financial statements delivered by the Borrowers pursuant to Section 6.04 for the applicable period) and (e) capitalized interest that has been excluded in connection with construction-in-progress.

 

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“ Capitalized Leases ” means leases under which any Borrower is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

 

“ Cash Collateral ” has the meaning specified in Section 2.03(g)  hereof.

 

“ Cash Collateralize ” has the meaning specified in Section 2.03(g)  hereof.

 

“ Cash Equivalents ” means:

 

(a)                                   a marketable obligation, maturing within one year after issuance thereof, issued, guaranteed or insured by the government of the United States or an instrumentality or agency thereof;

 

(b)                                  demand deposits, certificates of deposit, eurodollar time deposits, banker’s acceptances, in each case, maturing within one year after issuance thereof, and overnight bank deposits, in each case, issued by any Lender, or a U.S. national or state bank or trust company or a European, Canadian or Japanese bank having capital, surplus and undivided profits of at least $500,000,000 and whose long-term unsecured debt has a rating of “A” or better by S&P or A2 or better by Moody’s or the equivalent rating by any other nationally recognized rating agency (provided that the aggregate face amount of all Investments in certificates of deposit or bankers’ acceptances issued by the principal offices of or branches of such non-Lender European or Japanese banks located outside the U.S. shall not at any time exceed 33 1/3% of all Investments described in this definition);

 

(c)                                   open market commercial paper, maturing within 270 days after issuance thereof, which has a rating of A-2 or better by S&P or P-2 or better by Moody’s, or the equivalent rating by any other nationally recognized rating agency;

 

(d)                                  repurchase agreements and reverse repurchase agreements with a term not in excess of one year with any financial institution which has been elected a primary government securities dealer by the Federal Reserve Board or whose securities are rated AA- or better by S&P or Aa3 or better by Moody’s or the equivalent rating by any other nationally recognized rating agency relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America; and

 

(e)                                   shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least Aaa or the equivalent thereof by Moody’s or any other mutual fund at least 95% of the assets of which consist of the type specified in clauses (a) through (d) above.

 

“ Cash Management Agreement ” means any agreement with a Cash Management Bank to provide cash management services or other bank products, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

 

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“ Cash Management Bank ” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

 

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

“ Change of Control ” means an event or series of events by which:

 

(a)                                   any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, 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, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of securities representing the Applicable Control Percentage or more of the voting power of the equity securities of the Parent entitled to vote (without regard to the occurrence of any contingency with respect to such vote or voting power) for members of the board of directors or equivalent governing body of the Parent;

 

(b)                                  during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

 

(c)                                   any Person or two or more Persons acting in concert shall have entered into a contract or agreement with the Parent (or Affiliate of the Parent) that, upon consummation thereof, will result in its or their acquisition of 49% or more of the voting power of the equity securities of the Parent entitled to vote (without regard to the occurrence of any contingency with respect to such vote or voting power) for members of the board of directors or equivalent governing body of the Parent (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any

 

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option right) if such contract or agreement does not provide for the repayment in full in cash of the Obligations simultaneously with the consummation of the transactions contemplated by such contract or agreement; or

 

(d)                                  a “change of control” or any comparable term under, and as defined in, any Subordinated Debt, the Senior Subordinated Note Documents or the Second Lien Note Documents (or any replacements or refinancing of any thereof) shall have occurred.

 

“ 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, as amended.

 

“ Collateral ” means all of the property, rights and interests of the Borrowers that are or become subject to the security interests and mortgages created by the Security Documents or in which the Borrowers are required, pursuant to the terms of the Loan Documents, to grant a security interest or mortgage in favor of the Administrative Agent or the Lenders.

 

“ Commitment Fee ” has the meaning specified in Section 2.09(a)  hereof.

 

“ 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 the Revolving Lenders pursuant to Section 2.01(b)  or Section 2.14 .

 

“ Committed Loan ” has the meaning specified in Section 2.01(b) .

 

“ 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 Committed Loans that are Eurodollar Rate Loans, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .

 

“ Commodity Derivatives Obligations ” has the meaning specified in Section 7.03(f)  hereof.

 

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .

 

“ Conforming Amendment ” has the meaning set forth in Section 2.14(e)  hereof.

 

“ Consolidated Adjusted Net Income ” means, for any period, Consolidated Net Income (or Loss) plus , to the extent deducted and without duplication, (a) for the fiscal year ended April 30, 2009, as reflected in the Audited Financial Statements, (i) non-cash goodwill impairment charges in an aggregate amount not to exceed $55,300,000, (ii) severance and restructuring costs in an aggregate amount not to exceed $1,370,000 and (iii) environmental charges relating to the Borrowers’ Potsdam facility in an aggregate amount not to exceed $4,400,000; (b) the non-recurring, non-cash write-off of debt issuance expenses related to the refinancing of Indebtedness under the Existing Credit Agreement, such write-off not to exceed $878,000, (c) transaction costs for acquisitions and development projects which are expensed rather than capitalized (as a result of applying FASB Rule 141 treatment to such transaction costs); (d) non-cash losses in

 

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connection with asset sales, asset impairment charges and abandonment of assets in an aggregate amount not to exceed $25,000,000 from and after the Closing Date; and (e) non-cash stock-based compensation expenses under the Borrowers’ employee share-based compensation plans; and (f) all other non-cash charges reasonably acceptable to the Administrative Agent; minus (g) non-cash extraordinary gains on the sale of assets including non-cash gains on the sale of assets outside the ordinary course of business to the extent included in Consolidated Net Income (or Loss) , and minus (h) non-cash extraordinary gains resulting from the application of FAS 133 to the extent included in Consolidated Net Income (or Loss).

 

“ Consolidated EBITDA ” means, for any period, Consolidated Adjusted Net Income plus , to the extent that such charge was deducted in determining Consolidated Adjusted Net Income in the relevant period and without duplication, (a) interest expense (including accretion expense, original issue discount and costs in connection with the early extinguishment of debt) for such period; (b) income taxes for such period; (c) amortization expense for such period; and (d) depreciation expense and depletion expense for such period.  For all purposes other than calculating the financial covenant set forth in Section 7.11(a)  hereof, the Borrowers may include in Consolidated EBITDA the EBITDA for the prior twelve (12) months of companies acquired by the Borrowers during the respective reporting period (without duplication with respect to the adjustments set forth above) only if (A) the financial statements of such Acquired Business or new Subsidiary have been audited, for the period sought to be included, by an independent accounting firm satisfactory to the Administrative Agent, or (B) the Administrative Agent consents to such inclusion after being furnished with other acceptable financial statements. Furthermore, the EBITDA may be further adjusted (other than when calculating the financial covenant set forth in Section 7.11(a)  hereof) to add-back non-recurring private company expenses which are discontinued upon such acquisition (such as owner’s compensation), as approved by the Administrative Agent.  Simultaneously with the delivery of the financial statements referred to in (A) and (B) above, a Responsible Officer of the Borrowers shall deliver to the Administrative Agent a Compliance Certificate and appropriate documentation certifying the historical operating results, adjustments and balance sheet of the Acquired Business.

 

“ Consolidated Excess Operating Cash Flow ” means, for any fiscal year with respect to the Parent and its Subsidiaries, an amount equal to the “net cash provided by operating activities” (as set forth in the financial statements delivered by the Borrowers pursuant to Section 6.04(a)  for such fiscal year) less $5,000,000, minus (a) Capital Expenditures made during such fiscal year, minus (b) the cash purchase price paid in such fiscal year in connection with Permitted Acquisitions made during such fiscal year, minus (c) cash payments made under “landfill operating lease contracts” and under “finance leases” (as set forth in the financial statements delivered by the Borrowers pursuant to Section 6.04(a)  for such fiscal year) in such fiscal year, minus (d) regularly scheduled principal amortization payments made in cash on any of the Borrowers’ Consolidated Total Funded Debt, minus (e) mandatory repayments (whether scheduled or otherwise) of principal of the Term B Loan or to the extent accompanied by a permanent reduction in the Aggregate Commitments, the Committed Loans, minus (f) any voluntary prepayments of the principal of the Term B Loan, or to the extent accompanied by a permanent reduction in the Aggregate Commitments, the Committed Loans.

 

“ Consolidated Net Income (or Loss) ” means the consolidated net income (or loss) of the Parent and its Subsidiaries after deduction of all expenses, taxes, and other proper charges

 

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determined in accordance with GAAP, less (or plus, in the case of losses), to the extent included therein, (i) gains (or loss) from extraordinary items, (ii) any income (or loss) from discontinued operations, and (iii) income (or loss) attributable to any Investment in any Excluded Subsidiaries; provided, however, that consolidated net income shall not be reduced pursuant to this clause (iii) by actual cash dividends or distributions received from any Excluded Subsidiary so long as the amount of such cash dividends and distributions have not been subsequently reinvested in an Excluded Subsidiary during the applicable period.

 

“ Consolidated Senior Funded Debt ” means, at any time of determination, (a) Consolidated Total Funded Debt minus (b) Subordinated Debt outstanding as of such date plus (c) any and all scheduled principal payments in respect of Seller Subordinated Debt that will become due and payable during the next successive period of four (4) fiscal quarters.

 

“ Consolidated Total Assets ” means the sum of all assets (“ consolidated balance sheet assets ”) of the Parent and its Subsidiaries determined on a consolidated basis in accordance with GAAP, exclusive, without duplication, of Equity Interests in and the assets of the Excluded Subsidiaries.

 

“ Consolidated Total Funded Debt ” means, at any time of determination with respect to the Borrowers, collectively, without duplication, whether classified as Indebtedness or otherwise on the consolidated balance sheet of the Borrowers, (a) the aggregate amount of Indebtedness for (i) borrowed money or credit obtained or other similar monetary obligations, direct or indirect, (including (x) the face amount of the Second Lien Notes and the Senior Subordinated Notes, (y) obligations under “finance leases” and (z) any unpaid reimbursement obligations with respect to letters of credit; but excluding any contingent obligations with respect to letters of credit outstanding), (ii) all obligations evidenced by notes, bonds, debentures or other similar debt instruments (other than Performance Bonds and surety and other bonds contemplated by Section 7.03(l) ), (iii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and holdbacks), (iv) all Attributable Indebtedness, including, without limitation, Indebtedness with respect to capitalization of landfill operating contract obligations, to the extent capitalized under GAAP (but excluding landfill operating leases to the extent they are characterized as operating leases and not capitalized), plus (b) Indebtedness of the type referred to in clause (a) of another Person guaranteed by the any of the Borrowers.

 

“ Consolidated Total Interest Expense ” means, for any period, the aggregate amount of interest expense required to be paid or accrued by the Borrowers during such period on all Indebtedness of the Borrowers outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of any Capitalized Lease or any Synthetic Lease, and including commitment fees, letter of credit fees, agency fees, balance deficiency fees and similar fees or expenses for such period in connection with the borrowing of money, but excluding therefrom, without duplication, (a) the non-cash amortization of debt issuance costs, including original issue discount and premium, if any, (b) the write-off of deferred financing fees and charges in connection with the repayment of any Indebtedness and in connection with the Existing Credit Agreement, in each case, that are classified as interest under GAAP, (c) to the extent financed in connection with any refinancing of Indebtedness, any call premium required to be paid in cash in connection with such refinancing and the interest component of any remaining

 

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original issue discount on the Indebtedness so refinanced, and (d) dividends on preferred stock (if any) paid by the Borrowers which are required by GAAP to be treated as interest expense.

 

“ Consulting Engineer ” means an environmental consulting firm reasonably acceptable to the Administrative Agent.

 

“ 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) with respect to any Loan, the interest rate otherwise applicable to such Loan plus 2% per annum, (b) with respect to the Letter of Credit Fee, the Letter of Credit Percentage used in determining such Letter of Credit Fee plus 2% per annum, and (c) with respect to all other Obligations under this Agreement, an interest rate equal to the Base Rate plus the Applicable Rate otherwise applicable to portions of the Term B Loan bearing interest based on the Base Rate plus 2% per annum.

 

“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Term B Loan, the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy, receivership or insolvency proceeding.

 

“ De Minimis Subsidiaries ” means any Subsidiary of the Parent whose assets and annual gross revenues do not, in each case, exceed $1,000,000; provided that (i) the aggregate assets of all such Subsidiaries taken as a whole shall not exceed $2,000,000, and (ii) the aggregate annual gross revenues of all such Subsidiaries taken as a whole shall not exceed $2,000,000.  Schedule 5.13(a)  lists all of the De Minimus Subsidiaries as of the Closing Date.

 

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“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the grant of any option or other right to do any of the foregoing), 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.

 

“ Distribution ” means the declaration or payment of any dividend or other distribution (whether in cash, securities or other property) on or in respect of any Equity Interest of any Person, other than dividends payable solely in shares of common stock of such Person; the purchase, redemption, defeasance, retirement or other acquisition, cancellation or termination of any Equity Interests of such Person, directly or indirectly through a Subsidiary of such Person or otherwise and whether in the form of increases in the liquidation value of such Equity Interests or otherwise (including the setting apart of assets for a sinking or other analogous fund to be used for such purpose); the return of capital by any Person to its shareholders, partners or members (or the equivalent thereof) as such; or any other distribution on or in respect of any Equity Interests of such Person.

 

“ Dollar ” and “ $ ” mean lawful money of the United States.

 

“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

 

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and (ii) with respect to an assignment of a Revolving Commitment only, the L/C Issuer and the Swing Line Lender; provided that, unless an Event of Default has occurred or is continuing, (1) no assignment to a Person covered under clauses (a), (b) or (c) of this definition shall be permitted without the approval of the Parent if it would result in increased costs to the Borrowers, and (2) no assignment to a Person covered under clause (d)  of this definition shall be permitted without the approval of the Parent (each such approval not to be unreasonably withheld or delayed); and provided , further , that notwithstanding the foregoing, in no event shall any of the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries or a natural person be an “Eligible Assignee”.

 

“ Employee Benefit Plan ” means any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by any Borrower, any Non-Borrower Subsidiary or any ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.

 

“ Environmental Compliance Certificate ” means a certificate specifying the nature of a Default or Event of Default relating to an Environmental matter, the period of existence thereof and what action the Borrowers propose to take with respect thereto.

 

“ Environmental Laws ” has the meaning set forth in Section 5.16(a)  hereof.

 

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Borrower or any Non-Borrower Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,

 

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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 any class 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, as amended.

 

“ ERISA Affiliate ” means any Person which is treated as a single employer with any Borrower or any Non-Borrower Subsidiary under §414 of the Code.

 

“ ERISA Reportable Event ” means a reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

 

“ Eurodollar Rate ” means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) 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 Rate” for such Interest Period shall be the rate per annum determined by the Administrative 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 its request at approximately 11:00 a.m. (London time) two (2) Business Days prior to the commencement of such Interest Period.  Notwithstanding the foregoing, in no event shall the Eurodollar Rate applicable to the Term B Loan be less than 2.00%

 

“ Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on the Eurodollar Rate.

 

“ Event of Default ” has the meaning specified in Section 8.01 .

 

“ Exchange Act ” has the meaning specified in the definition of “ Securities Law ”.

 

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“ Excluded Issuance ” by any Borrower or any Non-Borrower Subsidiary means an issuance and sale of Equity Interests in such Borrower or such Non-Borrower Subsidiary: (a) in connection with, and as consideration for, a Permitted Acquisition, (b) to another Borrower, (c) from a Non-Borrower Subsidiary to another Non-Borrower Subsidiary or (d) to employees, consultants or directors of such Borrower or such Non-Borrower Subsidiary in connection with the exercise of options under a bona fide stock option or similar equity incentive plan or in connection with other bona fide stock related incentives approved by the Board of Directors of the Parent.

 

“ Excluded Subsidiaries ” means any Subsidiary, and any joint venture, partnership or other Person in which the Parent or a Subsidiary has a minority ownership interest, which in each case is designated by the Parent as an “Excluded Subsidiary” on Schedule 5.13(a) , and any other Person from time to time designated by the Parent as an “Excluded Subsidiary;” provided , that the Parent may not designate a Person as an “Excluded Subsidiary” if (a) the Investment made in such Person by the Borrowers and the Non-Borrower Subsidiaries, together with all Investments made in other Excluded Subsidiaries by the Borrowers and the Non-Borrower Subsidiaries would exceed that permitted by Section 7.02(j)  hereof, or (b) such Person would be required to be a guarantor of (i) the Subordinated Debt or (ii) the Second Lien Notes.

 

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrowers 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), by the jurisdiction (or any political subdivision thereof) under the Applicable 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 Lending Office is located or by any jurisdiction as a result of a present or former connection between such recipient and the jurisdiction imposing such tax (or any political subdivision thereof), other than any such connection arising solely from such recipient having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which any of the Borrowers is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii) , and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 10.14 ), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Applicable Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 3.01(a)(ii) .

 

“ Existing Credit Agreement ” has the meaning specified in the first recital hereto.

 

“ Existing Letters of Credit ” means all “Letters of Credit” (as defined in the Existing Credit Agreement) set forth in Exhibit I hereto.

 

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“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

 

“ Fee Letter ” means the letter agreement, dated June 12, 2009, among the Borrowers, the Administrative Agent and Banc of America Securities LLC.

 

“ Foreign Lender ” means any Lender that is organized under the Applicable Laws of a jurisdiction other than that in which the Borrowers are resident for tax purposes (including such a Lender when acting in the capacity of the L/C Issuer) or any other Lender that is not a “United States” person within the meaning of Section 7701(a)(30) of the Code.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“ Foreign Subsidiary ” means each Subsidiary of any Borrower (whether direct or indirect, existing on the date hereof or acquired or formed hereafter in accordance with the provisions hereof) which is incorporated under the laws of a jurisdiction other than a state or other jurisdiction of the United States of America.

 

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.

 

“ Fronting Fee ” has the meaning specified in Section 2.03(i)(iii)  hereto.

 

“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board 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).

 

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“ Greenfiber ” means U.S. GreenFiber LLC, a Delaware limited liability company in which U.S. Fiber owns a 50% equity interest.

 

“ Guaranteed Pension Plan ” means any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.

 

“ Hazardous Materials ” means any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) and any waste, hazardous waste, dangerous goods, contaminants, pollutants, toxic substance, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws.

 

“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract required or permitted under Article VI or VII , is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.

 

“ Impacted Lender ” means (i) a Defaulting Lender or (ii) any Lender as to which (a) the Administrative Agent, L/C Issuer or Swing Line Lender has a good faith belief that such Lender has defaulted in fulfilling its obligations under one or more syndicated credit facilities or (b) a Person that Controls such Lender has been deemed insolvent or becomes the subject of a bankruptcy, receivership or insolvency proceedings.

 

“ Increase Closing Date ” has the meaning set forth in Section 2.14(d)  hereof.

 

“ Indebtedness ” means, as to any Person and whether recourse is secured by or is otherwise available against all or only a portion of the assets of such Person and whether or not contingent, but without duplication:

 

(a)                                   every obligation of such Person for money borrowed,

 

(b)                                  every obligation of such Person evidenced by bonds, debentures, notes issued by such Person or other similar instruments, including such obligations incurred in connection with the acquisition of property, assets or businesses,

 

(c)                                   every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person,

 

(d)                                  every obligation of such Person issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding (x) trade accounts payable or accrued liabilities arising in the ordinary course of business which are not overdue in accordance with their terms or the Borrowers’ normal or ordinary business practices or which are being contested in good faith and holdbacks, and (y) guaranteed or contingent royalty payments made in connection with the purchase or operation of landfills and other types of disposal facilities),

 

(e)                                   every obligation of such Person under any Capitalized Lease,

 

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(f)                                     every obligation of such Person under any Synthetic Lease,

 

(g)                                  all sales by such Person of (i) accounts or general intangibles for money due or to become due, (ii) chattel paper, instruments or documents creating or evidencing a right to payment of money or (iii) other receivables (collectively “ receivables ”), whether pursuant to a purchase facility or otherwise, other than in connection with the disposition of the business operations of such Person relating thereto or a disposition of defaulted receivables for collection and not as a financing arrangement, and together with any obligation of such Person to pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection therewith,

 

(h)                                  every obligation of such Person (an “ equity related purchase obligation ”) to purchase, redeem, retire or otherwise acquire for value any Equity Interests of any class issued by such Person, any warrants, options or other rights to acquire any such shares, or any rights measured by the value of such shares, warrants, options or other rights,

 

(i)                                      every obligation of such Person under Swap Contracts,

 

(j)                                      every obligation in respect of Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under Applicable Law,

 

(k)                                   every obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guarantying or otherwise acting as surety for, any obligation of a type described in any of clauses (a) through (j) (the “ primary obligation ”) of another Person (the “ primary obligor ”), in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or supply funds for the purchase of) any security for the payment of such primary obligation, (ii) to purchase property, securities or services for the purpose of assuring the payment of such primary obligation, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation.

 

The “amount” or “principal amount” of any Indebtedness at any time of determination represented by (t) any Indebtedness, issued at a price that is less than the principal amount at maturity thereof, shall, except as otherwise expressly set forth herein, be the amount of the liability in respect thereof determined in accordance with GAAP, (u) any Capitalized Lease shall be the principal component of the aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof that is not subject to termination by the lessee, (v) any sale of receivables shall be the amount of unrecovered capital or principal investment of the purchaser (other than the Borrowers or any of their wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or interest earned on such investment, (w) any Synthetic Lease shall be the stipulated loss value, termination value or other equivalent amount, (x) any Swap Contract on any date shall be the Swap Termination Value thereof as of such date,

 

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(y) any equity related purchase obligation shall be the maximum fixed redemption or purchase price thereof that is payable upon a mandatory redemption or purchase of such equity inclusive of any accrued and unpaid dividends to be comprised in such redemption or purchase price and (z) any guarantee or other contingent liability referred to in clause (k) shall be an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty or other contingent obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith based upon the principles set forth in this paragraph.

 

“ Indemnified Taxes ” means Taxes other than Excluded Taxes and Other Taxes.

 

“ Indemnitee ” has the meaning specified in Section 10.04(b) .

 

“ Information ” has the meaning specified in Section 10.07 .

 

“ Information Memorandum ” means the June, 2009 confidential information memorandum used by the Joint Arrangers in connection with the syndication of the Loans.

 

“ Instrument of Accession ” has the meaning set forth in Section 2.14(c)  hereof.

 

“ Insurance Authorization Letter ” means any letter from the Borrowers directing the carriers of its insurance (other than liability insurance) to pay the proceeds of such insurance to the Administrative Agent, as first loss payee thereunder.

 

“ Insurance Subsidiary ” means any wholly-owned Subsidiary of the Parent organized and operated as a captive insurance subsidiary under the laws of any state or jurisdiction of the United States.

 

“ Intellectual Property Security Agreement ” means the Intellectual Property Security Agreement, dated as of the Closing Date, among the Borrowers and the Administrative Agent.

 

“ Intercreditor Agreement ” means the Intercreditor Agreement, dated as of the Closing Date, by and among Bank of America, as first lien agent, Wilmington Trust Company, as second lien agent, and the Borrowers.

 

“ 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 applicable to such Loan; 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 (including a Swing Line Loan), the last Business Day of each March, June September and December and the Maturity Date applicable to such Loan.

 

“ 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 the Borrowers in their Committed Loan Notice or Term B Loan Notice, as the case may be; provided that:

 

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(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 applicable to such Loan.

 

“ Investment ” means all expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition (or assumption, as applicable in the case of Indebtedness or other liabilities) of stock or other Equity Interests, assets constituting a business unit or all or a substantial part of the business of, a Person, or Indebtedness of, or the amount of loans, advances, capital contributions or transfers of property to, or in respect of any guarantees (or other commitments as described under Indebtedness), or obligations of, any Person.  In determining the aggregate amount of Investments outstanding at any particular time: (a) the amount of any Investment represented by a guaranty shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (d) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid; and (e) there shall not be deducted or (as the case may be) added from the aggregate amount of Investments any decrease or increase in the value thereof.

 

“ IRBs ” means industrial revenue bonds or solid waste disposal bonds issued by or at the request of the Borrowers.

 

“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and any Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.

 

“ Joinder Agreement ” has the meaning specified in Section 6.19 hereof.

 

“ Joint Arrangers ” means, collectively, Banc of America Securities LLC and Comerica Bank, each in their respective capacity as a joint arranger.

 

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“ L/C Advance ” means, with respect to any Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing in accordance with its Revolving Percentage.

 

“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a 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 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 Maximum Drawing Amount plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.

 

“ L/C Supported IRBs ” means IRBs backed by Letters of Credit issued hereunder.

 

“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.

 

“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.

 

“ Letter of Credit ” means any commercial or standby letter of credit issued hereunder and shall include the Existing Letters of Credit.

 

“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

 

“ Letter of Credit Expiration Date ” means the day that is seven (7) days prior to the Maturity Date then in effect for the Committed Loans (or, if such day is not a Business Day, the next preceding Business Day).

 

“ Letter of Credit Fee ” has the meaning specified in Section 2.03(i)(i) .

 

“ Letter of Credit Percentage ” means the percentage per annum equal to the Applicable Rate, as in effect from time to time, as set forth in the column “Eurodollar Rate Loans (and Letters of Credit)” in the table set forth in the definition of “Applicable Rate” above.

 

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

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“ Loan ” means an extension of credit by a Lender to the Borrowers under Article II in the form of the Term B Loan, a Committed Loan or a Swing Line Loan, and “ Loans ” shall mean all of such extensions of credit collectively.

 

“ Loan Documents ” means this Agreement, each Note, each Issuer Document, the Letters of Credit, the Security Documents, the Intercreditor Agreement, the Subordination Agreements, and any documents, instruments or agreements executed in connection with any of the foregoing, each as amended, modified, supplemented, or replaced from time to time.

 

“ Loan Notice ” means a Committed Loan Notice or a Term B Loan Notice.

 

“ Material Adverse Effect ” means (a) a material adverse change in, or material adverse effect upon, the operations, business, properties or financial condition of the Borrowers taken as a whole; (b) a material adverse impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of the Borrowers, taken as a whole, to repay the Loans; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower of any Loan Document to which it is a party.

 

“ Maturity Date ” means (a) with respect to the Committed Loans, December 31, 2012, and (b) with respect to the Term B Loan, April 9, 2014 or such earlier date as may be required by Section 2.07(c)  hereof.

 

“ Maximum Drawing Amount ” means the maximum drawing amount that beneficiaries may at any time draw under Letters of Credit, as such aggregate amount may be reduced from time to time pursuant to the terms of such Letters of Credit.  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.

 

“ Multiemployer Plan ” means any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate.

 

“ NELS ” means New England Landfill Solutions, LLC.

 

“ Net Cash Proceeds ” means (1) the aggregate cash proceeds received by any Borrower or Non-Borrower Subsidiary in respect of any Disposition, net of (a) the direct costs relating to such Disposition, including, without limitation, (i) legal, accounting and investment banking fees, and sales commissions, (ii) any relocation expenses incurred as a result thereof, and (iii) taxes paid or payable as a result thereof, in each case after taking into account any available tax credits or deductions and any tax sharing arrangements, (b) amounts required to be applied to the repayment of Indebtedness, other than subordinated Indebtedness, secured by a prior or senior Lien on the specific asset or assets being financed that were the subject of such Disposition, which Lien is permitted hereunder, (c) if the assets subject to such Disposition were financed by IRBs, amounts required to be applied to the repayment of such IRBs (or to the repayment of Indebtedness funded by such IRBs) with the proceeds of such Disposition by the terms of such IRBs or such Indebtedness and (d) appropriate amounts to be provided by any Borrower or Non-

 

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Borrower Subsidiary, as the case may be, as a reserve required in accordance with GAAP against any adjustment in the sale price of such asset or assets or liabilities associated with such Disposition and retained by any Borrower or Non-Borrower Subsidiary, as the case may be, after such Disposition, including, without limitation, pensions and other postemployment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Disposition, all as reflected in an Officers’ Certificate delivered to the Administrative Agent, provided , however , that any amounts remaining after adjustments, revaluations or liquidations of such reserves shall constitute Net Cash Proceeds; and (2) with respect to the sale or issuance of any Equity Interests by any Borrower or any Non-Borrower Subsidiary, or the incurrence or issuance of any Indebtedness by any Borrower or any Non-Borrower Subsidiary, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by such Borrower or such Non-Borrower Subsidiary in connection therewith.

 

“ Non-Borrower Subsidiary ” means the De Minimis Subsidiaries, the Foreign Subsidiaries and NELS, all of which as of the date hereof are listed on Schedule 5.13(a)  hereto, and any Insurance Subsidiary formed after the date hereof and which is disclosed to the Administrative Agent in writing; provided , that if any Non-Borrower Subsidiary becomes, or is required to become, a guarantor under the Senior Subordinated Notes or the Second Lien Notes it shall cease to be a Non-Borrower Subsidiary hereunder.

 

“ Note ” means a Term B Note or a Revolving Note, as the context may require.

 

“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Borrower 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 and all obligations of any Borrower under any Secured Cash Management Agreement and any Secured Hedge Agreement.

 

“ 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, including any certificate or articles of formation or organization of such entity.

 

“ Other Taxes ” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or

 

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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, except for Excluded Taxes.

 

“ Outstanding Amount ” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; (ii) with respect to any L/C Obligations on any date, the aggregate amount of all L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts; and (iii) with respect to the Term B Loan on any date, the aggregate outstanding principal amount of the Term B Loan on such date.

 

“ Parent ” has the meaning specified in the introductory paragraph hereto.

 

“ Participant ” has the meaning specified in Section 10.06(d) .

 

“ PBGC ” means the Pension Benefit Guaranty Corporation.

 

“ Performance Bonds ” has the meaning specified in Section 7.03(d)  hereto.

 

“ Permitted Acquisitions ” has the meaning specified in Section 7.04(a)  hereto.

 

“ Permitted Investments ” has the meaning specified in Section 7.02 hereto.

 

“ Permitted Liens ” has the meaning specified in Section 7.01 hereto

 

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“ Platform ” has the meaning specified in Section 6.04(h)  hereof.

 

“ Pledge Agreement ” means the Second Amended and Restated Pledge Agreement, dated as of the Closing Date, among the Borrowers and the Administrative Agent.

 

“ Real Property ” means all real property heretofore, now, or hereafter owned or leased by the Borrowers.

 

“ Register ” has the meaning specified in Section 10.06(c) .

 

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

 

“ Release ” means the broader of (i) the meaning specified for the term “Release” (or “Released”) in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§9601 et seq., as amended (“ CERCLA ”) and (ii) the meaning specified for the term “ Disposal ” (or “ Disposed ”) in the Resource Conservation and Recovery Act of 1976, 42

 

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U.S.C. §§6901 et seq., as amended (“ RCRA ”) and regulations promulgated thereunder; provided, that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply as of the effective date of such amendment and provided further, to the extent that the Applicable Laws of a state or province (or the Applicable Laws of Canada applicable therein) wherein the property lies establishes a meaning for “Release” or “Disposal” or any analogous term which is broader than specified in either CERCLA or RCRA, such broader meaning shall apply.

 

“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice or Term B Loan Notice, as the case may be, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

“ Required Lenders ” means, as of any date of determination, any combination of Lenders having more than fifty percent (50%) of the sum of (a) the Aggregate Commitments plus (b) the outstanding principal amount of the Term B Loan (with the aggregate amount of any Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that for purposes of this definition,  “Lender” shall not include any Defaulting Lender; and provided , further , that if the Revolving Commitments have been terminated or if the Maturity Date for the Committed Loans has occurred, any combination of Lenders holding more than fifty percent (50%) of the Total Outstandings.

 

“ Responsible Officer ” means the chief executive officer, president, chief financial officer, director of finance, director of financial operations, treasurer or assistant treasurer of the Parent.  Any document delivered hereunder that is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of any Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Borrower.

 

“ Restricted Payment ” means, in relation to the Borrowers and the Non-Borrower Subsidiaries, any (a) Distribution, (b) payment by any Borrower or Non-Borrower Subsidiaries to (i) such Borrower’s or such Non-Borrower Subsidiary’s shareholders (or other equity holders), in each case, other than to another Borrower, or (ii) to any Affiliate of such Borrower or such Non-Borrower Subsidiary or any Affiliate of such Borrower’s or such Non-Borrower Subsidiary’s shareholders (or other equity holders), in each case, other than to another Borrower or (c) derivatives or other transactions with any financial institution, commodities or stock exchange or clearinghouse (a “ Derivatives Counterparty ”) obligating such Borrower or such Non-Borrower Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any capital stock of such Borrower or such Non-Borrower Subsidiary.

 

“ Revolving Commitment ” means, as to each Revolving Lender, its obligation to (a) make Committed Loans to the Borrowers pursuant to Section 2.01(b) , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.01 or in the Assignment and Assumption or the Instrument of

 

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Accession pursuant to which such Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“ Revolving Lenders ” means the Lenders making Committed Loans.

 

“ Revolving Note ” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Committed Loans or Swing Line Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit C-2 or Exhibit C-3, as applicable .

 

“ Revolving Percentage ” means with respect to any Revolving Lender as of any date, such Revolving Lender’s portion of and participating interest in, calculated as a percentage (carried out to the ninth decimal place), of (a) the sum of (i) the outstanding principal amount of all Committed Loans on such date, plus (ii) the outstanding principal amount of all Swing Line Loans on such date, plus (iii) all L/C Obligations on such date (collectively, the “ Revolving Percentage ”).  If the Revolving Commitment of any Revolving Lender to make Committed Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02(a)  or if the Aggregate Commitments have expired, then the Revolving Percentage of each Revolving Lender shall be determined based on the Revolving Percentage of such Revolving Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Revolving Lender is set forth opposite the name of such Revolving Lender on Schedule 2.01 or in the Assignment and Assumption or Instrument of Accession, as the case may be, pursuant to which such Revolving Lender becomes a party hereto, as applicable.

 

“ Sarbanes-Oxley ” means the Sarbanes-Oxley Act of 2002, as amended.

 

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“ Second Lien Note Documents ” means the Second Lien Notes, the Second Lien Notes Indenture and the Second Lien Security Documents, in each case including any successor or replacement agreements or documents entered into pursuant to a renewal, extension or refinancing permitted under Section 7.03(j) .

 

“ Second Lien Notes ” means the Borrowers’ 11% Senior Second Lien Notes Due 2014, issued pursuant to the Second Lien Notes Indenture and any notes issued by the Borrowers in exchange for, and as contemplated by, the Second Lien Notes and the related registration rights agreement with substantially identical terms as the Second Lien Notes.

 

“ Second Lien Notes Indenture ” means the Indenture under which the Second Lien Notes were issued, among the Borrowers and the trustee named therein from time to time, as in effect on the Closing Date and as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement.

 

“ Second Lien Notes Offering Memorandum ” means the Offering Memorandum, dated July 1, 2009, in respect of the Second Lien Notes.

 

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“ Second Lien Security Documents ” means the “Security Documents” as defined in the Second Lien Notes Indenture.

 

“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between any Borrower and any Cash Management Bank.

 

“ Secured Hedge Agreement ” means any Swap Contract required or permitted under Article VI or VII that is entered into by and between any Borrower and any Hedge Bank.

 

“ Security Agreement ” means the Second Amended and Restated Security Agreement, dated as of the Closing Date, among the Borrowers and the Administrative Agent.

 

“ Security Documents ” means the Security Agreement, the Pledge Agreement, the Intellectual Property Security Agreement, each as amended and in effect from time to time, and any additional documents evidencing or perfecting the Administrative Agent’s Lien on the assets of the applicable Borrowers for the benefit of the applicable Lenders (including Uniform Commercial Code financing statements).

 

“ Securities Laws ” means the Securities Act of 1933, the Securities Exchange Act of 1934 (the “ Exchange Act ”), 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.

 

“ Seller Subordinated Debt ” means Indebtedness of any of the Borrowers (other than the Senior Subordinated Debt) which has been subordinated and made junior to the payment and performance in full in cash of the Obligations, and evidenced as such by a subordination agreement containing subordination provisions substantially in the form of Exhibit F hereto (the “ Subordination Agreement ”); provided that (a) at the time such Seller Subordinated Debt is incurred, no Default or Event of Default has occurred or would occur as a result of such incurrence, and (b) the documentation evidencing such Seller Subordinated Debt shall have been delivered to the Administrative Agent and shall contain all of the following characteristics:  (i) it shall be unsecured, (ii) it shall bear interest at a rate not to exceed the market rate, (iii) it shall not require unscheduled principal repayments thereof prior to the maturity date of such debt, (iv) if it has any covenants, such covenants (including covenants relating to incurrence of indebtedness) shall be meaningfully less restrictive than those set forth herein, (v) it shall have no restrictions on the Borrowers’ ability to grant liens securing indebtedness ranking senior to such Seller Subordinated Debt, (vi) it shall permit the incurrence of senior indebtedness under this Credit Agreement, (vii) it may be cross-accelerated with the Obligations and other senior indebtedness of the Borrowers (but shall not be cross-defaulted except for payment defaults which the senior lenders have not waived) and may be accelerated upon bankruptcy, (viii) it shall provide for the complete, automatic and unconditional release of any and all guarantees of such Seller Subordinated Debt granted by any Borrower in the event of the sale by any Person of such Borrower or the sale by any Person of all or substantially all of such Borrower’s assets (including in the case of a foreclosure), (ix) it shall provide that (A) upon any payment or distribution of the assets of the Borrowers (including after the commencement of a bankruptcy proceeding) of any kind or character, all of the Obligations (including interest accruing after the commencement of

 

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any bankruptcy proceeding at the rate specified for the applicable Obligation, whether or not such interest is an allowable claim in any such proceeding) shall be paid in full in cash prior to any payment being received by the holders of the Seller Subordinated Debt and (B) until all of the Obligations (including the interest described in subclause (A) above) are paid in full in cash, any payment or distribution to which the holders of the Seller Subordinated Debt would be entitled but for the subordination provisions of the type described in clauses (x) and (xi) hereof shall be made to the holders of the Obligations, (x) it shall provide that in the event of a payment default under Section 8.01(a)  and (b)  hereof, the Borrowers shall not be required to pay the principal of, or any interest, fees and all other amounts payable with respect to the Seller Subordinated Debt until the Obligations have been paid in full in cash, (xi) it shall provide that in the event of any other Event of Default, the Lenders shall be permitted to block with respect to the Seller Subordinated Debt for a period of 180 days (A) payments of principal, interest, fees and all other amounts payable, and (B) enforcement of remedies for Seller Subordinated Debt in excess of $1,000,000, and (xii) it shall acknowledge that none of the provisions outlined in part (b) of this definition can be amended, modified or otherwise altered without the prior written consent of the Required Lenders.

 

“ Senior Subordinated Debt ” means (a) the existing senior subordinated Indebtedness of the Borrowers evidenced by the Senior Subordinated Debt Documents in the original aggregate principal amount of $195,000,000 and (b) any other senior subordinated debt permitted under Section 7.03 hereof which shall be on market terms and otherwise reasonably acceptable to the Required Lenders in all respects.

 

“ Senior Subordinated Debt Documents ” means the Senior Subordinated Notes Indenture, the Senior Subordinated Notes and all other documents, instruments and agreements entered into or executed in connection therewith or in connection with other Senior Subordinated Debt.

 

“ Senior Subordinated Notes ” means the 9.75% Senior Subordinated Notes due 2013 issued by the Parent pursuant to the Senior Subordinated Notes Indenture.

 

“ Senior Subordinated Notes Indenture ” means the Indenture, dated as of January 24, 2003, among the Parent, certain of its Subsidiaries as guarantors and U.S. Bank National Association as trustee, with respect to the Senior Subordinated Notes.

 

“ Spot Rate ” means, with respect to any “first currency” (as defined in Section 2.15 ), at any date of determination thereof, the spot rate of exchange in London that appears on the display page applicable to such first currency on the Reuters System (or such other page as may replace such page on such service for the purpose of displaying the spot rate of exchange in London) for the conversion of such first currency into the “second currency” (as defined in Section 2.15 ); provided , however , that if there shall at any time no longer exist such a page on such service, the Spot Rate shall be determined by reference to another similar rate publishing service selected by the Administrative Agent.

 

“ Subordination Agreement ” has the meaning specified in the definition of “ Seller Subordinated Debt ”.

 

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“ Subordinated Debt ” means, collectively, the Senior Subordinated Debt and the Seller Subordinated Debt.

 

“ 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 other 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 the Parent.

 

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

 

“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

“ Swing Line ” means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04(a) .

 

“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .

 

“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

“ Swing Line Loan ” has the meaning specified in Section 2.04(a) .

 

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“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B hereto.

 

“ Swing Line Sublimit ” means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.

 

“ Synthetic Lease ” means any lease of goods or other property, whether real or personal, which is treated as an operating lease under GAAP and as a loan or financing for U.S. income tax purposes or which, upon the application of any Debtor Relief Laws, would be characterized as indebtedness (without regard to accounting treatment).

 

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“ Term B Lender ” means any Lender holding a portion of the Term B Loan, as set forth in Schedule 2.01 as of the Closing Date (as such Schedule 2.01 may be amended from time to time), together with any other Person who becomes an assignee of any rights and obligations of a Term B Lender.

 

“ Term B Loan ” means the term loan advanced or to be advanced in accordance with the Section 2.01(a)  in the original principal amount of $130,000,000, as such amount may be reduced or increased pursuant to the terms hereof.

 

“ Term B Loan Borrowing ” means a borrowing consisting of any portions of the Term B Loan of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period, advanced by the Term B Lenders pursuant to Section 2.01(b) .

 

“ Term B Loan Notice ” means a notice of (a) a Term B Loan Borrowing, (b) a conversion of any portion of the Term B Loan 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-2 .

 

“ Term B Loan Percentage ” means, with respect to any Term B Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B Loan represented by the principal amount of such Term B Lender’s portion of the Outstanding Amount of the Term B Loan at such time.  The initial Term B Loan Percentage of each Term B Lender is set forth in Schedule 2.01 or in the Assignment and Assumption or Instrument of Accession pursuant to which such Term B Lender becomes a party hereto, as applicable.

 

“ Term B Note ” means a promissory note made by the Borrower in favor of a Term B Lender, evidencing a portion of the Term B Loan made by such Term B Lender, substantially in the form of Exhibit C-1 .

 

“ Threshold Amount ” means $5,000,000.

 

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“ Total Facility Amount ” means, as at any date of determination, the sum of (i) the Aggregate Commitments plus (ii) the aggregate Outstanding Amount of the Term B Loan, as the same may be increased from time to time pursuant to Section 2.14 hereof or reduced from time to time in accordance with the terms hereof.  As of the Closing Date, the Total Facility Amount is equal to $307,500,000, comprised of $177,500,000 in Aggregate Commitments and $130,000,000 in Outstanding Amount of the Term B Loan.

 

“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

 

“ Total Revolving Outstandings ” means the aggregate Outstanding Amount of Committed Loans, Swing Line Loans and L/C Obligations.

 

“ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

 

“ UCC ” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

 

“ United States ” and “ U.S. ” mean the United States of America.

 

“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .

 

“ U.S. Fiber ” means U.S. Fiber, Inc., a North Carolina corporation.

 

1.02        Other Interpretive Provisions .  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)           The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s permitted successors and permitted 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

 

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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 the Borrowers or the Required Lenders shall so request, the Administrative Agent and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

(c)           Consolidation of Variable Interest Entities .  All references herein to consolidated financial statements of the Parent and its Subsidiaries or to the determination of any amount for the Borrowers and their Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Parents and its Subsidiaries 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 the Borrowers 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

 

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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 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.  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.

 

ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS

 

2.01        The Loans.

 

(a)           The Term B Loan Borrowing .  Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a single loan to the Borrowers on the Closing Date in an amount not to exceed such Term B Lender’s Term B Percentage, as set forth on Schedule 2.01 , of the Term B Loan, and all of such Term B Lenders’ loans so made constitute the Term B Loan.  Amounts borrowed under this Section 2.01(a)  and repaid or prepaid may not be reborrowed.  Portions of the Term B Loan may be Base Rate Loans or Eurodollar Rate Loans as further provided herein.

 

(b)           The Committed Borrowings .  Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make revolving loans (each such loan, a “ Committed Loan ”) to the Borrowers 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 Revolving Commitment; provided , however , that after giving effect to any Committed Borrowing, (i) the Total Revolving Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Revolving Lender’s Revolving Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Lender’s Revolving Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Lender’s Revolving Commitment.  Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01(b) , prepay under Section 2.05 , and reborrow under this Section 2.01(b) .  Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

 

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2.02         Borrowings, Conversions and Continuations of Loans.

 

(a)            Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrowers’ irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrowers pursuant to this Section 2.02(a)  must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrowers.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c)  and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrowers are requesting a Term B Loan Borrowing, a Committed Borrowing, a conversion of 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 Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrowers fail to specify a Type of Loan in a Loan Notice or if the Borrowers fail to give a timely notice requesting a conversion or continuation, then the applicable 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 the Borrowers request a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fail to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

 

(b)            Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Administrative 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 Term B Loan Borrowing or a Committed Borrowing, each applicable Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable 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 ), the Administrative Agent shall make all funds so received available to the Borrowers in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrowers 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 the Administrative Agent by the Borrowers; provided , however , that if, on the date a Committed Loan Notice with respect to a Committed Borrowing is given by the Borrowers, there are L/C Borrowings outstanding, then the proceeds of such Committed Borrowing, first , shall be applied

 

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to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrowers 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.

 

(d)            The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

(e)            After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to 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 Revolving Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrowers, 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 Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrowers 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 Revolving Outstandings shall not exceed the Aggregate Commitments, and (y) the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Revolving Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Revolving Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment.  Each request by the Borrowers for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers 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:

 

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(A)           subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have approved such expiry date; or

 

(B)            the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have approved such expiry date (it being agreed that following the Letter of Credit Expiration Date, any outstanding Letter of Credit would be required to be cash collateralized by the Borrowers).

 

(iii)           The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

 

(A)           any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Applicable 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)            such Letter of Credit is to be denominated in a currency other than Dollars; or

 

(D)          a default of any Revolving Lender’s obligations to fund under Section 2.03(c)  exists or any Revolving Lender is at such time an Impacted Lender hereunder, unless the L/C Issuer has entered into arrangements satisfactory to it with the Borrowers to eliminate the L/C Issuer’s risk with respect to such Impacted Lender, including by the Borrowers providing cash collateral or similar security in support of such Impacted Lender’s Revolving Percentage of the L/C Obligations.  Any cash collateral provided by the Borrowers under this Section 2.03(a)(iii)(D)  shall be deemed to be “Cash Collateral” under Section 2.03(g)  and shall be governed by the terms thereof.

 

(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.

 

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(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 Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article 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” 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 the Borrowers delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrowers.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrowers shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.

 

(ii)            Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrowers and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Revolving Lender,

 

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the Administrative Agent or any Borrower, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article 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 the applicable Borrower 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 Revolving 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 Revolving Percentage times the amount of such Letter of Credit.

 

(iii)           If the Borrowers so request in any applicable Letter of Credit Application, the L/C Issuer may agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrowers 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 Revolving Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)  or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Lender or the Borrowers 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.

 

(iv)           If the Borrowers so request 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, the Borrowers 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 Revolving 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,

 

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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 (5) Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments have elected not to permit such reinstatement or (B) from the Administrative Agent, any Revolving Lender or the Borrowers 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.

 

(v)            Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrowers and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

 

(c)            Drawings and Reimbursements; Funding of Participations .

 

(i)             Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrowers and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit, or within 2 hours after notice, if such notice occurs after 11:00 a.m. (each such date, an “ Honor Date ”), the Borrowers shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Revolving Lender’s Revolving Percentage thereof.  In such event, the Borrowers 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 Section 4.02(b)  and the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)            Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)  make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Revolving Lender that so makes funds available

 

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shall be deemed to have made a Base Rate Committed Loan to the Borrowers in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer.

 

(iii)           With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrowers 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 Revolving Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of its participation obligation under this Section 2.03 .

 

(iv)           Until each Revolving 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 Revolving Lender’s Revolving Percentage of such amount shall be solely for the account of the L/C Issuer.

 

(v)            Each Revolving 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 Revolving Lender may have against the L/C Issuer, the Borrowers 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 Revolving 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 the Borrowers of a Committed Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers 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 Revolving Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Revolving 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 Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the 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 L/C Issuer in connection with the foregoing.  If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in

 

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respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d)            Repayment of Participations .

 

(i)             At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Lender its Revolving Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.

 

(ii)            If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)            Obligations Absolute .  The obligation of the Borrowers 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, without limitation, the following:

 

(i)             any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

 

(ii)            the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers 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

 

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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 any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

 

(v)            any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrowers or any Subsidiary.

 

The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrowers’ instructions or other irregularity, the Borrowers will immediately notify the L/C Issuer.  The Borrowers 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 Revolving Lender and each of the Borrowers 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, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as they may have against the beneficiary or transferee under any Applicable Law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers which the Borrowers 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

 

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limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

 

(g)            Cash Collateral .  Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.05(c)  and 8.02(c)  set forth certain additional requirements to deliver cash collateral (“ Cash Collateral ”) hereunder.  For purposes of this Section 2.03 , Section 2.05 and Section 8.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to the Security Documents.  Derivatives of such term have corresponding meanings.  The Borrowers hereby grant to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving 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.  If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent (or the subordinated claim of the collateral agent under the Second Lien Note Documents) or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrowers will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer.

 

(h)            Applicability of ISP/UCP .  Unless otherwise expressly agreed by the L/C Issuer and the Borrowers 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 at the time of issuance shall apply to each commercial Letter of Credit.

 

(i)             Letter of Credit Fees .

 

(i)             The Borrowers jointly and severally agree to pay, at the times specified in this Section 2.03(i) , a Letter of Credit fee (the “ Letter of Credit Fee ”) to the Administrative Agent for the benefit of the Revolving Lenders, equal to the product of (A) the Letter of Credit Percentage multiplied by (B) the Maximum Drawing Amount of each Letter of Credit on the date of calculation, to be shared pro rata by each of such

 

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Revolving Lenders in accordance with their respective Revolving Percentages.  For purposes of computing the daily Maximum Drawing Amount of any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  The Letter of Credit Fee shall be payable quarterly in arrears on the tenth (10 th ) Business Day after the end of each calendar quarter for the immediately preceding calendar quarter and on the Maturity Date for the Committed Loans with respect to the daily Maximum Drawing Amount of Letters of Credit outstanding during such calendar quarter or a portion thereof.  If there is any change in the Letter of Credit Percentage during any quarter, the daily Maximum Drawing Amount of each Letter of Credit shall be computed and multiplied by the Letter of Credit Percentage separately for each period during such quarter that such Letter of Credit Percentage was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of Revolving Lenders holding in excess of fifty percent (50%) of the Aggregate Commitments, while any Event of Default exists, the Letter of Credit Fee shall accrue at the Default Rate.

 

(ii)            In addition, the Borrowers jointly and severally agree to pay a fronting fee (the “ Fronting Fee ”) to the L/C Issuer for its account (i) with respect to each commercial Letter of Credit, in an amount equal to 0.125% per annum of the Maximum Drawing Amount of such Letter of Credit, and payable upon the issuance thereof, and (ii) with respect to each standby Letter of Credit, in an amount equal to 0.125% per annum of the Maximum Drawing Amount of such Letter of Credit, payable quarterly basis in arrears on the same day each quarter as the Letter of Credit Fee.  In addition, the Borrowers shall jointly a severally agree to pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

(j)             Conflict with Issuer Documents .  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

2.04         Swing Line Loans.

 

(a)            The Swing Line .  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.04 , to make loans (each such loan, a “ Swing Line Loan ”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Revolving Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Revolving Lender acting as Swing Line Lender, may exceed the amount of such Revolving Lender’s Revolving Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Revolving Lender, plus such Revolving Lender’s Revolving Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Revolving Lender’s Revolving Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Revolving Lender’s Revolving Commitment (other than a Swing Line Lender (as

 

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set forth above)), and provided , further , that the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 .  Each Swing Line Loan shall bear interest only at a rate based on the Base Rate plus the Applicable Rate for Base Rate Loans that are Committed Loans and no Swing Line Loan may be converted to a Eurodollar Rate Loan.  Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Lender’s Revolving Percentage times the amount of such Swing Line Loan.

 

(b)            Borrowing Procedures .  Each Swing Line Borrowing shall be made upon the Borrowers’ irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 2:30 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer or other signatories of the Borrowers approved by the Borrowers and the Administrative Agent.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 2:30 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers at its office by crediting the account of the Borrowers on the books of the Swing Line Lender in immediately available funds.

 

(c)            Refinancing of Swing Line Loans .

 

(i)             The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby irrevocably authorize the Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Revolving Lender’s Revolving Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 .  The Swing Line Lender shall furnish the Borrowers with a copy of the applicable

 

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Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Lending Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

(ii)            If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)  shall be deemed payment in respect of such participation.

 

(iii)           If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c)  by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loans, as the case may be.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

(iv)           Each Revolving Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(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 Revolving Lender may have against the Swing Line Lender, the Borrowers 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 2.04(c)  is subject to the conditions set forth in Section 4.02 ).  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans, together with interest as provided herein.

 

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(d)            Repayment of Participations .

 

(i)             At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its Revolving Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.

 

(ii)            If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Lender shall pay to the Swing Line Lender its Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)            Interest for Account of Swing Line Lender .  The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans.  Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Revolving Percentage of any Swing Line Loan, interest in respect of such Revolving Percentage shall be solely for the account of the Swing Line Lender.

 

(f)             Payments Directly to Swing Line Lender .  The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

 

(g)            Impacted Lender .  Notwithstanding anything to the contrary contained in this Section 2.04 , the Swing Line Lender will not make any Swing Line Loans at a time when the Swing Line Lender has actual knowledge that any Revolving Lender is an Impacted Lender, unless the Swing Line Lender has entered into arrangements satisfactory to it with the Borrowers to eliminate the Swing Line Lender’s risk with respect to such Impacted Lender, including by the Borrowers providing cash collateral or similar security in support of such Impacted Lender’s Revolving Percentage of all outstanding Swing Line Loans.  Any cash collateral provided by the Borrowers under this Section 2.04(g)  shall be deemed to be “Cash Collateral” under Section 2.03(g)  and shall be governed by the terms thereof.

 

2.05         Prepayments.

 

(a)            Optional .

 

(i)             The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Term B Loans and Committed Loans in whole or in part without premium or penalty; provided that (A) such notice must be

 

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received by the Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment shall be in a principal amount of $250,000 or a whole multiple of $250,000 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, whether the Loan to be prepaid is a Committed Loan or a Term B Loan, the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage).  If such notice is given by the Borrowers, the Borrowers 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 prepayment of the outstanding Term B Loans pursuant to this Section 2.05(a)  shall be applied to the principal repayment installments thereof in inverse order of maturity, and each prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the applicable Loans being prepaid.

 

(ii)            The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

(b)            Mandatory .

 

(i)             Excess Operating Cash Flow .  Within ten (10) days after financial statements have been delivered pursuant to Section 6.04(a)  and the related Compliance Certificate has been delivered pursuant to Section 6.04(c) , commencing with the fiscal year ending April 30, 2010 and for each fiscal year thereafter, the Borrowers shall prepay an aggregate principal amount of the Term B Loan equal to 50% of Consolidated Excess Operating Cash Flow for the fiscal year covered by such financial statements; provided , that if, for any fiscal year, the ratio of Consolidated Senior Funded Debt to Consolidated EBITDA with respect to such fiscal year is less than or equal to 3.00 to 1.00, as evidenced by the Compliance Certificate delivered by the Borrowers pursuant to Section 6.04(c)  with respect to the annual financial statements, the mandatory prepayment otherwise owed by the Borrowers pursuant to this Section 2.05(b)(i)  shall be reduced to $0.00 for such fiscal year.

 

(ii)            Dispositions .  If any Borrower or any Non-Borrower Subsidiary Disposes of any assets and such Disposition results in the realization by the Borrowers of Net Cash

 

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Proceeds in excess of $15,000,000 in the aggregate for any fiscal year, the Borrowers shall prepay an aggregate principal amount of the Term B Loan equal to 100% of such Net Cash Proceeds in excess of the foregoing amount immediately upon receipt thereof; provided , however , that, with respect to Net Cash Proceeds realized under any Disposition described in this Section 2.05(b)(ii) , at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, the Borrowers may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 330 days after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (as certified by the Borrowers in writing to the Administrative Agent); and provided , further , however , that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Term B Loan as set forth in this Section 2.05(b)(ii) .

 

(iii)           Equity Interests .    Upon the sale or issuance by any Borrower or any Non-Borrower Subsidiary of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Borrower or Non-Borrower Subsidiary), the Borrowers shall prepay an aggregate principal amount of the Term B Loan equal to 50% of all Net Cash Proceeds received therefrom immediately following the receipt thereof by the applicable Borrower or Non-Borrower Subsidiary.

 

(iv)           Indebtedness .        Without limitation of the provisions of Section 7.03 , upon the incurrence or issuance by any Borrower or any Non-Borrower Subsidiary of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 ), the Borrowers shall prepay an aggregate principal amount of the Term B Loan equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Borrower or such Non-Borrower Subsidiary.

 

(v)            Application of Net Cash Proceeds .    Each prepayment of the Term B Loan pursuant to the foregoing provisions of this Section 2.05(b)  shall be applied to the principal repayment installments thereof in inverse order of maturity, and each prepayment shall be paid to the Lenders in accordance with their respective Term B Loan Percentage.

 

(vi)           Total Revolving Outstandings .  If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrowers shall immediately prepay the Committed Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided , however , that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(vi)  unless after the prepayment in full of the Committed Loans the Outstanding Amount of L/C Obligations exceed the Aggregate Commitments then in effect.

 

(c)            Term B Opt-out .  With respect to any prepayment of the Term B Loan pursuant to Section 2.05(b) , any Term B Lender, at its option, may elect not to accept such prepayment.  Upon receipt by the Administrative Agent of any such prepayment of the Term B Loan, the amount of the prepayment that is available to prepay the Term B Loan (the “ Prepayment

 

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Amount ”) shall be deposited in a blocked, non-interest bearing cash collateral deposit account at Bank of America on terms reasonably satisfactory to the Administrative Agent and the Borrowers, pending application of such amount on the Prepayment Date as set forth below and promptly after the date of such receipt, the Administrative Agent shall notify the Term B Lenders of the amount available to prepay the Term B Loans and the date on which such prepayment shall be made (the “ Prepayment Date ”), which date shall be 5 Business Days after the date of such receipt.  Any Lender declining such prepayment (a “ Declining Lender ”) shall give written notice to the Administrative Agent by 11:00 a.m. on the Business Day immediately preceding the Prepayment Date.  On the Prepayment Date, an amount equal to that portion of the Prepayment Amount accepted by the Term B Lenders other than the Declining Lenders (such Lenders being the “ Accepting Lenders ”) to prepay a portion of the Term B Loan owing to such Accepting Lenders shall be withdrawn from the applicable cash collateral deposit account and applied ratably to prepay Term B Loans owing to such Accepting Lenders in the manner described in Section 2.05(b) , as applicable, for such prepayment.  Any amounts that would otherwise have been applied to prepay Term B Loans owing to Declining Lenders shall instead be applied ratably to prepay the Committed Loans on a temporary basis (subject to reborrowing and reinvestment in accordance with the terms of this Agreement), provided that such amounts shall be held in the applicable cash collateral deposit account until such time as such prepayment can be made without causing the Borrowers to incur amounts due under Section 3.05 .

 

2.06         Termination or Reduction of the Revolving Commitments.

 

(a)            Revolving Commitments .  The Borrower may, upon notice to the Administrative Agent, terminate or reduce the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative 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 $3,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify the Revolving 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 Revolving 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.

 

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2.07         Repayment of Loans.

 

(a)            Committed Loans .  The Borrowers shall repay to the Revolving Lenders on the Maturity Date for the Committed Loans the aggregate principal amount of all Committed Loans outstanding on such date.

 

(b)            Swing Line Loans .  The Borrowers shall repay each Swing Line Loan on the earlier to occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date for the Committed Loans.

 

(c)            Term B Loans .  The Borrowers shall repay to the Term B Lenders the principal amount of the Term B Loan in an aggregate amount, in each fiscal year, equal to 1% of the original principal amount of the Term B Loan (each, an “ Annualized Installment ”), with each such Annualized Installment being due and payable in four consecutive quarterly payments in each calendar year on the last Business Day of each March, June, September and December , commencing with September 30, 2009, with a final balloon payment on the Maturity Date for the Term B Loans in an amount equal to the unpaid balance of the Term B Loan plus accrued and unpaid interest; provided , that if the Borrowers fail to refinance the Senior Subordinated Notes on or before October 31, 2012 in a manner reasonably satisfactory to the Administrative Agent and permitted under this Agreement, the Maturity Date for the Term B Loan shall automatically be deemed to be December 31, 2012 and all amounts outstanding under the Term B Loan, plus accrued and unpaid interest thereon, and all (if any) other amounts payable in connection therewith, shall be due and payable in full on December 31, 2012.

 

2.08         Interest.

 

(a)            Subject to the provisions of Section 2.08(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; (ii) each Base Rate 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; and (iii) each Swing Line 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 for Base Rate Committed Loans.

 

(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 the Borrowers 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.

 

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(iii)           Upon the request of the Required Lenders, while any Event of Default exists, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder (and, without duplication, on any past due amount) at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by Applicable Law.

 

(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 Section 2.03(i) :

 

(a)            Commitment Fee .  The Borrowers jointly and severally in accordance with Section 10.12 agree (to the fullest extent permitted by Applicable Law) to pay to the Administrative Agent for the benefit of the Revolving Lenders in accordance with their respective Revolving Percentages, a commitment fee (the “ Commitment Fee ”) calculated at the rate per annum equal to the Applicable Rate with respect to the Commitment Fee as in effect from time to time, on the daily amount during each calendar quarter or portion thereof from the Closing Date until the Maturity Date for the Committed Loans by which the Aggregate Commitments exceeds the sum of (i) the Outstanding Amount of Committed Loans, plus (ii) the Outstanding Amount of L/C Obligations during such calendar quarter.  The Commitment Fee shall be payable quarterly in arrears on the last Business Day of each March, June, September and December with a final payment on the Maturity Date or any earlier date on which the Commitments shall terminate.  If there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(b)            Other Fees .  The Borrowers jointly and severally in accordance with Section 10.12 hereof shall pay to each Joint Arranger and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

2.10         Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

 

(a)            All computations of interest for Base Rate Loans 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

 

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Section 2.12(a) , bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

(b)            If,