SECOND AMENDED AND RESTATED MULTI-CURRENCY, MULTI-OPTION CREDIT AGREEMENT

 

 

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SECOND AMENDED AND RESTATED MULTI-CURRENCY, MULTI-OPTION CREDIT AGREEMENT, dated as of March 31, 2009, among:

W I T N E S S E T H:

WHEREAS, the Company is party to that certain Amended and Restated Multi-Currency, Multi-Option Credit Agreement, dated as of June 22, 2006 (the “ Existing Credit Agreement ”), among the Company, Harman Holding GmbH & Co. KG, as an additional borrower, the several banks and other financial institutions from time to time parties thereto, HSBC Bank USA, National Association, Bayerische Hypo - und Vereinsbank AG, New York Branch and Bank of Tokyo-Mitsubishi Trust Company, as syndication agents, J.P. Morgan Securities Inc., as arranger, and JPMorgan Chase Bank, N.A., as administrative agent;

WHEREAS, the parties hereto have agreed to amend and restate the Existing Credit Agreement as provided in this Agreement to, among other things, (x) permit each Lender to elect to become an Extended Tranche Lender and to convert its Commitment and its outstanding Loans (each as defined in the Existing Credit Agreement) to an Extended Tranche Commitment and Extended Tranche Loans and (y) provide for the Extended Tranche Obligations (as defined below) to be guaranteed and secured as provided herein and in the other Loan Documents; and

WHEREAS, it is the intent of the parties hereto, and the parties hereto agree, that (x) this Agreement shall not constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement or evidence repayment of any of such obligations or liabilities and (y) this Agreement shall amend and restate in its entirety the Existing Credit Agreement;

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto hereby agree that on the date hereof, subject to the satisfaction of the conditions precedent set forth in subsection 7.1 hereof, the Existing Credit Agreement shall be, and hereby is, amended and restated in its entirety as follows:

 

 

SECTION 1

DEFINITIONS

1.1.            Defined Terms .  As used in this Agreement, the following terms shall have the following meanings:

“ ABR ”:  for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1%, (c) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (d) the Adjusted Eurocurrency Rate for Dollars for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, for the avoidance of doubt, the Adjusted Eurocurrency Rate for any day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or substitute page) at approximately 11:00 a.m. London time on such day (without any rounding).  Any change in the ABR due to a change in the Prime Rate, the Base CD Rate, the Federal Funds Effective Rate or the Adjusted Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the Base CD Rate, the Federal Funds Effective Rate or the Adjusted Eurocurrency Rate, respectively.

“ ABR Loans ”:  Loans in Dollars bearing interest based upon the ABR.

“ Acquisition ”:  means any transaction or series of related transactions for the purpose of, or resulting in, directly or indirectly, (a) the acquisition by the Company or any Subsidiary of all or substantially all of the assets of a Person or of any business or division of a Person or (b) the acquisition by the Company or any Subsidiary of more than 50% of any class of Voting Stock (or similar ownership interests) of any Person.

“ Additional Borrower ”:  Harman Holding GmbH & Co. KG, a company organized under the laws of Germany and a Wholly Owned Subsidiary of the Company.

“ Additional Borrower Obligations ”:  a collective reference to both the Original Tranche Additional Borrower Obligations and the Extended Tranche Additional Borrower Obligations.

“ Additional Borrower Percentage ”:  as of the Restatement Effective Date, with respect to the Additional Borrower, 66 ^2/3 %; provided , that upon written notice by the Borrowers to the Administrative Agent, such percentage (a) may be increased and/or decreased from time to time and at any time by the Borrowers, and (b) as of the effective date for any such increase or decrease specified by the Borrowers in the applicable notice thereof, shall be the percentage so specified.

“ Adjusted Eurocurrency Rate ”:  with respect to any Eurocurrency Loan for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the Eurocurrency Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

 

“ Administrative Schedule ”:  Schedule II to this Agreement, which contains interest rate definitions and administrative information in respect of each Currency and each Class and Type of Loan.

“ Affiliate ”:  as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 20% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“ Agreement ”:  this Second Amended and Restated Multi-Currency, Multi-Option Credit Agreement, as amended, supplemented or otherwise modified from time to time.

“ Agreement Currency ”:  as defined in subsection 12.8(b).

“ Applicable Margin ”:  for each day during each Interest Period in respect of (a) any Original Tranche Eurocurrency Loan, the margin per annum set forth below opposite the applicable Ratings category in effect on such day:

and (b) any Extended Tranche Loan, (i) in the case of an Extended Tranche Eurocurrency Loan, 4.00% per annum and (ii) in the case of an Extended Tranche ABR Loan, 3.00% per annum.

For purposes of clause (a) of the foregoing:  (i) if the Rating issued by Moody’s and the Rating issued by S&P shall fall within different Pricing Levels (but not more than one (1) Pricing Level apart), then the Applicable Margin shall be determined by reference to the higher Pricing Level ( e.g. , if the Rating issued by S&P is in Pricing Level 1 and the Rating issued by Moody’s is in Pricing Level 2, then the Applicable Margin shall be determined by reference to Pricing Level 1); (ii) if the Rating issued by Moody’s and the Rating issued by S&P shall fall within different Pricing Levels (and by more than one (1) Pricing Level apart), then the Applicable Margin shall be determined by reference to the Pricing Level that is one (1) Pricing Level higher than the lower Pricing Level ( e.g. , if the Rating issued by S&P is in Pricing Level 1 and the Rating issued by Moody’s is in Pricing Level 4, then the Applicable Margin shall be determined by reference to Pricing Level 3); (iii) if either Moody’s or S&P shall not have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this paragraph), then such rating agency shall be deemed to have established a rating in Pricing Level 6; and (iv) if either Moody’s or S&P no longer publishes ratings and the Company and the Administrative Agent cannot agree on another ratings agency to replace Moody’s or S&P, as the case may be, then the Rating issued by Moody’s or the Rating issued by S&P which is still being published, as the case may be, shall be deemed to be the Rating.  If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.

 

 

“ Applicable Percentage ”:  an individual reference to, with respect to the Company, the Company Percentage or, with respect to the Additional Borrower, the Additional Borrower Percentage, but not a collective reference to both the Company Percentage and the Additional Borrower Percentage.

“ Application ”:  in respect of each Letter of Credit issued by an Issuing Bank, an application, in such form as such Issuing Bank may specify from time to time, requesting issuance of such Letter of Credit.

“ Assessment Rate ”:  for any day as applied to any ABR Loan, the annual assessment rate in effect on such day that is payable by a member of the Bank Insurance Fund maintained by the Federal Deposit Insurance Corporation (the “ FDIC ”) and classified as “well-capitalized” and within supervisory subgroup “A” (or a comparable successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any successor provision) to the FDIC (or any successor) for the FDIC’s (or such successor’s) insuring of time deposits made in dollars at the offices of such member in the United States; provided that if, as a result of any change in any law, rule or regulation, it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall be determined by the Administrative Agent to be representative of the cost of such insurance to the Lenders.

“ Asset Prepayment Percentage ”:  with respect to Net Cash Proceeds received after the Restatement Effective Date by or on behalf of the Company, the Additional Borrower or any other Subsidiary in respect of one or more Prepayment Events referred to in clause (a) or (b) of the definition of such term, (i) to the extent such Net Cash Proceeds are received on or prior to the date that is 180 days following the Restatement Effective Date, (x) for the first $20,000,000 of aggregate Net Cash Proceeds received during such period from all such Prepayment Events, 100%, (y) for the next $150,000,000 of aggregate Net Cash Proceeds received during such period from all such Prepayment Events in respect of Dispositions of assets that are determined by the Company in good faith not to be related to core businesses of the Company and its Subsidiaries as conducted on the Restatement Effective Date, 75%, and (z) for all other Net Cash Proceeds received during such period from all such Prepayments Events, 100%; and (ii) to the extent such Net Cash Proceeds are received after the date that is 180 days following the Restatement Effective Date, (x) for the first $50,000,000 of aggregate Net Cash Proceeds received after such date from all such Prepayment Events, 75% and (y) for all subsequent Net Cash Proceeds received after such date from all such Prepayment Events, 100%.

 

 

“ Assignee ”:  as defined in subsection 12.6(c).

“ Assignment and Acceptance ”:  such Assignment and Acceptance, substantially in the form of Exhibit G hereto, executed and delivered pursuant to subsection 12.6(c).

“ Availability ”:  as of any date, the aggregate Commitments as of such date minus Exposure outstanding as of such date; provided , however , that Availability as of any date shall be reduced to the extent that the condition to an Extension of Credit set forth in subsection 7.2(c) cannot be satisfied as of such date.

“ Available Foreign Currencies ”:  euro, Pounds Sterling, Danish Kroner, Japanese Yen, Swedish Krona, Swiss Francs, Hong Kong Dollars, Canadian Dollars, Singapore Dollars, and any other available and freely-convertible foreign currency selected by the Company and approved by the Administrative Agent in the manner described in subsection 12.1(b).

“ Average Exchange Rate ”:  for purposes of subsection 9.1(b) and the definition of “Liquidity Amount”, as of any date for any foreign currency, the arithmetic average of the rates at which such currency shall have been exchangeable into Dollars (determined in accordance with the immediately succeeding sentence) on the last Business Day of each of the 12 calendar months most recently ended on or prior to such date.  For purposes of this definition, the exchange rate for any foreign currency as of any date shall be determined by reference to the applicable Reuters currency page with respect to such currency at or about 11:00 A.M. London time on such date.  In the event that such rate does not appear on the applicable Reuters currency page, the exchange rate with respect to such foreign currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably determined by the Company.

“ Base CD Rate ”:  the sum of (a) the Three-Month Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.

“ Board ”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).

“ Borrower ”:  an individual reference to the Company or the Additional Borrower, but not a collective reference to both the Company and the Additional Borrower.

“ Borrowers ”: a collective reference to both the Company and the Additional Borrower.

“ Borrowing Date ”:  any Business Day on which a Loan is to be made at the request of a Borrower under this Agreement.

“ Business ”:  as defined in subsection 6.17.

“ Business Day ”:  (a) when such term is used in respect of any amounts denominated or to be denominated in (i) any Available Foreign Currency, a London Banking Day which is also a day on which banks are open for general banking business in (x) the city which is the principal financial center of the country of issuance of such Available Foreign Currency, (y) in the case of euro only, Frankfurt am Main, Germany (or such other principal financial center as the Administrative Agent may from time to time nominate for this purpose) and (z) New York City and (ii) Dollars, (x) in the case of a Eurocurrency Loan, any fundings, disbursements, payments and settlements in respect of any such Eurocurrency Loan, or any other dealings to be carried out pursuant to any Loan Document in respect of any such Eurocurrency Loan, a London Banking Day which is also a day other than a Saturday or Sunday on which banks are open for general banking business in New York City, and (y) in the case of an ABR Loan, any fundings, disbursements, payments and settlements in respect of any such Eurocurrency Loan, or any other dealings to be carried out pursuant to any Loan Document in respect of any such ABR Loan, a day other than a Saturday or Sunday on which banks are open for general banking business in New York City, (b) when such term is used for the purpose of determining the date on which the Eurocurrency Rate is determined under this Agreement for any Loan denominated in euro for any Interest Period therefor and for purposes of determining the first and last day of any Interest Period, references in this Agreement to Business Days shall be deemed to be references to Target Operating Days and (c) when such term is used to describe a day on which a request is to be made to an Issuing Bank for issuance of a Letter of Credit or on which a Letter of Credit is to be issued, such term shall mean a day other than a Saturday, Sunday or other day on which commercial banks in the city in which such Issuing Bank’s Issuing Office is located.

 

 

“ Canadian Dollars ”:  the lawful currency of Canada.

“ Capital Expenditures ”: for any period, the additions to property, plant and equipment and other capital expenditures of the Company and the Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the Company for such period prepared in accordance with GAAP, but excluding in each case any such expenditure (i) constituting reinvestment of the Net Cash Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event”, to the extent made in accordance with subsection 2.5(b), (ii) made by the Company or any Subsidiary as payment of the consideration for a Permitted Business Acquisition, (iii) accounted for as a capital expenditure of the Company or any Subsidiary to the extent that such expenses actually are paid for or have been reimbursed by a third party (excluding the Company or any Subsidiary) and for which neither the Company nor any Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period) and (iv) constituting the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (x) used or surplus equipment traded in at the time of such purchase and (y) the proceeds of a concurrent sale of used or surplus equipment, in each case in the ordinary course of business.

“ Capital Lease Obligations ”: the obligations of any Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

 

“ Capital Stock ”:  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.

“ Cash Collateral Account ”: has the meaning set forth in the Collateral Agreement.

“ Cash Equivalents ”:  (a) marketable direct obligations with maturities of one year or less from the date of acquisition issued by or fully guaranteed or insured by (i) the United States Government or any agency or instrumentality thereof or (ii) any member state of the European Union; (b) marketable general obligations issued or fully guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision, agency or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof or any other foreign government or any agency or instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, which are rated at least A- by S&P or A-1 by Moody’s; (c) certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits, bankers’ acceptances and repurchase agreements having maturities of one year or less from the date of acquisition issued, and money market deposit accounts issued or offered, by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or foreign commercial bank of recognized standing having combined capital and surplus of not less than $100,000,000 or any bank (or the parent company of any such bank) whose short-term commercial paper rating from S&P is at least A-1 or from Moody’s is at least P-2 or an equivalent rating from another rating agency; (d) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of investments, and, in either case, maturing within one year from the date of acquisition; (e) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (c) of this definition, having a term of not more than 30 days, with respect to notes or other securities described in clause (a) of this definition; (f) any notes or other debt securities or instruments issued by any Person, (i) the payment and performance of which is premised upon (A) securities issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority of such state, commonwealth or territory or any public instrumentality or agency thereof or any foreign government or (B) loans originated or acquired by any other Person pursuant to a plan or program established by any Governmental Authority that requires the payment of not less than 95% of the outstanding principal amount of such loans to be guaranteed by (1) a specified Governmental Authority or (2) any other Person ( provided that all or substantially all of such guarantee payments made by such Person are contractually required to be reimbursed by any other Governmental Authority), (ii) that are rated at least AAA by S&P and Aaa by Moody’s and (iii) which are disposed of by the Company or any Subsidiary within one (1) year after the date of acquisition thereof; (g) shares of money market, mutual or similar funds that (i) invest in assets satisfying the requirements of clauses (a) through (f) (or any of such clauses) of this definition, and (ii) have portfolio assets of at least $1,000,000,000; (h) any other Investment which constitutes a “cash equivalent” under GAAP as in effect from time to time; and (i) any other notes, securities or other instruments or deposit-based products consented to in writing by the Administrative Agent.

 

 

“ Change of Control ”:  (a) an event or series of related events by which (i) any “person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Investor, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all shares that any such Person has the right to acquire without condition, other than passage of time, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the then outstanding Voting Stock of the Company or (ii) the Company consolidates with or merges into another corporation or conveys, transfers or leases all or substantially all of its properties and assets (determined on a consolidated basis for the Company and its Subsidiaries taken as a whole) to any Person; provided , however , that notwithstanding anything to the contrary in this definition, transfer of beneficial ownership of shares held by the Permitted Investor upon the death of the Permitted Investor to the heirs and devisees of the Permitted Investor shall not constitute a Change of Control; or (b) the occurrence of  a “Fundamental Change” (or similar event, however denominated) as defined in the Convertible Notes Documents or any “change of control” (or similar event, however denominated) with respect to the Company under and as defined in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any Material Indebtedness of the Company or any Subsidiary, in each case which would enable the holders thereof to require the Company to prepay, repurchase, redeem or defease the Convertible Notes or such other Material Indebtedness prior to its scheduled maturity.

“ Charges ”: as defined in subsection 12.18.

“ Class ”: when used in reference to (a) any Loan, refers to whether such Loan is an Original Tranche Loan or Extended Tranche Loan and (b) any Commitment, refers to whether such Commitment is an Original Tranche Commitment or an Extended Tranche Commitment.

“ Code ”:  the Internal Revenue Code of 1986, as amended from time to time.

“ Collateral ”: any and all assets, whether real or personal, tangible or intangible, on which Liens are purported to be granted pursuant to the Collateral Documents as security for the Extended Obligations.

“ Collateral Agreement ”: the Guarantee and Collateral Agreement dated as of March 31, 2009, among the Company, the Additional Borrower, the other Loan Parties and the Administrative Agent, as amended from time to time and together with all supplements thereto.

“ Collateral and Guarantee Requirement ”: at any time, the requirement that:

 

 

 

 

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties if and for so long as the Administrative Agent, in consultation with the Company, determines that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, shall be excessive in view of the benefits to be obtained by the Lenders therefrom.  The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary (including extensions beyond the Restatement Effective Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents.

 

 

Notwithstanding the foregoing, after the Restatement Effective Date, the term “Collateral and Guarantee Requirement” shall not require the creation of any new security interest or the provision of any new guarantee that would violate Section 4.08 of the Convertible Notes Indenture.

“ Collateral Documents ”: the Collateral Agreement, the Foreign Pledge Agreements, the IP Security Agreements, the Mortgages, the Control Agreements and each other agreement, instrument or document executed and delivered by any Loan Party to guarantee or secure any of the Secured Obligations.

“ Commercial Letter of Credit ”:  as defined in subsection 4.1(b).

“ Commitment ”:  an Original Tranche Commitment or an Extended Tranche Commitment, as the context may require.

“ Commitment Percentage ”:  as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have expired or terminated, the percentage which the amount of such Lender’s Exposure then outstanding constitutes of the aggregate amount of the Exposure of all the Lenders then outstanding).

“ Commitment Period ”:  the Original Tranche Commitment Period or the Extended Tranche Commitment Period, as the context may require.

“ Committed Rate Loan ”:  a Loan made pursuant to subsection 2.1(a).

“ Commonly Controlled Entity ”:  any entity (whether or not incorporated) that, together with the Company is treated as a single employer under Section 414(b) or (c) of the Code or, for purposes of Section 412 of the Code and Section 302 of ERISA, Section 414 of the Code.

“ Company Obligations ”:  a collective reference to both the Original Tranche Company Obligations and the Extended Tranche Company Obligations.

“ Company Percentage ”:  as of the Restatement Effective Date, with respect to the Company, 33 ^1/3 %; provided , that upon written notice by the Borrowers to the Administrative Agent, such percentage (a) may be increased and/or decreased from time to time and at any time by the Borrowers, and (b) as of the effective date for any such increase or decrease specified by the Borrowers in the applicable notice thereof, shall be the percentage so specified.

“ Company Reinvestment Percentage ”:  with respect to Net Cash Proceeds received after the Restatement Effective Date by or on behalf of the Company, the Additional Borrower or any other Subsidiary in respect of one or more Prepayment Events referred to in clause (a) or (b) of the definition of such term, (i) to the extent such Net Cash Proceeds are received on or prior to the date that is 180 days following the Restatement Effective Date, (x) for the first $20,000,000 of aggregate Net Cash Proceeds received during such period from all such Prepayment Events, 100%, (y) for the next $150,000,000 of aggregate Net Cash Proceeds received during such period from all such Prepayment Events during in respect of Dispositions of assets that are not core to the business of the Company and its Subsidiaries as conducted on the Restatement Effective Date, 25%, and (z) for all other Net Cash Proceeds received during such period from all such Prepayments Events, 0%; and (ii) to the extent such Net Cash Proceeds are received after the date that is 180 days following the Restatement Effective Date, (x) for the first $50,000,000 of aggregate Net Cash Proceeds received after such date from all such Prepayment Events, 25% and (y) for all subsequent Net Cash Proceeds received after such date from all such Prepayment Events, 0%.

 

 

“ Competitive Advance Loan ”:  as defined in subsection 3.1.

“ Competitive Bid Notice ”:  a notice in substantially the form of Exhibit B hereto.

“ Competitive Bid Request ”:  a notice in substantially the form of Exhibit C hereto.

“ Consolidated Current Assets ”:  at any date, the sum of (i) 70% of the net book value of the accounts receivable of the Company and its Subsidiaries, plus (ii) 35% of the net book value of the inventory of the Company and its Subsidiaries, plus (iii) Unrestricted Cash, in an amount not to exceed $25,000,000, collectively held by the Company and its Subsidiaries in deposit accounts which are subject to perfected Liens securing the Secured Obligations and are maintained by the Company and its Subsidiaries with one or more Extended Tranche Lenders, in each case as shown on a consolidated balance sheet of the Company as of such date and determined in accordance with GAAP.

“ Consolidated EBITDA ”:  for any period, Consolidated Net Income for such period, plus , to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) taxes, (b) interest, (c) amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans), (d) depreciation and amortization, (e) amortization of intangibles (including but not limited to goodwill) and organization costs, (f) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, non-cash losses on Dispositions outside the ordinary course of business), provided that cash expenses or losses added pursuant to this clause (f) shall be limited to restructuring charges in an aggregate amount not to exceed $100,000,000 for any period of four consecutive fiscal quarters, and (g) any other non-cash charges (excluding any non-cash charge that will result in a cash expenditure in a future period), and minus , to the extent included in determining Consolidated Net Income for such period, (i) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of Consolidated Net Income for such period, gains on Dispositions outside of the ordinary course of business) and (ii) any other non-cash items of income for such period (excluding any non-cash items of income in respect of which cash will be received in a future period).

“ Consolidated Net Income ”:  for any period, the net income of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“ Consolidated Total Debt ”:  at any date, without duplication, the aggregate principal amount of all Indebtedness (including the current portion thereof) of the Company and its consolidated Subsidiaries at such date (but excluding (x) any Indebtedness owing by (A) the Company to any Subsidiary and (B) any Subsidiary to the Company or any other Subsidiary and (y) Guarantee Obligations (except to such extent any amounts are due and payable at such date)), determined on a consolidated basis in accordance with GAAP.

 

 

“ Contractual Obligation ”:  as to any Person, any provision of any security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Control Agreement ”: with respect to any deposit account or securities account maintained by any Loan Party, a control agreement in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered by such Loan Party and the depositary bank or the securities intermediary, as the case may be, with which such account is maintained, as amended, supplemented or otherwise modified from time to time.

“ Convertible Notes ”:  the 1.25% Convertible Senior Notes due 2012, issued by the Company on October 23, 2007, and the Indebtedness represented thereby.

“ Convertible Notes Documents ”:   the Convertible Notes Indenture and all other instruments, agreements and other documents evidencing or governing the Convertible Notes or providing for any Guarantee Obligations or other right in respect thereof.

“ Convertible Notes Indenture ”:  the Indenture dated as of October 23, 2007, between the Company, as issuer, and Wells Fargo Bank, National Association, as trustee, under which the Convertible Notes are issued, as amended, supplemented or otherwise modified from time to time in compliance with this Agreement.

“ Currencies ”:  the collective reference to Dollars and the Available Foreign Currencies.

“ Danish Kroner ”:  the lawful currency of Denmark.

“ Default ”:  any event or condition that upon notice, the lapse of time, or both, would constitute an Event of Default.

“ Designated Foreign Subsidiary ”: the Additional Borrower and each Subsidiary organized under the laws of Germany or Canada, provided that Harman Becker Automotive Systems GmbH shall not be a Designated Foreign Subsidiary until such time as it shall be required to meet the Collateral and Guarantee Requirement pursuant to subsection 8.11(b).

“ Disposition ”: as defined in subsection 9.5.

“ Disqualified Stock ”:  Capital Stock that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition: (a) requires the payment of any dividends or distributions (other than dividends or distributions payable solely in shares of Capital Stock that do not constitute Disqualified Stock) prior to the date that is 180 days after the Extended Tranche Termination Date, (b) matures or is mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed date or otherwise, or is convertible or exchangeable at the option of the holder thereof for Indebtedness or Capital Stock (other than Capital Stock that does not constitute Disqualified Stock), in each case prior to the date that is 180 days after the Extended Tranche Termination Date; provided , however , that Capital Stock that would not constitute Disqualified Stock but for terms thereof giving holders thereof the right to require the issuer thereof to redeem or purchase such Capital Stock upon the occurrence of an “asset sale” or a “change of control” shall not constitute a Disqualified Stock if any such requirement becomes operative only after repayment in full of all the Obligations (other than contingent indemnification obligations for which no claim has been made), the cancellation or expiration of all Letters of Credit and the termination of the Commitments.

 

 

“ Dollar Equivalent Amount ”:  with respect to the amount of any Available Foreign Currency on any date, the equivalent amount in Dollars of such amount of Available Foreign Currency, as determined by the Administrative Agent on such date using the Exchange Rate.

“ Dollars ” and “ $ ”:  dollars in lawful currency of the United States of America.

“ Domestic Exposure Cap ”:  $180,000,000.

“ Domestic Loan Party ”: the Company or any other Loan Party that is a Domestic Subsidiary.

“ Domestic Subsidiary ”:  any Subsidiary that is not (x) a Foreign Subsidiary, (y) a Qualified CFC Holding Company (as defined in the Collateral Agreement), or (z) Harman KG Holding, LLC.

“ Dormant Subsidiary ”:  any Subsidiary that engages in no business or operations and owns substantially no assets.

“ EMU ”:  Economic and Monetary Union as contemplated in the Treaty on European Union.

“ EMU Legislation ”:  the legislative measures of the European Council (including European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the euro or otherwise), being in part the implementation of the third stage of EMU.

“ Environmental Laws ”:  any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, judgments, orders, decrees, enforceable requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect, in each case that is applicable to the Company or any of its Subsidiaries.

“ Equity Prepayment Percentage ”:  50%; provided that, for any date on which the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Company then most recently ended for which financial statements have been delivered pursuant to subsection 8.1(a) or (b) is less than 2:00 to 1:00, the “Equity Prepayment Percentage” shall be 0%.

 

 

“ ERISA ”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ euro ”:  the single currency of Participating Member States of the European Union in accordance with the EMU Legislation.

“ Eurocurrency Borrowing ”:  the collective reference to Committed Rate Eurocurrency Loans in any Currency the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

“ Eurocurrency Loan ”:  any Loan bearing interest based upon a Eurocurrency Rate.

“ Eurocurrency Rate ”:  in respect of each Currency, the rate determined as the Eurocurrency Rate for such Currency in the manner set forth in the Administrative Schedule.

“ Event of Default ”:  any of the events specified in Section 10, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

“ Exchange Rate ”:  with respect to any Available Foreign Currency on any date, the rate at which such Available Foreign Currency may be exchanged into Dollars, as set forth on such date on the applicable Reuters currency page with respect to such currency at or about 11:00 A.M. London time on such date.  In the event that such rate does not appear on the applicable Reuters currency page, the “Exchange Rate” with respect to such Available Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Company or, in the absence of such agreement, such “Exchange Rate” shall instead be the Administrative Agent’s spot rate of exchange in the London interbank market or other market where its foreign currency exchange operations in respect of such Available Foreign Currency are then being conducted, at or about 10:00 A.M., local time, at such date for the purchase of Dollars with such Available Foreign Currency, for delivery two Business Days later; provided , that if at the time of any such determination, no such spot rate can reasonably be quoted, the Administrative Agent may in consultation with the Company use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.

“ Excluded Deposit Account ”:  (a) any deposit account the funds in which are used, in the ordinary course of business, primarily for, and do not at any time exceed amounts reasonably required for, the payment of salaries and wages, workers’ compensation and similar expenses, (b) local operating accounts of Foreign Subsidiaries the funds in which are used, in the ordinary course of business, primarily for, and do not at any time exceed amounts reasonably required for, the working capital requirements of such Subsidiaries and (c) other deposit accounts the daily balances in which do not at any time exceed $22,500,000 in aggregate funds for all such accounts).

 

 

“ Excluded Subsidiary ”:  any Designated Foreign Subsidiary (a) that is prohibited by applicable law from guaranteeing the Extended Tranche Obligations, (b) that is an Immaterial Subsidiary or (c) with respect to which the Administrative Agent, in consultation with the Company, has determined that the cost of providing a guarantee shall be excessive in view of the benefits to be obtained by the Extended Tranche Lenders therefrom.

“ Excluded Taxes ”:  with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of a Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which a Borrower is located and (c) in the case of any Lender, any withholding tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party hereto (or designates a new lending office) or is attributable to such Lender’s failure or inability to comply with subsection 5.5(b) except to the extent that such 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 a Borrower with respect to such withholding tax pursuant to subsection 5.5(a), in the case of each of (a), (b) and (c), together with any interest, additions to tax and penalties applicable thereto.

“ Existing Credit Agreement ”: as defined in the recitals hereto.

“ Exposure ”:  at any date, the aggregate amount of the Original Tranche Exposure and the Extended Tranche Exposure.

“ Extended Tranche Additional Borrower Obligations ”:  the unpaid principal of and interest on the Extended Tranche Loans made to the Additional Borrower and all other financial liabilities of the Additional Borrower to the Administrative Agent (other than in respect of Original Tranche Loans) or any Extended Tranche Lender (including, without limitation, interest accruing after the maturity or earlier acceleration of the Extended Tranche Loans to the Additional Borrower and interest accruing on the Extended Tranche Loans at the then-applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Additional Borrower, whether or not a claim for post-filing or post petition interest is allowed or allowable in such proceeding), whether direct or indirect, absolute or contingent, due or become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Extended Tranche Loans made to the Additional Borrower, or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or any Original Tranche Lender) or otherwise.

“ Extended Tranche Commitment ”:  as to any Extended Tranche Lender, the obligation of such Extended Tranche Lender to make and/or acquire participating interests in Extended Tranche Loans and issue and/or acquire participating interests in Letters of Credit hereunder in an aggregate Dollar Equivalent Amount at any one time outstanding not to exceed the amount set forth opposite such Extended Tranche Lender’s name on Schedule I , as such amount may be changed from time to time in accordance with the provisions of this Agreement.

 

 

“ Extended Tranche Commitment Percentage ”:  as to any Extended Tranche Lender at any time, the percentage which such Lender’s Extended Tranche Commitment then constitutes of the aggregate Extended Tranche Commitments (or, at any time after the Extended Tranche Commitments shall have expired or terminated, the percentage which the amount of such Lender’s Extended Tranche Exposure then outstanding constitutes of the aggregate amount of the Extended Tranche Exposure of all the Lenders then outstanding).

“ Extended Tranche Commitment Period ”:  the period from and including the Restatement Effective Date to but not including the Extended Tranche Termination Date or such earlier date on which the Extended Tranche Commitments shall terminate as provided herein.

“ Extended Tranche Committed Rate Loan ”:  a Committed Rate Loan that is an Extended Tranche Loan; an Extended Tranche Committed Rate Loan bearing interest based upon the ABR shall be an “ Extended Tranche Committed Rate ABR Loan ”, and an Extended Tranche Committed Rate Loan bearing interest based upon the Eurocurrency Rate shall be an “ Extended Tranche Committed Rate Eurocurrency Loan ”.

“ Extended Tranche Company Obligations ”:  the unpaid principal of and interest on the Extended Tranche Loans made to the Company, all Reimbursement Obligations in respect of Letters of Credit owing (x) to any Issuing Bank for which such Issuing Bank shall not have been reimbursed by Lenders or (y) to any Extended Tranche Lender in respect of participations acquired by such Extended Tranche Lender in such Reimbursement Obligations, and all other financial liabilities of the Company to the Administrative Agent (other than in respect of Original Tranche Loans), any Issuing Bank (other than in respect of Reimbursement Obligations reimbursed by Lenders) or any Extended Tranche Lender (including, without limitation, interest accruing at the then-applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, whether or not a claim for post-filing or post petition interest is allowed or allowable in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the other Loan Documents, the Extended Tranche Loans made to the Company, the Letters of Credit, or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Administrative Agent, any Issuing Bank or any Extended Tranche Lender) or otherwise.

“ Extended Tranche Exposure ”: at any date, the aggregate Dollar Equivalent Amount of (a) all Extended Tranche Loans then outstanding and (b) the aggregate amount of each Extended Tranche Lender’s Commitment Percentage multiplied by the L/C Obligations then outstanding.

“ Extended Tranche Lender ”:  a Lender that has elected to become an Extended Tranche Lender and to convert its Commitment and its outstanding Loans (each as defined in the Existing Credit Agreement) to an Extended Tranche Commitment and Extended Tranche Loans pursuant to subsection 1.4.

 

 

“ Extended Tranche Loan ”:  any Loan (a) outstanding on the Restatement Effective Date that has been converted into an Extended Tranche Loan pursuant to subsection 1.4 or (b) made by an Extended Tranche Lender after the Restatement Effective Date pursuant to this Agreement.

“ Extended Tranche Obligations ”: the Extended Tranche Company Obligations and the Extended Tranche Additional Borrower Obligations.

“ Extended Tranche Termination Date ”:  December 31, 2011.

“ Extensions of Credit ”:  the collective reference to Loans made and Letters of Credit issued under this Agreement.

“ Facility Fee Rate ”:  for each day during each fiscal quarter of the Company, (a) in respect of any Original Tranche Commitments, the rate per annum set forth below opposite the applicable Ratings category in effect during the immediately preceding fiscal quarter:

and (b) in respect of any Extended Tranche Commitments, 1.00% per annum.

For purposes of clause (a) of the foregoing:  (i) if the Rating issued by Moody’s and the Rating issued by S&P shall fall within different Pricing Levels (but not more than one (1) Pricing Level apart), then the Facility Fee shall be determined by reference to the higher Pricing Level ( e.g. , if the Rating issued by S&P is in Pricing Level 1 and the Rating issued by Moody’s is in Pricing Level 2, then the Facility Fee shall be determined by reference to Pricing Level 1); (ii) if the Rating issued by Moody’s and the Rating issued by S&P shall fall within different Pricing Levels (and by more than one (1) Pricing Level apart), then the Facility Fee shall be determined by reference to the Pricing Level that is one (1) Pricing Level higher than the lower Pricing Level ( e.g. , if the Rating issued by S&P is in Pricing Level 1 and the Rating issued by Moody’s is in Pricing Level 4, then the Facility Fee shall be determined by reference to Pricing Level 3); (iii) if either Moody’s or S&P shall not have in effect a Rating (other than by reason of the circumstances referred to in the last sentence of this paragraph), then such rating agency shall be deemed to have established a rating in Pricing Level 6; and (iv) if either Moody’s or S&P no longer publishes ratings and the Company and the Administrative Agent cannot agree on another ratings agency to replace Moody’s or S&P, as the case may be, then the Rating issued by Moody’s or the Rating issued by S&P which is still being published, as the case may be, shall be deemed to be the Rating.  If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and pending the effectiveness of any such amendment, the Facility Fee shall be determined by reference to the rating most recently in effect prior to such change or cessation.

 

 

“ Federal Funds Effective Rate ”:  for any day, the rate of interest per annum (rounded upwards, if necessary, to the next 1/100 of 1%) of the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Fee Letter ”:  the letter agreement, dated May 13, 2005, among the Company, J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A., as amended by the letter agreement, dated June 22, 2006, among the Company, the Additional Borrower, J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A.

“ First Restatement Effective Date ”:  June 22, 2006.

“ Foreign Loan Party ”: the Additional Borrower or any other Loan Party that is a Foreign Subsidiary.

“ Foreign Pledge Agreement ”: a pledge or charge agreement with respect to Capital Stock in a Foreign Subsidiary in form and substance reasonably satisfactory to the Administrative Agent, as amended, supplemented or otherwise modified from time to time.

“ Foreign Subsidiary ”: (i) any Subsidiary that is not incorporated, formed or organized under the laws of the United States of America, any State thereof, the District of Columbia or any of the territories or possessions of the United States of America or any political subdivision thereof and (ii) any Subsidiary of any Subsidiary described in the foregoing clause (i).

“ Funding Office ”:  for each Class and Type of Loan and each Currency, the Funding Office set forth in respect thereof in the Administrative Schedule.

“ Funding Time ”:  for each Class and Type of Loan and each Currency, the Funding Time set forth in respect thereof in the Administrative Schedule.

“ GAAP ”:  generally accepted accounting principles in the United States of America in effect from time to time.

 

 

“ Governmental Authority ”:  any nation or government, any state or other political subdivision thereof and any entity exercising applicable executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“ Guarantee Obligation ”:  as to any Person, any obligation, contingent or otherwise of such Person guaranteeing any Indebtedness of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including, without limitation, any obligation of the guaranteeing Person (i) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such Indebtedness or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor so as to enable such primary obligor to pay such Indebtedness, (iii) to purchase property, securities or services for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (iv) otherwise to protect the owner of any such Indebtedness against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include (x) any liability by endorsement of instruments for deposit or collection or similar transactions in the ordinary course of business, (y) indemnification obligations of the Company or any of its Subsidiaries entered into in the ordinary course of business or (z) obligations of the Company or any of its Subsidiaries under arrangements entered into in the ordinary course of business whereby the Company or such Subsidiary sells goods or inventory to other Persons under agreements obligating the Company or such Subsidiary to repurchase such goods or inventory, at a price not exceeding the original sale price, upon the occurrence of certain specified events.  The amount of any Guarantee Obligation of any guaranteeing Person at any time shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made at such time and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation at such time, unless such Indebtedness and such maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith at such time; provided , however , that for purposes of this definition the liability of the guaranteeing Person with respect to any obligation as to which a third Person or Persons are jointly or jointly and severally liable as a guarantor or otherwise as contemplated hereby and have not defaulted on its or their portions thereof shall be only as to its pro rata portion of such obligation.

“ Harman International Guarantee ”:  the Guarantee, dated as of June 22, 2006, made by the Company in favor of the Administrative Agent, on behalf of the Lenders, as amended, modified or supplemented from time to time.

“ Hedging Agreement ”:  any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, any similar transaction or any combination of the foregoing transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a Hedging Agreement.

 

 

“ Hong Kong Dollars ”:  the lawful currency of Hong Kong.

“ Immaterial Subsidiary ”:  any Subsidiary for which (a) the consolidated total assets of such Subsidiary constitute less than or equal to $10,000,000 and, collectively with all Immaterial Subsidiaries, less than or equal to 5% of the consolidated total assets of the Company and (b) the consolidated revenues of such Subsidiary constitute less than or equal to 1% of the consolidated revenues of the Company and, collectively with all Immaterial Subsidiaries, less than or equal to 5% of the consolidated revenues of the Company, in each case as of the end of or for the most recent period of four consecutive fiscal quarters of the Company for which financial statements have been delivered pursuant to subsection 8.1(a) or (b).

“ Indebtedness ”:  of any Person at any date, without duplication, all indebtedness of such Person (other than current trade liabilities and indemnification obligations incurred in the ordinary course of business), as reflected on the balance sheet of such Person prepared in accordance with GAAP and all Guarantee Obligations of such Person, except that where such indebtedness or Guarantee Obligation of such Person is made jointly, or jointly and severally, with any third party or parties other than any consolidated Subsidiary of such Person, the amount thereof for the purpose of this definition only shall be the pro rata portion thereof payable by such Person, so long as such third party or parties have not defaulted on its or their joint and several portions thereof.

“ Initial Closing Date ”:  June 28, 2005.

“ Insolvency ”:  with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.

“ Insolvent ”:  pertaining to a condition of Insolvency.

“ Intellectual Property ”:  as defined in subsection 6.9.

“ Interest Payment Date ”:  (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Loan is outstanding, and (x) in the case of an Original Tranche ABR Loan, the Original Tranche Termination Date and (y) in the case of an Extended Tranche ABR Loan, the Extended Tranche Termination Date, (b) as to any Committed Rate Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Committed Rate Eurocurrency Loan having an Interest Period longer than three months, each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Competitive Advance Loan, the date or dates agreed upon by the Company and the Lender at the time the terms of such Competitive Advance Loan are determined as provided in Section 3.

“ Interest Period ”:  with respect to any Committed Rate Eurocurrency Loan:

 

 

provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:

“ Investments ” has the meaning specified in subsection 9.7.

“ IP Security Agreements ”: has the meaning assigned to such term in the Collateral Agreement.

“ ISP ”:  the “International Standby Practices 1998” as published by the Institute of International Banking Law and Practice (or such later version thereof as may be in effect from time to time).

“ Issuing Bank ”:  each Lender listed as an Issuing Bank in Schedule IV.

“ Issuing Office ”:  in respect of each Issuing Bank, the Issuing Office set forth for such Issuing Bank in Schedule IV.

 

 

“ Japanese Yen ”:  the lawful currency of Japan.

“ JPMorgan Chase ”:  JPMorgan Chase Bank, N.A.

“ Judgment Currency ”:  as defined in subsection 12.8(b).

“ L/C Cash Account ”:  a cash collateral account established at the office of an Issuing Bank specified by such Issuing Bank to the Company, in the name of such Issuing Bank, established for the purposes of subsection 4.10.

“ L/C Obligations ”:  at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit, (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to subsection 4.5(a) and (c) the face amount of each outstanding and accepted Time Draft.

“ L/C Participant ”:  in respect of each Letter of Credit, each Lender (other than the Issuing Bank in respect of such Letter of Credit) in its capacity as the holder of a participating interest in such Letter of Credit.

“ Letter of Credit ”:  as defined in subsection 4.1(b)(i).

“ Lien ”:  any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), title defect, charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement).

“ Liquidity Amount ”:  as of any date, the sum of (x) the aggregate Dollar amount of Unrestricted Cash collectively held by the Company and its Subsidiaries as of such date plus (y) Availability as of such date; provided that for purposes of calculating the Liquidity Amount as of any date,  the amount in Dollars of any foreign currency included in the Liquidity Amount shall be determined using the Average Exchange Rate as of such date for such foreign currency.

“ Loan ”:  any Committed Rate Loan or Competitive Advance Loan made by any Lender pursuant to this Agreement.

“ Loan Documents ”: this Agreement, each Application, the Harman International Guarantee, the Collateral Agreement and the other Collateral Documents.

“ Loan Parties ”:  the Company, the Additional Borrower and each Subsidiary Loan Party.

“ London Banking Day ”:  any day on which banks in London are open for general banking business, including dealings in foreign currency and exchange.

“ Majority Extended Tranche Lenders ”: as of any date of determination, Extended Tranche Lenders the Extended Tranche Commitments of which aggregate more than 50% of the aggregate Extended Tranche Commitments as of such date, or, if the Extended Tranche Commitments have expired or terminated, Extended Tranche Lenders the Extended Tranche Exposure of which aggregates more than 50% of the aggregate Extended Tranche Exposure as of such date.

 

 

“ Majority Lenders ”:  at any time, Lenders the Commitment Percentages of which aggregate more than 50%.

“ Material Adverse Effect ”:  a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole or (b) the validity or enforceability of this or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.

“ Material Indebtedness ”:  Indebtedness (other than Indebtedness under the Loan Documents), or, solely for purposes of clause (e) of Section 10, obligations in respect of one or more Hedging Agreements, of any one or more of the Company and its Subsidiaries in an aggregate principal amount of $30,000,000 or more.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Company or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

“ Materials of Environmental Concern ”:  any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

“ Maximum Rate ”: as defined in subsection 12.18.

“ Moody’s ”:  means Moody’s Investors Services, Inc., or any successor or assignee of the business of such company in the business of rating debt.

“ Mortgage ”: a mortgage, deed of trust, assignment of leases and rents or other Collateral Document granting a Lien on any Mortgaged Property of any Domestic Loan Party to secure the Secured Obligations, as amended, supplemented or otherwise modified from time to time.  Each Mortgage shall be reasonably satisfactory in form and substance to the Administrative Agent.

“ Mortgaged Property ”: each parcel of real property owned in fee by a Loan Party, and the improvements thereto, that has a book or fair market value, as determined in good faith by the Company, of $5,000,000 (or $7,500,000 in the case of any real property located in Canada) or more.

“ Multiemployer Plan ”:  a plan which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

 

 

“ Net Cash Proceeds ”:  with respect to any event (a) the cash proceeds (including, in the case of any casualty, condemnation or similar proceeding, insurance, condemnation or similar proceeds) received in respect of such event including any cash received in respect of any non-cash proceeds, but only as and when received, net of (b) the sum, without duplication, of (i) all reasonable fees and out-of-pocket expenses paid in connection with such event by the Company and the Subsidiaries to Persons that are not Affiliates of the Company or any Subsidiary, (ii) in the case of a Disposition (including pursuant to a Sale and Leaseback Transaction or a casualty or a condemnation or similar proceeding) of an asset, the amount of all payments required to be made by the Company and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by such asset, (iii) the amount of all taxes paid (or reasonably estimated to be payable) by the Company and the Subsidiaries, and the amount of any reserves established by the Company and the Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Responsible Officer of the Company) and (iv) in case of any such event occurring in a jurisdiction other than the United States or Germany, the amount of all taxes paid (or reasonably estimated to be payable) by the Company and the Subsidiaries that are directly attributable to the repatriation of such cash proceeds into the United States or Germany, but only to the extent the Company and the Subsidiaries have used commercially reasonable efforts to reduce or eliminate such taxes, including by electing to prepay Loans in such a manner that would result in the lowest possible amount of such taxes.

“ New York UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York.

“ Non-Excluded Taxes ”:  as defined in subsection 5.5(a).

“ Non-U.S. Lender ”:  as defined in subsection 5.5(b).

“ Notice of Borrowing ”:  with respect to a Loan of any Type in any Currency, a notice in substantially the form of Exhibit D hereto from the applicable Borrower of such Loan in respect of such Loan, containing the information in respect of such Loan and delivered to the Person, in the manner and by the time specified for a Notice of Borrowing in respect of such Currency and such Type of Loan in the Administrative Schedule.

“ Notice of Competitive Advance Loan ”:  with respect to each Competitive Advance Loan in any Currency, a notice from the Lender in respect of such Loan in substantially the form of Exhibit E hereto, containing the information in respect of such Loan and delivered to the Person, in the manner and by the time specified for a Notice of Competitive Advance Loan in the Administrative Schedule.

“ Notice of Continuation ”:  with respect to a Committed Rate Loan in any Currency, a notice in substantially the form of Exhibit F hereto from the applicable Borrower of such Loan in respect of such Loan, containing the information in respect of such Loan and delivered to the Person, in the manner and by the time specified for a Notice of Continuation in respect of such Currency in the Administrative Schedule.

“ Notice of Conversion ”:  with respect to a Committed Rate Loan in Dollars which the applicable Borrower of such Loan wishes to convert from a Eurocurrency Loan to an ABR Loan, or from an ABR Loan to a Eurocurrency Loan, as the case may be, a notice in substantially the form of Exhibit F hereto from the applicable Borrower of such Loan setting forth the amount of such Loan to be converted, the date of such conversion (which, in the case of conversions of Eurocurrency Loans to ABR Loans, shall be the last day of an Interest Period applicable to such Eurocurrency Loans) and, in the case of conversions of ABR Loans to Eurocurrency Loans, the length of the initial Interest Period applicable thereto.  Each Notice of Conversion shall be delivered to the Administrative Agent at its address set forth in subsection 12.2 and shall be delivered before 11:00 A.M., New York City time, one Business Day before the requested conversion in the case of conversions to ABR Loans, and before 11:00 A.M., New York City time, three Business Days before the requested conversion in the case of conversions to Eurocurrency Loans.

 

 

“ Obligations ”:  the Extended Tranche Obligations and the Original Tranche Obligations.

“ Original Tranche Additional Borrower Obligations ”:  the unpaid principal of and interest on the Original Tranche Loans made to the Additional Borrower and all other financial liabilities of the Additional Borrower to the Administrative Agent in respect of Original Tranche Loans or any Original Tranche Lender (including, without limitation, interest accruing after the maturity or earlier acceleration of the Original Tranche Loans to the Additional Borrower and interest accruing on the Original Tranche Loans at the then-applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Additional Borrower, whether or not a claim for post-filing or post petition interest is allowed or allowable in such proceeding), whether direct or indirect, absolute or contingent, due or become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Original Tranche Loans made to the Additional Borrower, or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, indemnities, cost, expenses (including, without limitation, all fees and disbursements of counsel to any Original Tranche Lender) or otherwise.

“ Original Tranche Commitment ”:  as to any Original Tranche Lender, the obligation of such Original Tranche Lender to make and/or acquire participating interests in Original Tranche Loans and/or acquire participating interests in Letters of Credit hereunder in an aggregate Dollar Equivalent Amount at any one time outstanding not to exceed the amount set forth opposite such Original Tranche Lender’s name on Schedule I , as such amount may be changed from time to time in accordance with the provisions of this Agreement.

“ Original Tranche Commitment Percentage ”:  as to any Original Tranche Lender at any time, the percentage which such Lender’s Original Tranche Commitment then constitutes of the aggregate Original Tranche Commitments (or, at any time after the Original Tranche Commitments shall have expired or terminated, the percentage which the amount of such Lender’s Original Tranche Exposure then outstanding constitutes of the aggregate amount of the Original Tranche Exposure of all the Lenders then outstanding).

“ Original Tranche Commitment Period ”:  the period from and including the First Restatement Effective Date to but not including the Original Tranche Termination Date or such earlier date on which the Original Tranche Commitments shall terminate as provided herein.

“ Original Tranche Committed Rate Loan ”:  a Committed Rate Loan that is an Original Tranche Loan; an Original Tranche Committed Rate Loan bearing interest based upon the ABR shall be an “ Original Tranche Committed Rate ABR Loan ”, and an Original Tranche Committed Rate Loan bearing interest based upon the Eurocurrency Rate shall be an “ Original Tranche Committed Rate Eurocurrency Loan ”.

 

 

“ Original Tranche Company Obligations ”:  the unpaid principal of and interest on the Original Tranche Loans made to the Company, all Reimbursement Obligations in respect of Letters of Credit or participations therein that do not constitute Extended Tranche Company Obligations and all other financial liabilities of the Company to the Administrative Agent, any Issuing Bank or any Original Tranche Lender that do not constitute Extended Tranche Company Obligations (including, without limitation, interest accruing at the then-applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, whether or not a claim for post-filing or post petition interest is allowed or allowable in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the Original Tranche Loans made to the Company, the Letters of Credit or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to any Original Tranche Lender) or otherwise.

“ Original Tranche Exposure ”: at any date, the aggregate Dollar Equivalent Amount of (a) all Original Tranche Loans then outstanding and (b) the aggregate amount of each Original Tranche Lender’s Commitment Percentage multiplied by the L/C Obligations then outstanding.

“ Original Tranche Lender ”: a Lender that has not elected to become an Extended Tranche Lender and to convert its Commitment and its outstanding Loans (each as defined in the Existing Credit Agreement) to an Extended Tranche Commitment and Extended Tranche Loans pursuant to subsection 1.4.

“ Original Tranche Loan ”:  any Loan (a) outstanding on the Restatement Effective Date that has not been converted into an Extended Tranche Loan pursuant to subsection 1.4 or (b) made by any Original Tranche Lender after the Restatement Effective Date pursuant to this Agreement.

“ Original Tranche Obligations ”: the Original Tranche Company Obligations and the Original Tranche Additional Borrower Obligations.

“ Original Tranche Termination Date ”:  June 28, 2010.

“ Participant ”:  as defined in subsection 12.6(b).

“ Participating Member States ”:  each country that adopts or has adopted the euro as its currency in accordance with EMU Legislation.

“ Payment Office ”:  for each Class and Type of Loan and each Currency, the Payment Office set forth in respect thereof in the Administrative Schedule.

 

 

“ Payment Time ”:  for each Class and Type of Loan and each Currency, the Payment Time set forth in respect thereof in the Administrative Schedule.

“ PBGC ”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.

“ Perfection Certificate ”:  as defined in the Collateral Agreement.

“ Permitted Business Acquisitions ”:  Acquisitions pursuant to which :  (i) no Default or Event of Default shall have occurred and be continuing after giving effect to such Acquisition, (ii) such Acquisition shall be consummated in accordance with applicable laws, (iii) 50% of the outstanding Capital Stock or other ownership interests of any acquired or newly formed Person must be owned directly by the Company or a Subsidiary and such Person shall become a Subsidiary hereunder, (iv) the consideration paid therefor consists solely of common stock of the Company (and shall not include any assumption of Indebtedness), and the aggregate consideration paid therefor, together with the aggregate consideration paid for any other such purchase or acquisition consummated after the Restatement Effective Date in reliance on subsection 9.7(d) (including, in each case, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment but excluding earnout or similar payments) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing acquisition consideration)) shall not exceed $50,000,000, provided that the limitations of this clause (iv) shall not apply to any payment of consideration constituting reinvestment of the Net Cash Proceeds of any event described in clause (a) or (b) of the definition of the term “Prepayment Event” to the extent permitted by subsection 2.5(b), and (v) the Company shall be in compliance, on a pro forma basis, with the financial covenants contained in subsection 9.1 recomputed as at the last day of the most recently ended fiscal quarter of the Company, and the Company shall have delivered to the Administrative Agent an officers’ certificate to such effect.

“ Permitted Investment Amount ”:  (i) in the case of Investments in Foreign Subsidiaries which are not Loan Parties but the Capital Stock of which has been pledged to secure the applicable Secured Obligations, $50,000,000 at any time outstanding, and (ii) in the case of Investments in Subsidiaries which are not Loan Parties, $25,000,000 at any time outstanding.

“ Permitted Investor ”:  Sidney Harman, Executive Chairman and Chairman of the Board of Directors of the Company on the Initial Closing Date.

“ Person ”:  an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“ Plan ”:  at a particular time, any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Pounds Sterling ”:  British Pounds Sterling, the lawful currency of the United Kingdom.

 

 

“ Prepayment Event ”:

“ Prime Rate ”:  the rate of interest per annum publicly announced from time to time by JPMorgan Chase as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“ Properties ”:  as defined in subsection 6.17(a).

“ Quotation Day ”:  in respect of the determination of the Eurocurrency Rate for any Interest Period for loans in any Available Foreign Currency (other than the euro), the day which is (i) at least two London Banking Days prior to the first day of such Interest Period and (ii) a day on which banks are open for general banking business in the city which is the principal financial center of the country of such Available Foreign Currency; and the Quotation Day in respect of any Interest Period for the euro is the day which is two Target Operating Days prior to the first day of such Interest Period.

“ Ratings ”:  the actual senior long-term unsecured non-credit enhanced debt ratings of the Company in effect from time to time by Moody’s or S&P, as the case may be.

“ Register ”:  as defined in subsection 12.6(d).

“ Regulation U ”:  Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

 

 

“ Reimbursement Obligation ”:  in respect of each Letter of Credit, the obligation of the account party thereunder to reimburse the Issuing Bank for all drawings made thereunder in accordance with Section 5 and the Application related to such Letter of Credit.

“ Reorganization ”:  with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

“ Reportable Event ”:  any of the events set forth in Section 4043 of ERISA or in the regulations thereunder with regard to a Plan (excluding those events as to which the thirty (30) day notice period is waived).

“ Requirement of Law ”:  as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any material law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“ Responsible Officer ”:  the chief executive officer, the president, or the chief financial officer of the Company or the Additional Borrower, as the context may require.

“ Restatement Effective Date ”:  the date on which the conditions precedent set forth in subsection 7.1 shall be satisfied, which date is March 31, 2009.

“ Restricted Payments ”:  has the meaning specified in subsection 9.6.

“ S&P ”:  Standard and Poor’s Ratings Group, a division of McGraw Hill, Inc. or any successor or assignee of the business of such division in the business of rating debt.

“ Sale and Lease-Back Transaction ”:  as defined in subsection 9.9.

“ Schedule Amendment ”:  each Schedule Amendment, substantially in the form of Exhibit A hereto, executed and delivered pursuant to subsection 12.1.

“ Secured Funded Debt ”:  as of any date, the sum of (i) the aggregate Exposure outstanding as of such date and (y) the aggregate principal amount of Secured Other Facility Obligations (as defined in the Collateral Agreement) outstanding as of such date.

“ Secured Obligations ”: has the meaning set forth in the Collateral Agreement.

“ Secured Parties ”: has the meaning set forth in the Collateral Agreement.

“ Singapore Dollars ”:  the lawful currency of Singapore.

“ Standby Letter of Credit ”:  as defined in subsection 4.1(b).

 

 

“ Statutory Reserve Rate ”:  a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over $100,000 with maturities approximately equal to three months and (b) with respect to the Adjusted Eurocurrency Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“ Subordinated Debt ”:  any unsecured Indebtedness of the Company or any other Loan Party (other than Indebtedness outstanding on the Restatement Effective Date and described on Schedule 9.2) no part of the principal of which is required to be paid (whether by way of mandatory sinking fund, mandatory redemption or mandatory prepayment or otherwise) prior to the 180th day following the Extended Tranche Termination Date and which is subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent.

“ Subsidiary ”:  as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.

“ Subsidiary Loan Party ”: each Subsidiary that is, or is required under the terms of this Agreement to become, a party to any Collateral Document.  Unless the context requires otherwise, the term “Subsidiary Loan Party” shall include the Additional Borrower.

“ Swedish Krona ”:  the lawful currency of Sweden.

“ Swiss Francs ”:  the lawful currency of Switzerland.

“ Target Operating Day ”:  any day that is not (a) a Saturday or Sunday, (b) Christmas Day or New Year’s Day or (c) any other day on which the Trans-European Real-time Gross Settlement Operating System (or any successor settlement system) is not operating (as determined by the Administrative Agent).

“ Tax Confirmation ”:  as defined in subsection 5.9(a).

“ Three-Month Secondary CD Rate ”:  for any day, the secondary market rate for three-month certificates of deposit reported as being in effect on such day (or, if such day is not a Business Day, the next preceding Business Day) by the Board through the public information telephone line of the Federal Reserve Bank of New York (which rate will, under the current practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the week following such day) or, if such rate is not so reported on such day or such next preceding Business Day, the average of the secondary market quotations for three-month certificates of deposit of major money center banks in New York City received at approximately 10:00 a.m., New York City time, on such day (or, if such day is not a Business Day, on the next preceding Business Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized standing selected by it.

 

 

“ Time Draft ”:  as defined in subsection 4.9.

“ Transferee ”:  as defined in subsection 12.6(f).

“ Treaty on European Union ”:  the Treaty of Rome of March 25, 1957, as amended by the Single European Act of 1986 and the Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into effect on November 1, 1993), as amended from time to time.

“ Type ”:  in respect of any Loan, its character as a Committed Rate Loan or Competitive Advance Loan, as the case may be.

“ Uniform Customs ”:  the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, as the same may be amended, supplemented or otherwise modified from time to time.

“ Unrestricted Cash ”: as of any date, unrestricted cash and Cash Equivalents owned by the Company or any Subsidiary and reflected on the consolidated balance sheet of the Company as of such date and not controlled by or subject to any Lien in favor of any creditor (other than Liens created under the Loan Documents and Liens permitted under clause (p) of subsection 9.3), provided that the term “Unrestricted Cash” shall not include cash and Cash Equivalents held in one or more Cash Collateral Accounts pending reinvestment pursuant to subsection 2.5(b); provided , further that the term “Unrestricted Cash” shall include all funds held in any L/C Cash Account.

“ Value ”:  with respect to any Sale and Lease-Back Transaction, as of any particular time, an amount equal to (a) the fair market value of such property at the time of entering into such Sale and Lease-Back Transaction, as determined in good faith by the Company, (b) divided first by the number of full years of the term of the lease relating to such Sale and Lease-Back Transaction, and (c) then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease.

“ Voting Stock ”:  stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of the Company (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

“ Wholly Owned Subsidiary ”:  with respect to any Person, a Subsidiary of such Person, all of the Capital Stock of which (other than directors’ qualifying shares or nominee or other similar shares that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another Wholly Owned Subsidiary of such Person or any combination thereof.

 

 

1.2.            Other Definitional Provisions .  (a)  Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto.

(b)           As used herein and in any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP(but without giving effect to any election under Statement of Financial Accounting Standards 159 to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein).

(c)           The words “hereof’, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.  References to Schedules to this Agreement are references to such Schedules as the same may from time to time be amended or otherwise modified in accordance with the terms hereof.

(d)           The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

1.3.            Classification of Loans .  For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , an “Extended Tranche Loan”), by Type ( e.g. , a “Committed Rate Loan”), by applicable interest rate ( e.g. , a “Eurocurrency Loan”),  by Class and applicable interest rate ( e.g. , an “Extended Tranche Eurocurrency Loan”), by Type and applicable interest rate ( e.g. , a “Committed Rate Eurocurrency Loan”), by Class and Type ( e.g. , an “Extended Tranche Committed Rate Loan”) or by Class, Type and applicable interest rate ( e.g. , an “Extended Tranche Committed Rate Eurocurrency Loan”).

1.4.            Restatement Effective Date Tranche Elections .  Each Lender shall have the right, by notice delivered to the Administrative Agent on or prior to the Restatement Effective Date, to make an irrevocable election to become an Extended Tranche Lender and to convert its Commitment and its outstanding Loans (each as defined in the Existing Credit Agreement) to an Extended Tranche Commitment and Extended Tranche Loans.  By delivering a notice of such conversion, a Lender will be deemed for all purposes to agree that the provisions of this Agreement applicable to Extended Tranche Lenders will apply to such Lender and its successors and assigns, and that the provisions of this Agreement applicable to Extended Tranche Commitments and Extended Tranche Loans, including  the Extended Tranche Termination Date, will be applicable to its Commitment and its Loans.  Any Lender that shall not so elect on or prior to the Restatement Effective Date to become an Extended Tranche Lender shall for the remaining term of this Agreement be an Original Tranche Lender, with the result that the provisions of this Agreement applicable to Original Tranche Lenders will apply to such Lender and its successors and assigns and the provisions of this Agreement applicable to Original Tranche Commitments and Original Tranche Loans, including  the Original Tranche Termination Date, will be applicable to its Commitment and its Loans.

 

 

SECTION 2

THE COMMITTED RATE LOANS

2.1.            Committed Rate Loans .  (a)  Subject to the terms and conditions hereof,

(b)           The Committed Rate Loans may be made in Dollars or any Available Foreign Currency and may from time to time be (i) Committed Rate Eurocurrency Loans, (ii) in the case of Committed Rate Loans in Dollars only, Committed Rate ABR Loans or (iii) a combination thereof, as determined by the applicable Borrower thereof and set forth in the Notice of Borrowing or Notice of Conversion with respect thereto; provided , that (x) so long as any Original Tranche Commitments remain in effect, no Committed Rate Eurocurrency Loan shall be made during the period beginning on the date that is one month prior to the Original Tranche Termination Date and ending on the Original Tranche Termination Date and (y) no Extended Tranche Committed Rate Eurocurrency Loan shall be made after the day that is one month prior to the Extended Tranche Termination Date.

 

 

2.2.            Procedure for Committed Rate Loan Borrowing .  Each Borrower may request the Lenders to make Committed Rate Loans to such Borrower on any Business Day during the applicable Commitment Period by delivering a Notice of Borrowing.  Each borrowing of Committed Rate Loans shall be in an amount equal to (a) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate undrawn amount of the Commitments is less than $1,000,000, such lesser amount) and (b) in the case of Eurocurrency Loans, (i) if in Dollars, $2,000,000 or increments of $500,000 thereafter, and (ii) if in any Available Foreign Currency, an amount in such Available Foreign Currency of which the Dollar Equivalent Amount is at least $2,000,000.  Upon receipt of any such Notice of Borrowing from a Borrower, the Administrative Agent shall promptly notify each Lender thereof.  Subject to the terms and conditions hereof, each Lender will make the amount of its pro rata share of each such borrowing available to the Administrative Agent for the account of the applicable Borrower requesting such Loan at the Funding Office, and at or prior to the Funding Time, for the Currency of such Loan in funds immediately available to the Administrative Agent; provided , that each Lender has the option of making any portion of each such borrowing available to the Administrative Agent through a branch or affiliate of such Lender.  Such borrowing will then be made available to the applicable Borrower requesting such Loan at the Funding Office, in like funds as received by the Administrative Agent.

2.3.            Repayment of Committed Rate Loans; Evidence of Debt .  (a)  Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Original Tranche Lender on the Original Tranche Termination Date (or such earlier date on which the Original Tranche Loans become due and payable pursuant to Section 10), the then unpaid principal amount of each Original Tranche Committed Rate Loan made by such Original Tranche Lender to such Borrower.  Each Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Extended Tranche Lender on the Extended Tranche Termination Date (or such earlier date on which the Extended Tranche Loans become due and payable pursuant to Section 10), the then unpaid principal amount of each Extended Tranche Committed Rate Loan made by such Extended Tranche Lender to such Borrower.  Except as provided above in this subsection, each repayment of Committed Rate Loans made by a Borrower pursuant to this subsection shall be made ratably between the two Classes of Committed Rate Loans (it being understood that nothing herein shall prohibit or limit the application of proceeds realized from the exercise of remedies under any Collateral Document solely to the Loans of and other obligations owed to the Extended Tranche Lenders).  Each Borrower hereby further agrees to pay interest on the unpaid principal amount of the Committed Rate Loans made to such Borrower from time to time outstanding from the Initial Closing Date (with respect to the Company) or the First Restatement Effective Date (with respect to the Additional Borrower), as applicable, until payment in full thereof at the rates per annum, and on the dates, set forth in subsection 2.8.

(b)           Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of each Borrower to such Lender resulting from each Committed Rate Loan of such Lender to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender by such Borrower from time to time under this Agreement.

 

 

(c)           The Administrative Agent shall maintain the Register pursuant to subsection 12.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Committed Rate Loan made hereunder, the Class of each such Committed Rate Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the applicable Borrower to each Lender under the applicable Committed Rate Loans and (iii) the amount of any sum received by the Administrative Agent from each Borrower in respect of the applicable Committed Rate Loans made to such Borrower, and the amount of each Lender’s share thereof.

(d)           The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 2.3(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the applicable Borrower therein recorded; provided , however , that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the applicable Borrower to repay (with applicable interest) the Committed Rate Loans made to such Borrower by such Lender in accordance with the terms of this Agreement.

2.4.            Termination or Reduction of Commitments .  (a) The Borrowers shall have the right, upon not less than four Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments; provided , that so long as any Original Tranche Commitments shall be in effect, the Borrowers shall not terminate or reduce the Commitments of either Class unless they shall simultaneously ratably reduce the Commitments of the other Class.  Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce permanently the Commitments then in effect.

(b)           In the event and on each occasion that any Net Cash Proceeds received by or on behalf of the Company, the Additional Borrower or any other Subsidiary in respect of any Prepayment Event are required to be applied to prepay the Loans pursuant to subsection 2.5(b) or (c), the Commitments then in effect shall be reduced permanently, on the day such prepayment of the Loans is required pursuant to subsection 2.5(b) or (c), in an aggregate amount equal to the amount of such required prepayment.  Any such reduction of Commitments shall be made ratably between the Classes of Commitments.

(c)           On the Restatement Effective Date, the aggregate Extended Tranche Commitments of the Extended Tranche Lenders shall be reduced permanently in an aggregate amount equal to $30,000,000.  Such reduction of Extended Tranche Commitments shall be made ratably among the Extended Tranche Lenders according to the respective Extended Tranche Commitment Percentages of the Extended Tranche Lenders.

2.5.            Prepayments .  i)  Each Borrower may, at any time and from time to time, prepay the Committed Rate Loans made to such Borrower, in whole or in part, without premium or penalty, upon at least four Business Days’ irrevocable notice to the Administrative Agent.  Each notice pursuant to the preceding sentence shall specify the date and amount of the applicable prepayment, the Currency of the Committed Rate Loans to be prepaid and whether the prepayment is of Eurocurrency Loans, ABR Loans (in the case of Committed Rate Loans in Dollars) or a combination thereof, and, if of a combination thereof, the amount allocable to each.  Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to subsection 5.6.  Partial prepayments shall be in an aggregate principal amount of at least $1,000,000.

 

 

(b)           In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Company, the Additional Borrower or any other Subsidiary in respect of any Prepayment Event referred to in clause (a) or (b) of the definition of such term, the Company shall, within five Business Days of the day such Net Cash Proceeds are received, prepay Committed Rate Loans in an aggregate amount equal to the Asset Prepayment Percentage of such Net Cash Proceeds; provided that if the Company shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Company intends to cause the Net Cash Proceeds from such event (or a portion thereof specified in such certificate) to be reinvested by the Company or any Subsidiary in assets or property useful to the business of the Company or any Subsidiary, or to consummate any Permitted Business Acquisition permitted hereunder, in each case within 180 days (or, in the case of any Prepayment Event referred to in clause (b) of the definition of such term and so long as the Company or any Subsidiary shall be diligently proceeding with the reparation, restoration or replacement of the asset in respect of which such Net Cash Proceeds shall have been received, 365 days or such longer period as the Administrative Agent may agree to be necessary to repair, restore or replace such asset) following receipt of such Net Cash Proceeds, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Proceeds from such event (or the portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so applied by the end of such 180 day period (or, in the case of any Prepayment Event referred to in clause (b) of the definition of such term, such longer period referred to above), at which time a prepayment shall be required in an amount equal to the Net Cash Proceeds that have not been so applied; provided further , however , that (A) the Company shall not be permitted to make elections pursuant to the immediately preceding proviso with respect to Net Cash Proceeds in excess of an aggregate amount equal to the Company Reinvestment Percentage of such Net Cash Proceeds, (B) to the extent any such Net Cash Proceeds shall be received in respect of assets owned by a Loan Party, such Net Cash Proceeds may be reinvested only in assets owned by a Loan Party, or, in the case of a Permitted Business Acquisition, any Person that shall become a Loan Party upon the consummation thereof, or in any other Subsidiary to the extent permitted by subsection 9.7(f), (C) to the extent any such Net Cash Proceeds shall be received in respect of assets owned by a Subsidiary that is not a Loan Party but the Capital Stock of which constitutes Collateral, such Net Cash Proceeds may be reinvested only in assets owned by a Loan Party (including Capital Stock) or assets owned by a Subsidiary the Capital Stock of which constitutes Collateral, or in any other Subsidiary to the extent permitted by subsection 9.7(f), and (D) pending the reinvestment of, or the prepayment of Loans with, any Net Cash Proceeds under this subsection, such Net Cash Proceeds shall be held in one or more Cash Collateral Accounts.

(c)           In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of the Company, the Additional Borrower or any other Subsidiary in respect of any Prepayment Event referred to in clause (c) or (d) of the definition of such term, the Company shall, on the day such Net Cash Proceeds are received, prepay Committed Rate Loans in an aggregate amount equal to (x) in the case of any Prepayment Event referred to in clause (c) of the definition of such term, the Equity Prepayment Percentage of such Net Cash Proceeds and (y) in the case of any Prepayment Event referred to in clause (d) of the definition of such term, 100% of such Net Cash Proceeds.

 

 

(d)           Notwithstanding the foregoing, so long as any Original Tranche Loans shall be outstanding, the Borrowers shall not prepay the Loans of either Class under this Section unless they shall simultaneously ratably prepay the corresponding Loans of the other Class.

2.6.            Conversion and Continuation Options .  (a)  By giving a Notice of Conversion, each Borrower may elect from time to time (i) to convert such Borrower’s Eurocurrency Loans in Dollars to ABR Loans or (ii) to convert such Borrower’s ABR Loans to Eurocurrency Loans in Dollars; provided , that any such conversion of Eurocurrency Loans may only be made on the last day of an Interest Period with respect thereto.  Upon receipt of any Notice of Conversion the Administrative Agent shall promptly notify each Lender thereof.  All or any part of Eurocurrency Loans outstanding in Dollars or ABR Loans may be converted as provided in herein, provided that (i) no ABR Loan may be converted into a Eurocurrency Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Lenders have determined that such a conversion is not appropriate, (ii) so long as any Original Tranche Loans remain outstanding, no Committed Rate ABR Loan may be converted into a Committed Rate Eurocurrency Loan during the period beginning on the date that is one month prior to the Original Tranche Termination Date and ending on the Original Tranche Termination Date and (iii) no Extended Tranche ABR Loan may be converted into an Extended Tranche Eurocurrency Loan after the date that is one month prior to the Extended Tranche Termination Date.

(b)           By giving a Notice of Continuation, each Borrower may continue any of its Eurocurrency Loans as Eurocurrency Loans in the same Currency for additional Interest Periods.

(c)           Each Borrower may convert Committed Rate Loans outstanding in one Currency to Committed Rate Loans of a different Currency by repaying such Loans in the first Currency and borrowing Loans of such different Currency in accordance with the applicable provisions of this Agreement.

(d)           If a Borrower shall fail to timely give a Notice of Continuation or a Notice of Conversion in respect of any of such Borrower’s Eurocurrency Loans with respect to which an Interest Period is expiring, such Eurocurrency Loans shall become due and payable on the last day of such expiring Interest Period; provided , that the Company may, in accordance with and subject to the terms and conditions of this Agreement, refinance such maturing Eurocurrency Loans on such maturity date with Competitive Advance Loans.

(e)           Notwithstanding the foregoing, so long as any Original Tranche Loans shall be outstanding, the Borrowers shall not convert Loans of either Class under this Section unless they shall simultaneously ratably convert the corresponding Loans of the other Class.

 

 

2.7.            Minimum Amounts of Tranches .  All borrowings, conversions and continuations of Committed Rate Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising (i) each Eurocurrency Borrowing in Dollars shall be not less than $2,000,000 and (ii) each Eurocurrency Borrowing in any Available Foreign Currency shall be not less than the Dollar Equivalent Amount in such Currency of $2,000,000.

2.8.            Interest Rates and Payment Dates for Committed Rate Loans .  (a)  Each Committed Rate Eurocurrency Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Margin. `

(b)           (i) Each Original Tranche Committed Rate ABR Loan shall bear interest at a rate per annum equal to the ABR, and (ii) each Extended Tranche Committed Rate ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.

(c)            If all or a portion of (i) the principal amount of any Committed Rate Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection plus 2% or (y) in the case of overdue interest, the rate described in paragraph (a) or (b) of this subsection, as applicable, plus 2%, in each case from the date of such non-payment until such amount is paid in full (as well after as before judgment).

(d)           Interest on Committed Rate Loans shall be payable in arrears on each Interest Payment Date; provided , that interest accruing pursuant to paragraph (c) of this subsection shall be payable from time to time on demand.

2.9.            Inability to Determine Interest Rate .  If on or prior to the Quotation Day for any Interest Period in respect of any Eurocurrency Loan in any Currency:

(a)           the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that, by reason of circumstances affecting the relevant market generally, the Administrative Agent cannot ascertain the Eurocurrency Rate in accordance with this Agreement for such affected Currency or such affected Interest Period, or

(b)           the Administrative Agent shall have received notice from the Majority Lenders that the Eurocurrency Rate determined or to be determined for such affected Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Committed Rate Loans during such affected Interest Period,

(c)           the Administrative Agent shall give telecopy or telephonic notice thereof to the Company and the Lenders as soon as practicable thereafter.  If such notice is given (x) any Eurocurrency Loans requested to be made in such affected Currency on the first day of such affected Interest Period shall be made as ABR Loans in Dollars in a Dollar Equivalent Amount, (y) any Committed Rate Loans that were to have been converted on the first day of such affected Interest Period from ABR Loans, to Eurocurrency Loans in such affected Currency, shall be continued as ABR Loans and (z) any Eurocurrency Loans in such affected Currency that were to have been continued as such shall be converted, on the first day of such Interest Period, to ABR Loans in Dollars in a Dollar Equivalent Amount.  Until such notice has been withdrawn by the Administrative Agent, no further Eurocurrency Loans in such affected Currency shall be made or continued as such.

 

 

2.10.          Substitution of Euro for National Currency .  If any Available Foreign Currency is replaced by the euro, unless otherwise agreed by the Company, the Administrative Agent and the Lenders, the euro may be tendered in satisfaction of any obligation denominated in such Available Foreign Currency at the conversion rate specified in, or otherwise calculated in accordance with, the regulations adopted by the Council of the European Union relating to the euro. No replacement of an Available Foreign Currency by the euro shall discharge, excuse or otherwise affect the performance of any obligation of the Company under this Agreement.

2.11.          Unavailability of Available Foreign Currency .  If on any Quotation Day (a) a Lender notifies the Administrative Agent that the Available Foreign Currency requested is not readily available to it in the amount required or (b) a Lender notifies the Administrative Agent that compliance with its obligation to participate in a Loan in the proposed Available Foreign Currency would contravene a law or regulation applicable to it, the Administrative Agent will give notice to the relevant Borrower to that effect by 12:00 Noon, New York time, on that day.  In this event, any Lender that gives notice pursuant to this subsection will be required to participate in the Loan in Dollars (in an amount equal to the Dollar Equivalent Amount) and its participation will be treated as a separate Loan denominated in Dollars during that Interest Period.

2.12.          Separate Obligations .  Notwithstanding anything to the contrary contained herein or in any other Loan Document, upon and after the First Restatement Effective Date, the parties hereto acknowledge and agree that (a) at no time and in no circumstances shall the Additional Borrower be liable for any Company Obligations or any other indebtedness, liabilities or obligations of the Company hereunder or under any other Loan Documents, whether incurred by the Company before, on or after the First Restatement Effective Date, and the Additional Borrower’s joinder hereto as a borrower does not constitute a guarantee by the Additional Borrower of any Company Obligations or any such other indebtedness, liabilities or obligations of the Company hereunder or under any other Loan Documents, and (b) with respect to any borrowing by either of the Company or the Additional Borrower of any Loans hereunder, such Loans are for the applicable requesting Borrower’s own account, and such Loans and such Borrower’s other obligations hereunder are obligations of such Borrower and do not constitute joint and several obligations of both Borrowers (it being understood, however, that the obligations of the Additional Borrower under the Loan Documents are guaranteed by, and secured by assets of, the Company and the other Loan Parties as and to the extent provided in the Collateral Documents).

 

 

SECTION 3

THE COMPETITIVE ADVANCE LOANS

3.1.            Competitive Advance Loans .  (a)  Subject to the terms and conditions hereof, the Company may, at any time and from time to time during the applicable Commitment Period, request one or more Lenders to offer bids, and any such Lender may, in its sole discretion, offer such bids, to make competitive advance loans (“ Competitive Advance Loans ”) to the Company on the terms and conditions set forth in such bids.  Each Competitive Advance Loan shall bear interest at the rates, pay interest and principal on the dates, and shall mature on the date, agreed between the Company and Lender at the time such Competitive Advance Loan is made; provided , that (i) each Competitive Advance Loan shall mature not earlier than 1 day and not later than 180 days, after the date such Competitive Advance Loan is made, (ii) no Competitive Advance Loan made by an Original Tranche Lender shall mature after the Original Tranche Termination Date and (iii) no Competitive Advance Loan made by an Extended Tranche Lender shall mature after the Extended Tranche Termination Date.  During the applicable Commitment Period the Company may accept bids from Lenders from time to time for Competitive Advance Loans, and borrow and repay Competitive Advance Loans, all in accordance with the terms and conditions hereof; provided , that no Competitive Advance Loan shall be made if, after giving effect to the making of such Loan and the simultaneous application of the proceeds thereof, (x) the aggregate amount of the Original Tranche Exposure would exceed the aggregate amount of the Original Tranche Commitments or (y) the aggregate amount of the Extended Tranche Exposure would exceed the aggregate amount of the Extended Tranche Commitments; and provided further that the aggregate amount of Competitive Advance Loans of the Company at any time outstanding shall not exceed $25,000,000.  Subject to the foregoing, any Lender may, in its sole discretion, make Competitive Advance Loans in an aggregate outstanding amount exceeding the amount of such Lender’s Commitment.

(b)           The Competitive Advance Loans may