EXHIBIT 10.1
AMENDED AND
RESTATED
FIVE-YEAR REVOLVING CREDIT
AGREEMENT
DATED AS OF OCTOBER 12,
2005
AMONG
UNITED STATIONERS SUPPLY
CO.,
AS THE BORROWER
UNITED STATIONERS
INC.,
AS A CREDIT PARTY
THE LENDERS FROM TIME TO TIME
PARTIES HERETO
PNC BANK, N.A.
AND
U.S. BANK, NATIONAL
ASSOCIATION,
AS SYNDICATION
AGENTS
KEYBANK NATIONAL
ASSOCIATION,
AS DOCUMENTATION
AGENT
AND
JPMORGAN CHASE BANK,
N.A.,
AS ADMINISTRATIVE
AGENT
JPMORGAN SECURITIES
INC.,
AS SOLE LEAD ARRANGER AND SOLE
BOOK RUNNER
TABLE OF CONTENTS
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ii
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iv
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SCHEDULES
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Commitment Schedule
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Pricing Schedule
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Schedule 5.8
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Subsidiaries
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Schedule 6.12
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Identified Property Dispositions
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Schedule 6.13
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Investments
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Schedule 6.14
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Indebtedness
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Schedule 6.15
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Liens
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EXHIBITS
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Exhibit A
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Form of the Credit Parties’
Counsel’s Opinion
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Exhibit B
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Form of Compliance Certificate
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Exhibit C
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Form of Assignment and Assumption
Agreement
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Exhibit D
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Form of Promissory Note (if
requested)
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Exhibit E
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Form of Designation Agreement
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Exhibit F
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List of Closing Documents
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i
AMENDED AND RESTATED
FIVE-YEAR REVOLVING CREDIT AGREEMENT
This Amended and Restated Five-Year
Revolving Credit Agreement, dated as of October 12, 2005, is
entered into by and among United Stationers Supply Co., an Illinois
corporation, as the Borrower, United Stationers Inc., a Delaware
corporation, as a Credit Party, the Lenders, PNC Bank, N.A. and
U.S. Bank, National Association, as Syndication Agents, KeyBank
National Association, as Documentation Agent, and JPMorgan Chase
Bank, N.A. (successor by merger to Bank One, NA (Illinois)), as
Agent.
PRELIMINARY
STATEMENTS
WHEREAS , the Parent, the Borrower, certain Lenders, the
Departing Lenders and the Agent are parties to that certain Credit
Agreement, dated as of March 21, 2003 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the
“Existing Credit Agreement”);
WHEREAS , the Parent, the Borrower, the Lenders and the
Agent have agreed to enter into this Agreement in order to
(i) amend and restate the Existing Credit Agreement in its
entirety; (ii) re-evidence the Obligations, which shall be
repayable in accordance with the terms of this Agreement; and
(iii) set forth the terms and conditions under which the
Lenders will, from time to time, make loans and extend other
financial accommodations to or for the benefit of the Borrower;
and
WHEREAS , each Departing Lender has agreed to execute
and deliver a Departing Lender Signature Page pursuant to
which such Departing Lender shall cease to be a party to the
Existing Credit Agreement.
NOW, THEREFORE
, in consideration of the mutual
covenants herein, as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that the Existing Credit Agreement is hereby
amended and restated in its entirety as of the date hereof as
follows:
ARTICLE I
DEFINITIONS
1.1.
Certain Defined Terms . As used in this
Agreement:
“Accounting Changes” is
defined in Section 9.8 hereof.
“Acquisition” means any
transaction, or any series of related transactions, consummated on
or after the Restatement Effective Date, by which the Parent or any
of its Subsidiaries (i) acquires any going concern business or
all or substantially all of the assets of any Person, or division
thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires from one or more Persons
(in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for
the election of directors (other than securities
having such power only by reason of
the happening of a contingency) or a majority (by percentage of
voting power) of the outstanding ownership interests of any
Person.
“Administrative
Questionnaire” means, with respect to any Lender, the
administrative questionnaire delivered by such Lender to the Agent
upon becoming a Lender hereunder, as such questionnaire may be
updated from time to time by notice from such Lender to the
Agent.
“Advance” means a
borrowing hereunder consisting of the aggregate amount of several
Revolving Loans (i) made by some or all of the Lenders on the
same date, or (ii) converted or continued by the Lenders on
the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Revolving Loans of the
same Type and, in the case of Eurodollar Loans, for the same
Interest Period. The term “Advance” shall include
Swing Line Loans unless otherwise expressly provided.
“Affiliate” of any
Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A
Person shall be deemed to control another Person if the controlling
Person is the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of 10%
or more of any class of voting securities (or other ownership
interests) of the controlled Person having ordinary voting power
for the election of directors (or equivalent governing body) or
possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person,
whether through ownership of voting securities, by contract or
otherwise.
“Agent” means JPMorgan
Chase in its capacity as contractual representative of the Lenders
pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to
Article X.
“Aggregate Commitment”
means the aggregate of the Commitments of all the Lenders, as
increased or reduced from time to time pursuant to the terms
hereof. The initial Aggregate Commitment is Two Hundred
Seventy-Five Million and 00/100 Dollars ($275,000,000).
“Aggregate Outstanding Credit
Exposure” means, at any time, the aggregate of the
Outstanding Credit Exposure of all the Lenders.
“Agreement” means this
Amended and Restated Five-Year Revolving Credit Agreement, as it
may be amended, restated, supplemented or otherwise modified and as
in effect from time to time.
“Agreement Accounting
Principles” means generally accepted accounting principles as
in effect in the United States from time to time.
“Alternate Base Rate”
means, for any day, a rate of interest per annum equal to the
greater of (i) the Prime Rate in effect on such day and
(ii) the Federal Funds Effective Rate in effect on such day
plus one-half of one percent (0.5%) per annum. Any
change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
2
“Applicable Fee Rate”
means, with respect to the Commitment Fee at any time, the
percentage rate per annum which is applicable at such time with
respect to such fee as set forth in the Pricing
Schedule.
“Applicable Margin”
means, with respect to Advances of any Type at any time, the
percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing
Schedule.
“Approved Fund” means
any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a
Lender.
“Arranger” means J.P.
Morgan Securities Inc., and its successors, in its capacity as sole
lead arranger and sole book runner for the loan transaction
evidenced by this Agreement.
“Article” means an
article of this Agreement unless another document is
specifically referenced.
“Assignment Agreement”
is defined in Section 12.3.1.
“Authorized Officer”
means any of the chief executive officer, president, chief
operating officer, chief financial officer, controller, treasurer
or assistant treasurer of the Parent, acting singly.
“Available Aggregate
Commitment” means, at any time, the Aggregate Commitment then
in effect minus the Aggregate Outstanding Credit Exposure at
such time.
“Borrower” means
United Stationers Supply Co., an Illinois corporation, and its
permitted successors and assigns (including, without limitation, a
debtor in possession on its behalf).
“Borrowing Date” means a
date on which an Advance is made hereunder.
“Borrowing Notice” is
defined in Section 2.8.
“Business Day” means
(i) with respect to any borrowing, payment or rate selection
of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois for the conduct
of substantially all of their commercial lending activities,
interbank wire transfers can be made on the Fedwire system and
dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday
or Sunday) on which banks generally are open in Chicago, Illinois
for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire
system.
“Canadian Subsidiary”
means (i) any Foreign Subsidiary organized under the laws of
Canada or any jurisdiction located therein and (ii) any
Subsidiary of a Person described in clause (i) hereof that is
organized under the laws of a jurisdiction located in the United
States of America.
3
“Capital Expenditures”
means, without duplication, any expenditures for any purchase or
other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Parent and
its Subsidiaries prepared in accordance with Agreement Accounting
Principles, excluding (i) expenditures of insurance proceeds
to rebuild or replace any asset after a casualty loss,
(ii) leasehold improvement expenditures for which the Parent
or a Subsidiary is reimbursed by the lessor, sublessor or
sublessee, (iii) expenditures of Net Cash Proceeds of any
asset sale permitted under Section 6.12, and (iv) with
respect to any Permitted Acquisition, (a) the Purchase Price
thereof and (b) any Capital Expenditures expended by the
seller or entity to be acquired in any Permitted Acquisition prior
to the date of such Permitted Acquisition.
“Capitalized Lease” of a
Person means any lease of Property by such Person as lessee which
would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
“Capitalized Lease
Obligations” of a Person means the amount of the obligations
of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.
“Cash Equivalent
Investments” means (i) obligations of, or fully
guaranteed by, the United States of America having maturities of
not more than one year from the date of acquisition thereof,
(ii) commercial paper rated A-1 or better by S&P or P-1 or
better by Moody’s, (iii) demand deposit accounts
maintained in the ordinary course of business, and
(iv) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and
surplus in excess of $100,000,000, (v) money market funds that
(a) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, (b) are rated AAA by
S&P or Aaa by Moody’s and (c) have portfolio assets
of at least $5,000,000,000, (vi) marketable direct obligations
issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof
having maturities of not more than 90 days from the date of
acquisition thereof and, at the time of acquisition, having one of
the two highest ratings obtainable from either S&P or
Moody’s and (vii) repurchase obligations with a term of
not more than 30 days underlying securities of the types described
in clause (i) above entered into with any commercial bank
meeting the qualifications specified in clause
(iv) above.
“Change in Control”
means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the SEC under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting
stock of the Parent having ordinary voting power for the election
of directors; (ii) the Parent shall cease to own, directly or
indirectly and free and clear of all Liens or other encumbrances
(other than Liens in favor of the Agent), all of the outstanding
shares of voting stock of the Borrower and, other than pursuant to
a transaction otherwise permitted under this Agreement, the
Guarantors, on a fully diluted basis; or (iii) the majority of
the Board of Directors of the Parent fails to consist of Continuing
Directors.
“Closing Date” means
March 21, 2003.
4
“Code” means the
Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time, and any rule or regulation issued
thereunder.
“Collateral” means all
property and interests in property now owned or hereafter acquired
by the Parent or any of its Domestic Subsidiaries in or upon which
a security interest, lien or mortgage is granted to the Agent, for
the benefit of the Holders of Secured Obligations, or to the Agent,
for the benefit of the Lenders, whether under the Security
Agreement, under any of the other Collateral Documents or under any
of the other Loan Documents; provided , however ,
that Collateral shall not include property constituting
“Securitization Collateral” as defined in the Security
Agreement.
“Collateral Documents”
means all agreements, instruments and documents executed in
connection with this Agreement or the Existing Credit Agreement
that are intended to create or evidence Liens to secure the Secured
Obligations, including, without limitation, the Security Agreement,
the Intellectual Property Security Agreements, and all other
security agreements, mortgages, deeds of trust, loan agreements,
notes, guarantees, subordination agreements, pledges, powers of
attorney, consents, assignments, contracts, fee letters, notices,
leases, financing statements and all other written matter whether
heretofore, now, or hereafter executed by or on behalf of the
Parent or any of its Domestic Subsidiaries and delivered to the
Agent or any of the Lenders, together with all agreements and
documents referred to therein or contemplated thereby.
“Collateral Shortfall
Amount” is defined in Section 8.1.
“Commitment” means, for
each Lender, including, without limitation, each LC Issuer, such
Lender’s obligation to make Loans to, and participate in
Facility LCs issued upon the application of, and each LC
Issuer’s obligation to issue Facility LCs for the account of,
the Borrower in an aggregate amount not exceeding the amount set
forth for such Lender on the Commitment Schedule or in an
Assignment Agreement delivered pursuant to Section 12.3, as
such amount may be modified from time to time pursuant to the terms
hereof.
“Commitment Fee” is
defined in Section 2.5.1.
“Commitment Schedule”
means the Schedule identifying each Lender’s Commitment
as of the Restatement Effective Date attached hereto and identified
as such.
“Consolidated Capital
Expenditures” means, with reference to any period, the
Capital Expenditures of the Parent and its Subsidiaries (other than
TOPCO) calculated on a consolidated basis for such
period.
“Consolidated EBITDA”
means, with respect to any period, Consolidated Net Income for such
period plus , to the extent deducted from revenues in
determining Consolidated Net Income for such period,
(i) Consolidated Interest Expense, (ii) expense for taxes
paid or accrued, (iii) depreciation, (iv) amortization,
(v) losses attributable to equity in Affiliates,
(vi) non-cash charges related to employee compensation and
(vii) any extraordinary non-cash or nonrecurring non-cash
charges or losses, minus , to the extent included in
Consolidated Net Income for such period, any extraordinary non-cash
or nonrecurring non-cash gains, all calculated for the Parent and
its Subsidiaries (other than TOPCO) on a consolidated
basis.
5
“Consolidated Funded
Indebtedness” means, at any time, with respect to any Person,
without duplication, the sum of (i) the aggregate dollar
amount of Consolidated Indebtedness for borrowed money owing by
such Person or for which such Person is liable which has actually
been funded and is outstanding at such time, whether or not such
amount is due or payable at such time, plus (ii) the
aggregate undrawn amount of all standby Letters of Credit at such
time for which such Person or any of its Subsidiaries is the
account party or is otherwise liable (other than standby Letters of
Credit in an amount up to $10,000,000 issued to support
worker’s compensation obligations of the Credit Parties and
other than Letters of Credit supporting any other component of this
definition), plus (iii) the aggregate principal
component of Capitalized Lease Obligations owing by such Person and
its Subsidiaries on a consolidated basis or for which such Person
or any of its Subsidiaries is otherwise liable, plus
(iv) all Off-Balance Sheet Liabilities of such Person and its
Subsidiaries on a consolidated basis, plus (v) all
Disqualified Stock of such Person and its Subsidiaries on a
consolidated basis.
“Consolidated
Indebtedness” means at any time, with respect to any Person,
the Indebtedness of such Person and its Subsidiaries calculated on
a consolidated basis as of such time.
“Consolidated Interest
Expense” means, with reference to any period, the interest
expense of the Parent and its Subsidiaries calculated on a
consolidated basis for such period (net of interest income),
including, without limitation, yield or any other financing costs
resembling interest which are payable under any Receivables
Purchase Facility.
“Consolidated Net
Income” means, with reference to any period, the net income
(or loss) of the Parent and its Subsidiaries (other than TOPCO)
calculated on a consolidated basis for such period and on a FIFO
basis of inventory valuation.
“Consolidated Net Worth”
means at any time, with respect to any Person, the consolidated
stockholders’ equity of such Person and its Subsidiaries
calculated on a consolidated basis and on a FIFO basis of inventory
valuation as of such time.
“Consolidated Rentals”
means, with reference to any period, the rental expense (net of
rental income) of the Parent and its Subsidiaries in respect of
Operating Leases, but excluding rental expense for any extension
thereof for a period shorter than twelve months, calculated on a
consolidated basis for such period; provided that rental
expense in respect of all non-real property rentals shall be the
amount as set forth on the compliance certificate most recently
delivered to the Agent pursuant to Section 6.1.3 in connection
with the most recent annual financial statements of the Parent
delivered pursuant to Section 6.1.1 (and for the period prior
to the delivery of the first such compliance certificate, the
amount set forth on the compliance certificate delivered pursuant
to Section 4.1.5).
“Contingent Obligation”
of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth
or working capital or other financial condition of any other
Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter,
operating agreement, take-or-pay
6
contract or the obligations of any such Person
as general partner of a partnership with respect to the liabilities
of the partnership unless the underlying obligation is expressly
made non-recourse to such general partner; provided ,
however , that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the lesser of
(a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Contingent Obligation, unless such
primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable,
in which case the amount of the Contingent Obligation shall be such
guaranteeing person’s reasonably anticipated liability in
respect thereof as determined by such Person in good
faith.
“Continuing Director”
means, with respect to any Person as of any date of determination,
any member of the board of directors of such Person who
(i) was a member of such board of directors on the Restatement
Effective Date, or (ii) was nominated for election or elected
to such board of directors with the approval of the required
majority of the Continuing Directors who were members of such board
at the time of such nomination or election; provided that if
any individual who is so elected or nominated in connection with a
merger, consolidation, acquisition or similar transaction and who
was not a Continuing Director prior thereto, together with all
other individuals so elected or nominated in connection with such
merger, consolidation, acquisition or similar transaction who were
not Continuing Directors prior thereto, constitute a majority of
the members of the board of directors of such Person, such
individual shall not be a Continuing Director.
“Controlled Group” means
all members of a controlled group of corporations or other business
entities and all trades or businesses (whether or not incorporated)
under common control which, together with the Parent or any of its
Subsidiaries, are treated as a single employer under
Section 414(b) or (c) of the Code.
“Conversion/Continuation
Notice” is defined in Section 2.9.
“Credit Extension” means
the making of an Advance or the issuance of a Facility LC
hereunder.
“Credit Extension Date”
means the Borrowing Date for an Advance or the issuance date for a
Facility LC.
“Credit Party” means,
collectively, the Parent, the Borrower and each of the
Guarantors.
“Default” means an event
described in Article VII.
“Departing Lender” means
each lender under the Existing Credit Agreement that executes and
delivers to the Agent a Departing Lender Signature Page.
“Departing Lender Signature
Page” means each signature page to this Agreement on
which it is indicated that the Departing Lender executing the same
shall cease to be a party to the Existing Credit Agreement on the
Restatement Effective Date.
7
“Designated Lender”
means, with respect to each Designating Lender, each Eligible
Designee designated by such Designating Lender pursuant to
Section 12.1.2.
“Designating Lender”
means, with respect to each Designated Lender, the Lender that
designated such Designated Lender pursuant to
Section 12.1.2.
“Designation Agreement”
is defined in Section 12.1.2.
“Disqualified Stock”
means any preferred or other capital stock that, by its terms (or
by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is
ninety-one (91) days after the Facility Termination
Date.
“Dollar”,
“dollar” and “$” means the lawful currency
of the United States of America.
“Domestic Subsidiary”
means any Subsidiary of any Person that is not a Foreign
Subsidiary.
“Eligible Designee”
means a special purpose corporation, partnership, trust, limited
partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such
Designating Lender and (i) is organized under the laws of the
United States of America or any state thereof, (ii) is engaged
primarily in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and
(iii) issues (or the parent of which issues) commercial paper
rated at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Moody’s.
“Environmental Laws”
means any and all applicable federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of
the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water,
ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from
time to time, and any rules or regulations promulgated
thereunder.
“Eurodollar Advance”
means an Advance which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar
Rate.
“Eurodollar Base Rate”
means, with respect to a Eurodollar Advance for the relevant
Interest Period, the applicable British Bankers’ Association
LIBOR rate for deposits in Dollars as reported by any generally
recognized financial information service as of 11:00 a.m.
(London time) two (2) Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest
Period, provided that, if no such British Bankers’
Association LIBOR rate is available to the Agent, the applicable
Eurodollar Base Rate for the relevant Interest Period
8
shall instead be the rate determined by the
Agent to be the rate at which JPMorgan Chase or one of its
affiliate banks offers to place deposits in Dollars with
first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, in the approximate amount of
JPMorgan Chase’s relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
“Eurodollar Loan” means
a Revolving Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar
Rate.
“Eurodollar Rate” means,
with respect to a Eurodollar Advance for the relevant Interest
Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such Interest Period, plus (ii) the then
Applicable Margin, changing as and when the Applicable Margin
changes.
“Excluded Taxes” means,
in the case of each Lender or applicable Lending Installation and
the Agent, taxes imposed on its overall net income, and franchise
taxes or similar taxes imposed on it, by (i) the jurisdiction
under the laws of which such Lender, such Lending Installation or
the Agent is incorporated or organized or any political combination
or subdivision or taxing authority thereof, (ii) the
jurisdiction in which the Agent’s, such Lending
Installation’s or such Lender’s principal executive
office or such Lender’s applicable Lending Installation is
located or (iii) any other jurisdiction except to the extent
the imposition of such taxes results solely from the
Borrower’s operations or presence in such jurisdiction as
reasonably determined by the Lender or the Agent, as
applicable.
“Exhibit” refers to an
exhibit to this Agreement, unless another document is specifically
referenced.
“Existing Credit
Agreement” is defined in the Preliminary
Statements.
“Existing Revolving
Loan” is defined in Section 2.1.1.
“Facility LC” is defined
in Section 2.20.1.
“Facility LC
Application” is defined in Section 2.20.3.
“Facility LC Collateral
Account” is defined in Section 2.20.11.
“Facility Termination
Date” means the earlier of (a) October 12, 2010 and
(b) the date of termination in whole of the Aggregate
Commitment pursuant to Section 2.5 hereof or the Commitments
pursuant to Section 8.1 hereof.
“Federal Funds Effective
Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) 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 date that is a
Business Day, the average (rounded upwards,
9
if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by
it.
“Financing” means, with
respect to any Person, the issuance, assumption, incurrence or sale
by such Person of any Indebtedness (other than Indebtedness
described in Sections 6.14.1 through 6.14.10, any Indebtedness
incurred under Section 6.14.11 and described in clauses
(a) or (b) of the first parenthetical thereof, and any
Indebtedness incurred under Section 6.14.12 and described in
the first parenthetical thereof); provided , however
, that the foregoing shall not permit the incurrence by the Parent
or any Subsidiary of any Indebtedness if such incurrence is not
otherwise permitted by this Agreement.
“Floating Rate” means,
for any day, a rate per annum equal to the sum of (i) the
Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes plus (ii) the then
Applicable Margin, changing as and when the Applicable Margin
changes.
“Floating Rate Advance”
means an Advance which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
“Floating Rate Loan”
means a Revolving Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
“Foreign Subsidiary”
means (i) any Subsidiary of any Person that is not organized
under the laws of a jurisdiction located in the United States of
America and (ii) any Subsidiary of a Person described in
clause (i) hereof that is organized under the laws of a
jurisdiction located in the United States of America.
“Foreign Subsidiary
Investment” means the sum, without duplication, of
(i) the aggregate outstanding principal amount of all
intercompany loans made on or after the Restatement Effective Date
from any Credit Party to any Foreign Subsidiary; (ii) all
outstanding Investments made on or after the Restatement Effective
Date by any Credit Party in any Foreign Subsidiary; and
(iii) an amount equal to the net benefit derived by the
Foreign Subsidiaries resulting from any non-arm’s-length
transactions, or any other transfer of assets conducted, in each
case entered into on or after the Restatement Effective Date,
between any Credit Party, on the one hand, and such Foreign
Subsidiaries, on the other hand, other than (a) transactions
in the ordinary course of business and (b) in respect of
legal, accounting, reporting, listing and similar administrative
services provided by any Credit Party to any such Foreign
Subsidiary in the ordinary course of business consistent with past
practice.
“Fund” means any Person
(other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of
its business.
“Guarantor” means each
of the Parent’s Domestic Subsidiaries (other than the
Borrower, TOPCO and any SPV) and all other Subsidiaries of the
Parent which become Guarantors in satisfaction of the provisions of
Section 6.23, in each case, together with their respective
permitted successors and assigns.
10
“Guaranty” means the
Guaranty, dated as of March 21, 2003, made by the Parent and
certain Subsidiaries of the Parent in favor of the Agent for the
benefit of the Holders of Secured Obligations, as the same may be
amended, restated, supplemented or otherwise modified from time to
time.
“Holders of Secured
Obligations” means the holders of the Secured Obligations
from time to time and shall refer to (i) each Lender in
respect of its Loans, (ii) the LC Issuers in respect of
Reimbursement Obligations, (iii) the Agent, the Lenders and
the LC Issuers in respect of all other present and future
obligations and liabilities of the Parent, the Borrower or any of
their respective Domestic Subsidiaries of every type and
description arising under or in connection with this Agreement or
any other Loan Document, (iii) each Person benefiting from
indemnities made by the Parent, the Borrower or any Subsidiary
hereunder or under other Loan Documents, (iv) each Lender (or
Affiliate thereof), in respect of all Rate Management Obligations
of the Borrower to such Lender (or such Affiliate) as exchange
party or counterparty under any Rate Management Transaction, and
(v) their respective successors, transferees and assigns (to
the extent not prohibited by this Agreement).
“Identified Disclosure
Documents” means, collectively, the Parent’s Annual
Report on Form 10-K for the fiscal year ended
December 31, 2004, the Parent’s Quarterly Reports on
Form 10-Q for the periods ending on March 31, 2005 and
June 30, 2005, and the Current Reports on Form 8-K filed
by the Parent on February 11, 2005, February 28, 2005,
March 30, 2005, May 6, 2005, May 16, 2005,
May 20, 2005, July 29, 2005 and August 9, 2005, in
each case as filed with the SEC, and any written disclosure
memorandum delivered to the Lenders on or prior to October 11,
2005.
“Indebtedness” of a
Person means, at any time, without duplication, such Person’s
(i) obligations for borrowed money which in accordance with
Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person,
(ii) obligations representing the deferred purchase price of
Property or services (other than current accounts payable arising
in the ordinary course of such Person’s business payable on
terms customary in the trade and accrued expenses in connection
with the provision of services incurred in the ordinary course of
such Person’s business), (iii) Indebtedness of others,
whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or
acquired by such Person ( provided that the amount of any
such Indebtedness at any time shall be deemed to be the lesser of
(a) such Indebtedness at such time and (b) the fair
market value of such Property, as determined by such Person in good
faith at such time), (iv) financial obligations which are
evidenced by notes, bonds, debentures, acceptances, or other
instruments, (v) obligations to purchase securities or other
Property arising out of or in connection with the sale of the same
or substantially similar securities or Property,
(vi) Capitalized Lease Obligations, (vii) Contingent
Obligations of such Person in respect of any Indebtedness,
(viii) reimbursement obligations under Letters of Credit,
bankers’ acceptances, surety bonds and similar instruments,
(ix) Off-Balance Sheet Liabilities, (x) Net Mark-to-Market
Exposure under Rate Management Transactions and (xi) Disqualified
Stock.
“Intellectual Property
Security Agreements” means each of (i) the Trademark
Security Agreement, dated as of March 21, 2003, by and among
the Agent and the Borrower, Azerty Incorporated and
Lagasse, Inc., (ii) the Copyright Security Agreement,
dated as of March 21,
11
2003, by and between the Agent and the Borrower,
and (iii) such other intellectual property security documents
as the Borrower or any Affiliate may from time to time make in
favor of the Agent, in each case as the same may be amended,
restated, supplemented or otherwise modified from time to
time.
“Interest Period” means,
with respect to a Eurodollar Advance, a period of one, two, three
or six months, or, to the extent available to all of the Lenders,
nine or twelve months, commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period
shall end on but exclude the day which corresponds numerically to
such date one, two, three or six months, or if applicable nine or
twelve months, thereafter, provided, however, that if
there is no such numerically corresponding day in such next,
second, third, sixth, ninth or twelfth succeeding month, such
Interest Period shall end on the last Business Day of such next,
second, third, sixth, ninth or twelfth succeeding month. If
an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding
Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
“Investment” of a Person
means any loan, advance (other than commission, travel, relocation
and similar advances to directors, officers and employees made in
the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on
terms customary in the trade) or contribution of capital by such
Person; stocks, bonds, mutual funds, partnership interests, notes,
debentures or other securities owned by such Person; any deposit
accounts and certificates of deposit owned by such Person; and
structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
“JPMorgan Chase” means
JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA
(Illinois)), in its individual capacity, and its
successors.
“LC Fee” is defined in
Section 2.20.4.
“LC Issuer” means
JPMorgan Chase (or any Subsidiary or Affiliate of JPMorgan Chase
designated by JPMorgan Chase) or any of the other Lenders, as
applicable, in its respective capacity as issuer of Facility LCs
hereunder.
“LC Obligations” means,
at any time, the sum, without duplication, of (i) the
aggregate undrawn amount under all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time
of all Reimbursement Obligations.
“LC Payment Date” is
defined in Section 2.20.5.
“LC Reimbursement Date”
is defined in Section 2.20.6.
“Lenders” means the
lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns. Unless
otherwise specified, the term “Lenders” includes the
Swing Line Lender and the LC Issuers.
12
“Lending Installation”
means, with respect to a Lender or the Agent, the office, branch,
Subsidiary or Affiliate of such Lender or the Agent listed on the
signature pages hereof or on the administrative information
sheets provided to the Agent in connection herewith or on a
Schedule or otherwise selected by such Lender or the Agent
pursuant to Section 2.17.
“Letter of Credit” of a
Person means a letter of credit or similar instrument which is
issued upon the application of such Person or upon which such
Person is an account party or, without duplication, for which such
Person has a reimbursement obligation.
“Leverage Ratio” is
defined in Section 6.20.
“Lien” means any lien
(statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
“Loan” means, with
respect to a Lender, such Lender’s loan made pursuant to
Article II (or any conversion or continuation thereof),
whether constituting a Revolving Loan or a Swing Line
Loan.
“Loan Documents” means
this Agreement, the Facility LC Applications, the Collateral
Documents, the Guaranty, and all other documents, instruments,
notes (including any Notes issued pursuant to Section 2.13 (if
requested)) and agreements executed in connection herewith or
therewith or contemplated hereby or thereby, as the same may be
amended, restated or otherwise modified and in effect from time to
time.
“Material Adverse
Effect” means a material adverse effect on (i) the
business, condition (financial or otherwise), operations,
Properties or prospects of the Parent and its Subsidiaries taken as
a whole, or the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Parent, the Borrower or any Subsidiary
to perform its obligations under the Loan Documents, (iii) the
validity or enforceability of any of the Loan Documents or
(iv) the rights or remedies of the Agent, the LC Issuers or
the Lenders thereunder or their rights with respect to the
Collateral taken as a whole.
“Material Foreign
Subsidiary” means any direct or indirect first-tier Foreign
Subsidiary of the Parent that at any time has
(i) (a) sales as of the last day of any fiscal quarter
(calculated on a consolidated basis for such Subsidiary and its
consolidated Subsidiaries for the twelve-month period then ended)
greater than or equal to five percent (5%) of consolidated sales of
the Parent and its Subsidiaries for such period and
(b) Consolidated EBITDA as of the last day of such fiscal
quarter (calculated on a consolidated basis for such Subsidiary and
its consolidated Subsidiaries for the twelve-month period then
ended) greater than or equal to five percent (5%) of Consolidated
EBITDA of the Parent and its Subsidiaries for such period, or
(ii) on a consolidated basis for such Subsidiary and its
consolidated Subsidiaries at any time five percent (5%) or more of
the consolidated total assets of the Parent and its Subsidiaries as
reported in the most recent annual or quarterly financial
statements of the Parent delivered pursuant to Section 6.1.1
or 6.1.2.
13
“Material Indebtedness”
means any Indebtedness in an outstanding principal amount of
$25,000,000 or more in the aggregate (or the equivalent thereof in
any currency other than Dollars), other than the
Obligations.
“Modify” and
“Modification” are defined in
Section 2.20.1.
“Moody’s” means
Moody’s Investors Services, Inc. and any successor
thereto.
“Multiemployer Plan”
means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, which is covered by Title IV
of ERISA and to which the Parent or any member of the Controlled
Group is obligated to make contributions.
“Net Cash Proceeds”
means, with respect to any sale of Property or any Financing by any
Person, (a) cash (freely convertible into Dollars) received by
such Person or any Subsidiary of such Person from such sale of
Property or Financing, after (i) provision for all income or
other taxes measured by or resulting from such sale of Property,
(ii) payment of all reasonable brokerage commissions and other
fees and expenses related to such sale of Property or Financing,
and (iii) all amounts used to repay Indebtedness secured by a
Lien on any asset disposed of in such sale of Property which is or
may be required (by the express terms of the instrument governing
such Indebtedness or by the purchaser of such Property) to be
repaid in connection with such sale of Property (including payments
made to obtain or avoid the need for the consent of any holder of
such Indebtedness).
“Net Mark-to-Market
Exposure” of a Person means, as of any date of determination,
the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management
Transactions. “Unrealized losses” means the fair
market value of the cost to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming
the Rate Management Transaction were to be terminated as of that
date), and “unrealized profits” means the fair market
value of the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate
Management Transaction were to be terminated as of that
date).
“Non-U.S. Lender”
is defined in Section 3.5(iv).
“Note” is defined in
Section 2.13.
“Obligations” means all
unpaid principal of and accrued and unpaid interest on the Loans,
all Reimbursement Obligations, accrued and unpaid fees, all expense
and other reimbursement obligations, and all indemnities and other
obligations of any Credit Party to the Agent, any Lender, the
Arranger (or any Affiliate of any of the foregoing) or any Person
benefiting from indemnities made by any Credit Party hereunder or
under any other Loan Document, in each case of any kind or nature,
present or future, arising under this Agreement, the Existing
Credit Agreement or any other Loan Document, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, outside attorneys’
fees and disbursements, paralegals’ fees (in each case
whether or not allowed under the Federal bankruptcy laws), and any
other sum
14
chargeable to any Credit Party under this
Agreement, the Existing Credit Agreement or any other Loan
Document.
“Off-Balance Sheet
Liability” of a Person means, without duplication, the
principal component of (i) any Receivables Purchase Facility
or any other repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person (other
than the sale or disposition in the ordinary course of business of
accounts or notes receivable in connection with the compromise or
collection thereof consistent with customary industry practice (and
not as part of any bulk sale or financing of receivables)) or
(ii) any liability under any so-called “synthetic
lease” or “tax ownership operating lease”
transaction entered into by such Person; provided that
“Off-Balance Sheet Liabilities” shall not include the
principal component of the foregoing if such principal component
(a) is otherwise reflected as a liability on such
Person’s consolidated balance sheet or (b) is deducted
from revenues in determining such Person’s consolidated net
income but is not thereafter added back in calculating such
Person’s Consolidated EBITDA.
“Off-Balance Sheet Trigger
Event” is defined in Section 7.15.
“Operating Lease” of a
Person means any lease of Property (other than a Capitalized Lease)
by such Person as lessee which has an original term (including any
required renewals and any renewals effective at the option of the
lessor) of one year or more.
“Other Taxes” is defined
in Section 3.5(ii).
“Outstanding Credit
Exposure” means, as to any Lender at any time, the sum of
(i) the aggregate principal amount of its Revolving Loans
outstanding at such time, plus (ii) an amount equal to
its ratable obligation to purchase participations in the aggregate
principal amount of Swing Line Loans outstanding at such time,
plus (iii) an amount equal to its ratable obligation to
purchase participations in the LC Obligations at such
time.
“Parent” means United
Stationers Inc., a Delaware corporation, and its permitted
successors and assigns (including, without limitation, a debtor in
possession on its behalf).
“Participants” is
defined in Section 12.2.1.
“Payment Date” means the
last day of each March, June, September and December and
the Facility Termination Date.
“PBGC” means the Pension
Benefit Guaranty Corporation, or any successor thereto.
“Permitted Acquisition”
is defined in Section 6.13.5.
“Permitted Customer Financing
Guarantee” means any guaranty or repurchase or recourse
obligations of the Borrower, incurred in the ordinary course of
business, in respect of Indebtedness incurred by a customer of the
Borrower; provided that the Borrower’s obligations in respect
of all such guarantees and other recourse obligations shall not
exceed $30,000,000 in the aggregate.
15
“Permitted Distribution
Amount” is defined in Section 6.10.
“Permitted Priority
Liens” means any Liens permitted by Section 6.15 and
(i) arising by operation of applicable law (and not solely by
contract) and are perfected (other than by the filing of a
financing statement or other filing or control agreement) and
accorded priority over the Agent’s Liens on the Collateral by
operation of applicable law, (ii) arising under any of
Sections 6.15.6, 6.15.7 or 6.15.23 or reflected on any title
commitment issued with any Collateral Document, or
(iii) securing purchase money Indebtedness, Capitalized Lease
Obligations or Indebtedness described in the first parenthetical of
Section 6.14.12, in each case to the extent the same are
permitted to exist or otherwise be incurred hereunder.
“Permitted Purchase Money
Debt” is defined in Section 6.14.5.
“Person” means any
natural person, corporation, firm, joint venture, partnership,
limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision
or any agency, department or instrumentality thereof.
“Plan” means an employee
pension benefit plan, excluding any Multiemployer Plan, which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Parent
or any member of the Controlled Group may have any
liability.
“Pricing Schedule” means
the Schedule identifying the Applicable Margin and Applicable
Fee Rate attached hereto and identified as such.
“Prime Rate” means 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.
“Property” of a Person
means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased
or operated by such Person.
“Pro Rata Share” means,
with respect to a Lender, a portion equal to a fraction the
numerator of which is such Lender’s Commitment at such time
(in each case, as adjusted from time to time in accordance with the
provisions of this Agreement) and the denominator of which is the
Aggregate Commitment at such time, or, if the Aggregate Commitment
has been terminated, a fraction the numerator of which is such
Lender’s Outstanding Credit Exposure at such time and the
denominator of which is the sum of the Aggregate Outstanding Credit
Exposure at such time.
“Purchase Price” means
the total consideration and other amounts payable in connection
with any Acquisition, including, without limitation, any portion of
the consideration payable in cash, all Indebtedness incurred or
assumed in connection with such Acquisition, but exclusive of the
value of any capital stock or other equity interests of the Parent,
the Borrower or any Subsidiary issued as consideration for such
Acquisition.
“Purchasers” is defined
in Section 12.3.1.
16
“Rate Management
Obligations” of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions,
and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management
Transactions.
“Rate Management
Transaction” means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the
Parent, the Borrower or a Subsidiary which is a rate swap, basis
swap, forward rate transaction, equity or equity index swap, equity
or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to
one or more interest rates, foreign currencies, commodity prices or
equity prices.
“Receivables Purchase
Documents” means any series of receivables purchase or sale
agreements, servicing agreements and other related agreements
generally consistent with terms contained in comparable structured
finance transactions pursuant to which the Parent, the Borrower or
any of its Subsidiaries, in their respective capacities as sellers
or transferors of any receivables, sell or transfer, directly or
indirectly, to SPVs all of their respective right, title and
interest in and to (but not their obligations under) certain
receivables for further sale or transfer (or granting of Liens to
other purchasers of or investors in such assets or interests
therein (and the other documents, instruments and agreements
executed in connection therewith)), as any such agreements may be
amended, restated, supplemented or otherwise modified from time to
time, or any replacement or substitution therefor.
“Receivables Purchase
Facility” means any securitization facility made available to
the Parent, the Borrower or any of its Subsidiaries, pursuant to
which receivables of the Parent, the Borrower or any of its
Subsidiaries are transferred, directly or indirectly, to one or
more SPVs, and thereafter to certain investors, pursuant to the
terms and conditions of the Receivables Purchase
Documents.
“Regulation D” means
Regulation D of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member
banks of the Federal Reserve System.
“Regulation U” means
Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks, non-banks and
non-broker lenders for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve
System.
“Regulation X” means
Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other
regulation or official
17
interpretation of said Board of Governors
relating to the extension of credit by foreign lenders for the
purpose of purchasing or carrying margin stock (as defined
therein).
“Reimbursement
Obligations” means, at any time, with respect to any LC
Issuer, the aggregate of all obligations of the Borrower then
outstanding under Section 2.20 to reimburse such LC Issuer for
amounts paid by such LC Issuer in respect of any one or more
drawings under Facility LCs issued by such LC Issuer; or, as the
context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
“Required Lenders” means
Lenders in the aggregate having more than 50% of the Aggregate
Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding more than 50% of the Aggregate
Outstanding Credit Exposure.
“Reserve Requirement”
means, with respect to an Interest Period, the maximum aggregate
reserve requirement (including all basic, supplemental, marginal
and other reserves) which is imposed under Regulation D on
“Eurocurrency liabilities” (as defined in Regulation
D).
“Restatement Effective
Date” means October 12, 2005.
“Revolving Loan” means,
with respect to a Lender, such Lender’s loan made pursuant to
its commitment to lend set forth in Section 2.1 (and any
conversion or continuation thereof) and includes any Existing
Revolving Loan.
“S&P” means Standard
and Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.
“Schedule” refers to a
specific schedule to this Agreement, unless another document
is specifically referenced.
“SEC” means the United
States Securities and Exchange Commission, and any successor
thereto.
“Section” means a
numbered section of this Agreement, unless another document is
specifically referenced.
“Secured Obligations”
means, collectively, (i) the Obligations and (ii) so long
as any Lender shall remain a Lender hereunder, all Rate Management
Obligations owing in connection with Rate Management Transactions
to such Lender or any Affiliate of such Lender.
“Security Agreement”
means the Security Agreement, dated as of March 21, 2003, by
and between the Borrower, the Parent and certain Subsidiaries of
the Parent, as grantors thereunder, and the Agent for the benefit
of the Holders of Secured Obligations, as the same may be amended,
restated, supplemented or otherwise modified from time to
time.
“Single Employer
Plan” means a Plan maintained by the Parent or any member of
the Controlled Group for employees of the Parent or any member of
the Controlled Group.
18
“Solvent” means, when
used with respect to the Parent and its Subsidiaries (on a
consolidated basis), that at the time of determination:
(i)
the fair value of their consolidated assets (both at fair valuation
and at present fair saleable value) is equal to or in excess of the
total amount of their consolidated liabilities, including without
limitation contingent liabilities; and
(ii)
they are then able and presently expect to be able to pay their
consolidated debts as they mature; and
(iii)
they have capital sufficient to carry on their business as
conducted.
With respect to contingent
liabilities (such as litigation, guarantees and pension plan
liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the
time, represent the amount which can be reasonably be expected to
become an actual or matured liability.
“SPV” means any special
purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
“Subsidiary” of a Person
means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all
references herein to a “Subsidiary” shall mean a
Subsidiary of the Parent.
“Substantial Portion”
means, with respect to the Property of the Parent and its
Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Parent and its Subsidiaries or property
which is responsible for more than 10% of the consolidated net
sales or of the Consolidated Net Income of the Parent and its
Subsidiaries, in each case, as would be shown in the consolidated
financial statements of the Parent and its Subsidiaries as at the
end of the four fiscal quarter period ending with the fiscal
quarter immediately prior to the fiscal quarter in which such
determination is made (or if financial statements have not been
delivered hereunder for that fiscal quarter which ends the four
fiscal quarter period, then the financial statements delivered
hereunder for the quarter ending immediately prior to that
quarter).
“Swing Line Borrowing
Notice” is defined in Section 2.4.2.
“Swing Line Commitment”
means the obligation of the Swing Line Lender to make Swing Line
Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
“Swing Line Lender”
means JPMorgan Chase or such other Lender which may succeed to its
rights and obligations as Swing Line Lender pursuant to the terms
of this Agreement.
19
“Swing Line Loan” means
a Loan made available to the Borrower by the Swing Line Lender
pursuant to Section 2.4 and includes any “Swing Line
Loan” made pursuant to the Existing Credit Agreement and
outstanding on the Restatement Effective Date.
“Taxes” means any and
all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect
to the foregoing, but excluding Excluded Taxes and Other
Taxes.
“Term Loan” is defined
in Section 2.21.
“TOPCO” means The Order
People Company, a Delaware corporation.
“TOPCO Investment” means
the sum, without duplication, of (i) the aggregate outstanding
principal amount of all intercompany loans made on or after the
Restatement Effective Date from any Credit Party to TOPCO;
(ii) all outstanding Investments made on or after the
Restatement Effective Date by any Credit Party in TOPCO; and
(iii) an amount equal to the net benefit derived by TOPCO
resulting from any non-arm’s-length transactions, or any
other transfer of assets conducted, in each case entered into on or
after the Restatement Effective Date, between any Credit Party, on
the one hand, and TOPCO, on the other hand, other than
(a) transactions in the ordinary course of business and
(b) in respect of legal, accounting, reporting, listing and
similar administrative services provided by any Credit Party to
TOPCO in the ordinary course of business consistent with past
practice.
“Transferee” is defined
in Section 12.4.
“Type” means, with
respect to any Advance, its nature as a Floating Rate Advance or a
Eurodollar Advance and with respect to any Revolving Loan, its
nature as a Floating Rate Loan or a Eurodollar Loan.
“Unmatured Default”
means an event which but for the lapse of time or the giving of
notice, or both, would constitute a Default.
“Weighted Average Life to
Maturity” means when applied to any Indebtedness at any date,
the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other
required scheduled payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.
“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary all of
the outstanding voting securities (other than directors’
qualifying shares) of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one
or more Wholly-Owned Subsidiaries of such Person, or (ii) any
partnership, limited liability company, association, joint venture
or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned
or controlled.
20
1.2.
Plural
Forms . The foregoing
definitions shall be equally applicable to both the singular and
plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1.
Existing
Revolving Loans; Commitment .
2.1.1
Existing Revolving Loans . Prior to the Restatement
Effective Date, revolving loans were previously made to the
Borrower under the Existing Credit Agreement which remain
outstanding as of the date of this Agreement (such outstanding
revolving loans being hereinafter referred to as the
“Existing Revolving Loans”). Subject to the terms
and conditions set forth in this Agreement, the Borrower and each
of the Lenders agree that on the Restatement Effective Date but
subject to the satisfaction of the conditions precedent set forth
in Sections 4.1 and 4.2 (as applicable), the Existing Revolving
Loans shall be reevidenced as Revolving Loans under this Agreement
and the terms of the Existing Revolving Loans shall be restated in
their entirety and shall be evidenced by this
Agreement.
2.1.2
Commitment . From and including the Restatement
Effective Date and prior to the Facility Termination Date, upon the
satisfaction of the conditions precedent set forth in Sections 4.1
and 4.2, as applicable, each Lender severally and not jointly
agrees, on the terms and conditions set forth in this Agreement, to
(i) make Revolving Loans to the Borrower in Dollars from time
to time and (ii) participate in Facility LCs issued upon the
request of the Borrower, in each case in an amount not to exceed in
the aggregate at any one time outstanding of its Pro Rata Share of
the Available Aggregate Commitment; provided that at no time
shall the Aggregate Outstanding Credit Exposure hereunder exceed
the Aggregate Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans at any time prior to the Facility Termination Date. The
commitment of each Lender to lend hereunder shall automatically
expire on the Facility Termination Date. The LC Issuers will
issue Facility LCs hereunder on the terms and conditions set forth
in Section 2.20.
2.2.
Required
Payments; Termination . (a) Any
outstanding Advances and all other unpaid Secured Obligations shall
be paid in full by the Borrower on the Facility Termination
Date. Notwithstanding the termination of the Commitments
under this Agreement on the Facility Termination Date, until all of
the Secured Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied and all
financing arrangements among the Borrower and the Lenders hereunder
and under the other Loan Documents shall have been terminated, all
of the rights and remedies under this Agreement and the other Loan
Documents shall survive.
(b)
Asset Sales and Insurance
Proceeds . Upon
(1) the consummation of any sale, lease, conveyance, transfer,
casualty or other disposition (“Asset Sale”) of
Property (other than sales permitted under Sections 6.12.1 through
6.12.9) by the Parent or any Subsidiary of the Parent, except to
the extent that the Net Cash Proceeds of such Asset Sale, when
combined with
21
the Net Cash Proceeds of all such Asset Sales
during the immediately preceding twelve-month period, do not exceed
$35,000,000 for any such Asset Sale or series of related Asset
Sales or (2) the receipt by the Parent or any of its
Subsidiaries of proceeds from insurance in connection with any
property loss or casualty, net of costs and taxes incurred in
connection with such loss or casualty (“Loss
Proceeds”), except to the extent that such Loss Proceeds,
when combined with all other Loss Proceeds received during the then
current fiscal year, do not exceed $20,000,000, and in each case,
except as provided in the second sentence of this clause (b),
within five (5) Business Days after the Parent’s or any
of its Subsidiaries’ (x) receipt of any Net Cash Proceeds
from any such Asset Sale or any such Loss Proceeds, or (y)
conversion to cash or Cash Equivalent Investments of non-cash
proceeds (whether principal or interest and including securities,
release of escrow arrangements or lease payments) received from any
Asset Sale, the Borrower shall make a mandatory prepayment of the
Obligations, subject to the provisions governing the application of
payments set forth in Section 2.2(d), in an amount equal to
one hundred percent (100%) of such Net Cash Proceeds or Loss
Proceeds or such proceeds converted from non-cash to cash or Cash
Equivalent Investments. Unless a Default or Unmatured Default
shall have occurred and is continuing, in the event that the
Borrower shall have given the Agent written notice within thirty
(30) days after an Asset Sale or event giving rise to such Loss
Proceeds of its intention to replace the assets or use such Net
Cash Proceeds or Loss Proceeds, as applicable, to acquire other
assets useful in the business of the Parent and its Subsidiaries
(other than the acquisition of assets for use by TOPCO) (which
shall include, without limitation, assets acquired pursuant to a
Permitted Acquisition) within twelve (12) months following such
Asset Sale or the receipt of such Loss Proceeds, as applicable,
then such Net Cash Proceeds or Loss Proceeds shall not be subject
to the provisions of the first sentence of this clause
(b) unless and to the extent that such applicable period shall
have expired without such replacement having been made.
(c)
Financings
. Upon the consummation of any
Financing by the Parent or any Subsidiary of the Parent, within
five (5) Business Days after the Parent’s or any of its
Subsidiaries’ receipt of any Net Cash Proceeds from such
Financing, the Borrower shall make a mandatory prepayment of the
Obligations, subject to the provisions governing the application of
payments set forth in Section 2.2(d), in an amount equal to
one hundred percent (100%) of the excess over $50,000,000 (when
taken together with the Net Cash Proceeds of all other Financings
after the Restatement Effective Date) of all such Net Cash
Proceeds.
(d)
Application of Designated
Prepayments . Each
mandatory prepayment required by clauses (b) and
(c) of this Section 2.2 shall be referred to
herein as a “Designated Prepayment.” Designated
Prepayments shall be applied to repay Revolving Loans and shall
automatically reduce Commitments ratably in an amount equal to such
Designated Prepayment. Following the payment in full of the
Revolving Loans, the amount of each Designated Prepayment shall be
applied first to interest on the Reimbursement Obligations, then to
principal on the Reimbursement Obligations, then to fees on account
of Facility LCs, then, to the extent any L/C Obligations are
contingent, deposited with the Agent as cash collateral in respect
of such L/C Obligations (up to an amount not to exceed 100% of such
contingent obligations), and then any excess shall be returned to
the Borrower or paid to whomever may be legally entitled thereto at
such time.
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(e)
Application and Priority of
Prepayments . With
respect to the reduction of the Revolving Loans on any date,
Designated Prepayments shall first be applied to Floating Rate
Loans and to any Eurodollar Rate Loans maturing on such date and
then to subsequently maturing Eurodollar Rate Loans in order of
maturity.
2.3.
Ratable Loans;
Types of Advances . (a) Each Advance
hereunder (other than a Swing Line Loan) shall consist of Revolving
Loans made from the several Lenders ratably in proportion to the
ratio that their respective Commitments bear to the Aggregate
Commitment.
(b)
The Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected
by the Borrower in accordance with Sections 2.8 and 2.9, or Swing
Line Loans selected by the Borrower in accordance with
Section 2.4.
2.4.
Swing Line
Loans .
2.4.1
Amount of Swing Line Loans . Upon the satisfaction of
the conditions precedent set forth in Section 4.2 and, if such
Swing Line Loan is to be made on the date of the initial Credit
Extension hereunder, the satisfaction of the conditions precedent
set forth in Section 4.1 as well, from and including the
Restatement Effective Date and prior to the Facility Termination
Date, the Swing Line Lender agrees, on the terms and conditions set
forth in this Agreement, to make Swing Line Loans in Dollars to the
Borrower from time to time in an aggregate principal amount not to
exceed the Swing Line Commitment, provided that (i) the
Aggregate Outstanding Credit Exposure shall not at any time exceed
the Aggregate Commitment and (ii) at no time shall the sum of
(a) the Swing Line Loans then outstanding, plus
(b) the outstanding Revolving Loans made by the Swing Line
Lender pursuant to Section 2.1 (including its participation in
any Facility LCs), exceed the Swing Line Lender’s Commitment
at such time. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any
time prior to the Facility Termination Date.
2.4.2
Borrowing Notice . The Borrower shall deliver to the
Agent and the Swing Line Lender irrevocable notice (a “Swing
Line Borrowing Notice”) not later than 2:00 p.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall
be a Business Day), and (ii) the aggregate amount of the
requested Swing Line Loan which shall be an amount not less than
$100,000. The Swing Line Loans shall bear interest at the
Floating Rate or such other rate per annum as shall be agreed to by
the Swing Line Lender and the Borrower.
2.4.3
Making of Swing Line Loans . Promptly after receipt of
a Swing Line Borrowing Notice, the Agent shall notify each Lender
by fax or other similar form of transmission, of the requested
Swing Line Loan. Not later than 4:00 p.m. (Chicago time)
on the applicable Borrowing Date, the Swing Line Lender shall make
available the Swing Line Loan, in funds immediately available in
Chicago, to the Agent at its address specified pursuant to
Article XIII. The Agent will promptly make the funds so
received from the Swing Line Lender available to the Borrower on
the Borrowing Date at the Agent’s aforesaid address in an
account maintained and designated by the Borrower.
23
2.4.4
Repayment of Swing Line Loans . Each Swing Line Loan
shall be paid in full by the Borrower on or before the fifth (5
th ) Business Day after the Borrowing Date for such
Swing Line Loan. In addition, the Swing Line Lender
(i) may at any time in its sole discretion with respect to any
outstanding Swing Line Loan, or (ii) shall, on the fifth (5
th ) Business Day after the Borrowing Date of any Swing
Line Loan, require each Lender (including the Swing Line Lender) to
make a Revolving Loan in the amount of such Lender’s Pro Rata
Share of such Swing Line Loan (including, without limitation, any
interest accrued and unpaid thereon), for the purpose of repaying
such Swing Line Loan. Not later than 2:00 p.m. (Chicago
time) on the date of any notice received pursuant to this
Section 2.4.4, each Lender shall make available its required
Revolving Loan, in funds immediately available in Chicago to the
Agent at its address specified pursuant to Article XIII.
Revolving Loans made pursuant to this Section 2.4.4 shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Loans in the
manner provided in Section 2.9 and subject to the other
conditions and limitations set forth in this Article II.
Unless a Lender shall have notified the Swing Line Lender, prior to
its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender’s obligation to make Revolving Loans
pursuant to this Section 2.4.4 to repay Swing Line Loans shall
be unconditional, continuing, irrevocable and absolute and shall
not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Agent, the
Swing Line Lender or any other Person, (b) the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of the Borrower,
or (d) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make
payment to the Agent of any amount due under this
Section 2.4.4, the Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Agent receives
such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason
any Lender fails to make payment to the Agent of any amount due
under this Section 2.4.4, such Lender shall be deemed, at the
option of the Agent, to have unconditionally and irrevocably
purchased from the Swing Line Lender, without recourse or warranty,
an undivided interest and participation in the applicable Swing
Line Loan in the amount of such Revolving Loan, and such interest
and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on
the date such amount is received. On the Facility Termination
Date, the Borrower shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.5.
Commitment
Fee; Aggregate Commitment .
2.5.1
Commitment Fee . The Borrower shall pay to the Agent,
for the account of the Lenders in accordance with their Pro Rata
Shares of the Aggregate Commitment, from and after the Restatement
Effective Date until the date on which the Aggregate Commitment
shall be terminated in whole, a commitment fee (the
“Commitment Fee”) accruing at the rate of the then
Applicable Fee Rate on the daily average Available Aggregate
Commitment (excluding from the calculation thereof, the Swing Line
Loans).
24
All such
Commitment Fees payable hereunder shall be payable quarterly in
arrears on each Payment Date. In addition, on the Restatement
Effective Date, the Borrower shall pay to the Agent for the ratable
account of the lenders then party to the Existing Credit Agreement,
the accrued and unpaid commitment fees under the Existing Credit
Agreement through the Restatement Effective Date.
2.5.2
Reductions in Aggregate Commitment . The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part,
ratably among the Lenders in a minimum amount of $5,000,000 (and in
multiples of $1,000,000 if in excess thereof), upon at least three
(3) Business Days’ prior written notice to the Agent,
which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate
Commitment may not be reduced below the Aggregate Outstanding
Credit Exposure. All accrued Commitment Fees shall be payable
on the effective date of any termination of the
Commitments.
2.6.
Minimum Amount
of Each Advance . Each Eurodollar
Advance shall be in the minimum amount of $5,000,000 (and in
multiples of $1,000,000 if in excess thereof), and each Floating
Rate Advance (other than an Advance to repay Swing Line Loans or to
refund Reimbursement Obligations) shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof),
provided, however, that any Floating Rate Advance may
be in the amount of the Available Aggregate Commitment.
2.7.
Optional
Principal Payments . The Borrower may from
time to time pay, without penalty or premium, all outstanding
Floating Rate Advances (other than Swing Line Loans), or any
portion of the outstanding Floating Rate Advances (other than Swing
Line Loans), in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, with notice to the
Agent by 11:00 a.m. (Chicago time) on the date of any
anticipated repayment. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans, or,
in a minimum amount of $100,000 and increments of $100,000 in
excess thereof, any portion of the outstanding Swing Line Loans,
with notice to the Agent and the Swing Line Lender by 12:00 noon
(Chicago time) on the date of repayment. The Borrower may
from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without
penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding
Eurodollar Advances upon three (3) Business Days’ prior
notice to the Agent.
2.8.
Method of
Selecting Types and Interest Periods for New Advances
. The
Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from
time to time; provided that there shall be no more than
eight (8) Interest Periods in effect with respect to all of
the Revolving Loans at any time, unless such limit has been waived
by the Agent in its sole discretion. The Borrower shall give
the Agent irrevocable notice (a “Borrowing Notice”) not
later than 12:00 noon (Chicago time) on the Borrowing Date of each
Floating Rate Advance (other than a Swing Line Loan) and three
(3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i)
the Borrowing
Date, which shall be a Business Day, of such Advance,
25
(ii)
the aggregate
amount of such Advance,
(iii)
the Type of
Advance selected, and
(iv)
in the case of
each Eurodollar Advance, the Interest Period applicable
thereto.
Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving
Loan or Revolving Loans in Federal or other funds immediately
available in Chicago to the Agent at its address specified pursuant
to Article XIII. The Agent will promptly make the funds
so received from the Lenders available to the Borrower at the
Agent’s aforesaid address in an account maintained and
designated by the Borrower.
2.9.
Conversion and
Continuation of Outstanding Advances; No Conversion or Continuation
of Eurodollar Advances After Default . Floating Rate
Advances (other than Swing Line Advances) shall continue as
Floating Rate Advances unless and until such Floating Rate Advances
are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with
Section 2.7. Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be
automatically converted into a Floating Rate Advance unless (x)
such Eurodollar Advance is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Eurodollar Advance continue as a Eurodollar
Advance for the same or another Interest Period. Subject to
the terms of Section 2.6 and the payment of any funding
indemnification amounts required by Section 3.4, the Borrower
may elect from time to time to convert all or any part of an
Advance of any Type (other than a Swing Line Advance) into any
other Type or Types of Advances. Notwithstanding anything to
the contrary contained in this Section 2.9, during the
continuance of a Default, the Agent may (or shall at the direction
of the Required Lenders), by notice to the Borrower, declare that
no Advance may be made as, converted to or, following the
expiration of any Interest Periods then in effect, continued as a
Eurodollar Advance. The Borrower shall give the Agent
irrevocable notice (a “Conversion/Continuation Notice”)
of each conversion of an Advance or continuation of a Eurodollar
Advance not later than 12:00 noon (Chicago time) on the same
Business Day, in the case of a conversion into a Floating Rate
Advance, or three (3) Business Days, in the case of a
conversion into or continuation of a Eurodollar Advance, prior to
the date of the requested conversion or continuation,
specifying:
(i)
the requested
date, which shall be a Business Day, of such conversion or
continuation,
(ii)
the aggregate
amount and Type of the Advance which is to be converted or
continued, and
(iii)
the amount of
such Advance which is to be converted into or continued as a
Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.10.
Changes in
Interest Rate, etc. Each Floating Rate Advance
(other than a Swing Line Advance) shall bear interest on the
outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically
converted from a Eurodollar
26
Advance into a
Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar
Advance pursuant to Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day. Each Swing Line Loan
shall bear interest on the outstanding principal amount thereof,
for each day from and including the day such Swing Line Loan is
made to but excluding the date it is fully paid at a rate per annum
equal to the Floating Rate for such day or at such other rate per
annum as shall be agreed to by the Swing Line Lender and the
Borrower. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate.
Each Eurodollar Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the Eurodollar Rate applicable to
such Eurodollar Advance and otherwise in accordance with the terms
hereof. No Interest Period may end after the Facility
Termination Date.
2.11.
Rates
Applicable After Default . During the
continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable
Interest Period at a rate per annum equal to the Floating Rate in
effect from time to time plus 2% per annum, (ii) each
Floating Rate Advance and each Swing Line Loan shall bear interest
at a rate per annum equal to the Floating Rate in effect from time
to time plus 2% per annum, and (iii) the LC Fee
described in the first sentence of Section 2.20.4 shall be
increased to a rate per annum equal to the Applicable Margin for
Eurodollar Loans in effect from time to time plus 2% per
annum; provided that, during the continuance of a Default
under Section 7.2, 7.6 or 7.7, the interest rates set forth in
clauses (i) and (ii) above and the increase in the LC Fee
set forth in clause (iii) above shall be applicable without
any election or action on the part of the Agent, any LC Issuer or
any Lender.
2.12.
Method of
Payment . All payments of the
Obligations hereunder shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the Agent at the
Agent’s address specified pursuant to Article XIII, or
at any other Lending Installation of the Agent specified in writing
by the Agent to the Borrower, by 12:00 noon (Chicago time) on the
date when due and shall (except with respect to repayments of Swing
Line Loans, and except in the case of Reimbursement Obligations for
which any LC Issuer has not been fully indemnified by the Lenders,
or as otherwise specifically required hereunder) be applied ratably
by the Agent among the Lenders. Each payment delivered to the
Agent for the account of any Lender shall be delivered promptly by
the Agent to such Lender in the same type of funds that the Agent
received at its address specified pursuant to Article XIII or
at any Lending Installation specified in a notice received by the
Agent from such Lender. Each reference to the Agent in this
Section 2.12 shall also be deemed to refer, and shall apply
equally, to the LC Issuers in the case of payments required to be
made by the Borrower to the LC Issuers pursuant to
Section 2.20.6.
2.13.
Noteless
Agreement; Evidence of Indebtedness . (i) Each Lender
shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Revolving Loan made by such Lender from time to
time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
27
(ii)
The Agent shall
also maintain accounts in which it will record (a) the date
and the amount of each Revolving Loan made hereunder, the Type
thereof and the Interest Period (in the case of a Eurodollar
Advance) with respect thereto, (b) the amount of any principal
or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (c) the original stated
amount of each Facility LC and the amount of LC Obligations
(including specifying Reimbursement Obligations) outstanding at any
time, (d) the effective date and amount of each Assignment
Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 12.3, (e) the amount of any sum
received by the Agent hereunder from the Borrower and each
Lender’s share thereof, and (f) all other appropriate
debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and
interest.
(iii)
The entries
maintained in the accounts maintained pursuant to paragraphs
(i) and (ii) above shall be prima facie evidence
(absent manifest error) of the existence and amounts of the
Obligations therein recorded; provided, however, that
the failure of the Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of
the Borrower to repay the Obligations in accordance with their
terms.
(iv)
Any Lender may
request that its Revolving Loans or, in the case of the Swing Line
Lender, the Swing Line Loans, be evidenced by a promissory note in
substantially the form of Exhibit D with appropriate changes
for notes evidencing Swing Line Loans (a “Note”).
In such event, the Borrower shall prepare, execute and deliver to
such Lender such Note payable to the order of such Lender or its
registered assigns. Thereafter, the Revolving Loans evidenced
by such Note and interest thereon shall at all times (prior to any
assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein, except
to the extent that any such Lender subsequently returns any such
Note for cancellation and requests that such Revolving Loans once
again be evidenced as described in paragraphs (i) and
(ii) above.
2.14.
Telephonic
Notices . The Borrower hereby
authorizes the Lenders and the Agent to extend, convert or continue
Advances, effect selections of Types of Advances and to transfer
funds based on telephonic notices made by any person or persons the
Agent or any Lender in good faith believes to be acting on behalf
of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices
and Conversion/Continuation Notices to be given
telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, signed by an Authorized Officer,
if such confirmation is requested by the Agent or any Lender, of
each telephonic notice. If the written confirmation differs
in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.15.
Interest
Payment Dates; Interest and Fee Basis . Interest accrued on
each Floating Rate Advance shall be payable in arrears on each
Payment Date, commencing with the first such date to occur after
the Restatement Effective Date, on any date on which the Floating
Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Interest Period,
on any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest
accrued
28
on each
Eurodollar Advance having an Interest Period longer than three
(3) months shall also be payable on the last day of each
three-month interval during such Interest Period. LC Fees and
all other fees hereunder and interest on Eurodollar Advances shall
be calculated for actual days elapsed on the basis of a 360-day
year. Interest on Floating Rate Advances shall be calculated
for actual days elapsed on the basis of a 365/366-day year.
Interest on Swing Line Loans shall be calculated on a basis agreed
to by the Swing Line Lender and the Borrower. Interest shall
be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to
12:00 noon (Chicago time) at the place of payment. If any
payment of principal of or interest on an Advance, any fees or any
other amounts payable to the Agent or any Lender hereunder shall
become due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in
computing interest, fees and commissions in connection with such
payment. In addition, on the Restatement Effective Date, the
Borrower shall pay to the Agent for the ratable account of the
lenders then party to the Existing Credit Agreement the accrued and
unpaid interest under the Existing Credit Agreement through the
Restatement Effective Date.
2.16.
Notification
of Advances, Interest Rates, Prepayments and Commitment Reductions;
Availability of Loans . Promptly after
receipt thereof, the Agent will notify each Lender of the contents
of each Aggregate Commitment reduction notice, Borrowing Notice,
Swing Line Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. Promptly after
notice from the applicable LC Issuer, the Agent will notify each
Lender of the contents of each request for issuance of a Facility
LC hereunder. The Agent will notify the Borrower and each
Lender of the interest rate applicable to each Eurodollar Advance
promptly upon determination of such interest rate and will give the
Borrower and each Lender prompt notice of each change in the
Alternate Base Rate. Not later than 2:00 p.m. (Chicago
time) on each Borrowing Date, each Lender shall make available its
Revolving Loan or Revolving Loans in funds immediately available in
Chicago to the Agent at its address specified pursuant to
Article XIII. The Agent will promptly make the funds so
received from the Lenders available to the Borrower at the
Agent’s aforesaid address in an account maintained and
designated by the Borrower.
2.17.
Lending
Installations . Each Lender may book
its Revolving Loans and its participation in any LC Obligations and
the LC Issuers may book the Facility LCs issued by it at any
Lending Installation selected by such Lender or LC Issuer, as
applicable, and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such
Lending Installation and the Revolving Loans, Facility LCs,
participations in LC Obligations and any Notes issued hereunder
shall be deemed held by each Lender or LC Issuer, as applicable,
for the benefit of any such Lending Installation. Each Lender
and LC Issuer may, by written notice to the Agent and the Borrower
in accordance with Article XIII, designate replacement or
additional Lending Installations through which Revolving Loans will
be made by it or Facility LCs will be issued by it and for whose
account Revolving Loan payments or payments with respect to
Facility LCs are to be made. In addition, each such Lender
that books its Revolving Loans and its participation in any LC
Obligations at any Lending Installation and each LC Issuer that
books the Facility LCs issued by it at any Lending Installation as
provided in this Section
29
2.17,
(i) shall keep a register for the registration relating to
each such Revolving Loan, LC Obligation and Facility LC, as
applicable, specifying such Lending Installation’s name,
address and entitlement to payments of principal and interest or
any other payments with respect to such Revolving Loan, LC
Obligation and Facility LC, as applicable, and each transfer
thereof and the name and address of each transferee and
(ii) shall collect, prior to the time such Lending
Installation receives payment with respect to such Revolving Loans,
LC Obligations and Facility LCs, as applicable as the case may be,
from each such Lending Installation, the appropriate forms,
certificates, and statements described in Section 3.5 (and
updated as required by Section 3.5) as if Lending Installation
were a Lender under Section 3.5.
2.18.
Non
-
Receipt of
Funds by the Agent . Unless the Borrower
or a Lender, as the case may be, notifies the Agent prior to the
date on which it is scheduled to make payment to the Agent of
(i) in the case of a Lender, the proceeds of a Revolving Loan
or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that
it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made
such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day for the first
three days and, thereafter, the interest rate applicable to the
relevant Revolving Loan or (y) in the case of payment by the
Borrower, the interest rate applicable to the relevant Revolving
Loan.
2.19.
Replacement of
Lender . If (i) the
Borrower is required pursuant to Section 3.1, 3.2 or 3.5 to
make any additional payment to any Lender or if any Lender’s
obligation to make or continue, or to convert Floating Rate
Advances into, Eurodollar Advances shall be suspended pursuant to
Section 3.3, (ii) any Lender becomes insolvent and its
assets become subject to a receiver, liquidator, trustee, custodian
or other Person having similar powers, (iii) any Lender
refuses to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement requiring the
consent of all Lenders (or all affected Lenders) pursuant to
Section 8.2 and the same have been approved by the Required
Lenders, or (iv) any Lender defaults on its obligation to make
available its Pro Rata Share of any Advance or to fund its Pro Rata
Share of any unreimbursed payment as required by this Agreement (or
such Lender has notified the Borrower and the Agent in writing that
it does not intend to comply with is obligations under this
Agreement) (any Lender in clauses (i) through (iv) above
being an “Affected Lender”), the Borrower may elect to
terminate or replace the Commitment of such Affected Lender,
provided that no Default or Unmatured Default shall have
occurred and be continuing at the time of such termination or
replacement unless the same shall be waived in connection with such
termination or replacement, and provided further
that, concurrently with such termination or replacement,
(a) if the Affected Lender is being replaced, another bank or
other entity which is reasonably satisfactory to the Borrower and
the Agent shall agree, as of such date, to purchase for cash the
Outstanding Credit Exposure of such Affected Lender pursuant to an
Assignment Agreement substantially in the form of Exhibit C
and to become a Lender for all purposes under this Agreement and to
assume all obligations of such Affected
30
Lender to be
terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, (b) in the case
of replacement, the replacement Lender shall pay to the Affected
Lender an amount equal to the sum of (1) an amount equal to
the principal of, and all accrued interest on, all outstanding
Credit Exposure of such Affected Lender and (2) an amount
equal to all accrued but unpaid fees owing to such Affected Lender
under this Agreement, and, to the extent not paid by the purchasing
Lender, the Borrower shall pay to such Affected Lender in
immediately available funds on the day of such replacement (x) all
interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrower hereunder to and including the date
of termination, including without limitation payments due to such
Affected Lender under Sections 3.1, 3.2 and 3.5, and (y) an amount,
if any, equal to the payment which would have been due to such
Affected Lender on the day of such replacement under
Section 3.4 had the Revolving Loans of such Affected Lender
been prepaid on such date rather than sold to the replacement
Lender, in each case to the extent not paid by the purchasing
Lender, and (c) if the Affected Lender is being terminated,
the Borrower shall pay to such Affected Lender an amount equal to
the sum of (1) an amount equal to the principal of, and all
accrued interest to an including the date of termination on, all
outstanding Credit Exposure of such Affected Lender plus
(2) an amount equal to all accrued but unpaid fees to an
including the date of termination owing to such Affected Lender
under this Agreement plus (3) all amounts due to such
Affected Lender under Sections 3.1, 3.2 and 3.5 and any amount due
to such Affected Lender under Section 3.4.
2.20.
Facility
LCs .
2.20.1
Issuance . The LC Issuers hereby agree, on the terms
and conditions set forth in this Agreement, to issue standby
letters of credit in Dollars (each, together with each letter of
credit issued or deemed to be issued pursuant to the Existing
Credit Agreement and outstanding on the Restatement Effective Date,
a “Facility LC”) and to renew, extend, increase,
decrease or otherwise modify each Facility LC
(“Modify,” and each such action, a
“Modification”), from time to time from and including
the Restatement Effective Date and prior to the Facility
Termination Date upon the request of the Borrower; provided
that immediately after each such Facility LC is issued or Modified,
(i) the aggregate amount of the outstanding LC Obligations
shall not exceed $90,000,000 and (ii) the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later
than the earlier of (x) the fifth Business Day prior to the
Facility Termination Date and (y) one year after its issuance;
provided that any Facility LC with a one-year tenor may
provide for the renewal thereof for additional one year periods
(which, subject to the next succeeding proviso, may extend beyond
the date referred to in clause (x) above); provided ,
however , that, subject to the terms of
Section 2.20.11, on or before the 10th day prior to the
Facility Termination Date the Borrower may request and the LC
Issuers hereby agree to issue Facility LCs with (or to Modify
Facility LCs to have) an expiry date on or after the Facility
Termination Date but not later than the twelve-month anniversary of
the Facility Termination Date.
2.20.2
Participations . Upon (a) the Restatement
Effective Date with respect to each Facility LC issued and
outstanding under the Existing Credit Agreement and (b) the
issuance or Modification by the applicable LC Issuer of each other
Facility LC in
31
accordance with
this Section 2.20, such LC Issuer shall be deemed, without
further action by any party hereto, to have unconditionally and
irrevocably sold to each Lender, and each Lender shall be deemed,
without further action by any party hereto, to have unconditionally
and irrevocably purchased from such LC Issuer, a participation in
such Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.20.3
Notice . Subject to Section 2.20.1, the Borrower
shall give the applicable LC Issuer notice prior to 10:00 a.m.
(Chicago time) at least three (3) Business Days prior to the
proposed date of issuance or Modification of each Facility LC (or
such shorter period as shall be agreed to by the Borrower, the
Agent and the LC Issuer), specifying the beneficiary, the proposed
date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC
and the nature of the transactions proposed to be supported
thereby. The applicable LC Issuer shall promptly notify the
Agent, and, upon issuance only, the Agent shall promptly notify
each Lender, of the contents thereof and of the amount of such
Lender’s participation in such Facility LC. The
issuance or Modification by any LC Issuer of any Facility LC shall,
in addition to the conditions precedent set forth in
Article IV (the satisfaction of which such LC Issuer shall
have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be reasonably satisfactory to such LC
Issuer and that the Borrower shall have executed and delivered such
application agreement and/or such other instruments and agreements
relating to such Facility LC as such LC Issuer shall have
reasonably requested (each, a “Facility LC
Application”). In the event of any conflict between the
terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
2.20.4
LC Fees . The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective
Pro Rata Shares, a letter of credit fee at a per annum rate equal
to the Applicable Margin for Eurodollar Loans in effect from time
to time on the average daily undrawn amount under such Facility LC,
such fee to be payable in arrears on each Payment Date. The
Borrower shall also pay to each LC Issuer for its own account (x)
in arrears on each Payment Date, a per annum fronting fee in an
amount agreed upon between the Borrower and such LC Issuer
multiplied by the average daily undrawn amount under such
Facility LC, and (y) documentary and processing charges in
connection with the issuance, or Modification cancellation,
negotiation, or transfer of, and draws under Facility LCs in
accordance with the applicable LC Issuer’s standard
schedule for such charges as in effect from time to
time. Each fee described in this Section 2.20.4 shall
constitute an “LC Fee”.
2.20.5
Administration; Reimbursement by Lenders . Upon
receipt from the beneficiary of any Facility LC of any demand for
payment under such Facility LC, the applicable LC Issuer shall
notify the Agent and the Agent shall promptly notify the Borrower
and each other Lender as to the amount to be paid by such LC Issuer
as a result of such demand and the proposed payment date to such
beneficiary (the “LC Payment Date”); provided,
however, that the failure of such LC Issuer to so notify the
Borrower shall not in any manner affect the obligations of the
Borrower to reimburse such LC Issuer pursuant to
section 2.20.6. The responsibility of each LC Issuer to
the Borrower
32
and each Lender
shall be only to determine that the documents (including each
demand for payment) delivered under each Facility LC issued by such
LC Issuer in connection with such presentment shall be in
conformity in all material respects with such Facility LC.
Each LC Issuer shall endeavor to exercise the same care in the
issuance and administration of the Facility LCs issued by such LC
Issuer as it does with respect to letters of credit in which no
participations are granted, it being understood that in the absence
of any gross negligence or willful misconduct by the applicable LC
Issuer, each Lender shall be unconditionally and irrevocably liable
without regard to the occurrence of any Default or any condition
precedent whatsoever, to reimburse such LC Issuer on demand for
(i) such Lender’s Pro Rata Share of the amount of each
payment made by such LC Issuer under each Facility LC issued by
such LC Issuer to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.20.6 below, plus
(ii) interest on the foregoing amount to be reimbursed by such
Lender, for each day from the date of the applicable LC
Issuer’s demand for such reimbursement (or, if such demand is
made after 12:00 noon (Chicago time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the
amount to be reimbursed by it, at a rate of interest per annum
equal to the Federal Funds Effective Rate for the first three
(3) days and, thereafter, at a rate of interest equal to the
rate applicable to Floating Rate Advances. In the event any
LC Issuer shall receive any payment from any Lender pursuant to
this Section 2.20.5, the Agent (acting for this purpose solely
as agent of the Borrower) (i) shall keep a register for the
registration relating to each such Reimbursement Obligation,
specifying such participating Lender’s name, address and
entitlement to payments with respect to such participating
Lender’s share of the principal amount of any Reimbursement
Obligation and interest thereon with respect to its respective
participations, and each transfer thereof and the name and address
of each transferee and (ii) shall collect, prior to the time
such participating Lender receives payment with respect to such
participation, from each such participating Lender the appropriate
forms, certificates, and statements described in Section 3.5
(and updated as required by Section 3.5) as if such
participating Lender were a Lender under
Section 3.5.
2.20.6
Reimbursement by Borrower . The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC
Issuers on or before the first Business Day after the applicable LC
Payment Date (the “LC Reimbursement Date”) for any
amounts paid by any LC Issuer upon any drawing under any Facility
LC issued by such LC Issuer, without presentment, demand, protest
or other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from asserting
any claim for direct (but not consequential) damages suffered by
the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of
the applicable LC Issuer in determining whether a request presented
under any Facility LC issued by it complied with the terms of such
Facility LC or (ii) the applicable LC Issuer’s failure
to pay under any Facility LC issued by it after the presentation to
it of a request strictly complying with the terms and conditions of
such Facility LC. Unless the Borrower shall have otherwise
notified the Agent and the applicable LC Issuer prior to 12:00 noon
(Chicago time) on the LC Reimbursement Date with respect to any
Facility LC, the Borrower shall be deemed to have elected to borrow
Revolving Loans from the Lenders, as of such LC Reimbursement Date,
equal in amount to the amount of the unpaid Reimbursement
Obligations with respect to such Facility LC. Subject to
the
33
satisfaction of
the applicable conditions precedent set forth in Article IV,
such Revolving Loans shall be made as of the LC Reimbursement Date
automatically and without notice. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of which Advance
shall be used to repay such Reimbursement Obligation. If, for
any reason, the Borrower fails to repay a Reimbursement Obligation
on applicable LC Reimbursement Date and, for any reason, the
Lenders are unable to make or have no obligation to make Revolving
Loans, then such Reimbursement Obligation shall bear interest,
payable on demand, for each day until paid at a rate per annum
equal to (x) the rate applicable to Floating Rate Advances for such
day if such day falls on or before the applicable LC Reimbursement
Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC
Reimbursement Date. Each LC Issuer will pay to each Lender
ratably in accordance with its Pro Rata Share all amounts received
by it from the Borrower for application in payment, in whole or in
part, of the Reimbursement Obligation in respect of any Facility LC
issued by such LC Issuer, but only to the extent such Lender has
made payment to such LC Issuer in respect of such Facility LC
pursuant to Section 2.20.5.
2.20.7
Obligations Absolute . The Borrower’s
obligations under this Section 2.20 shall be absolute and
unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower
may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees
with the LC Issuers and the Lenders that the LC Issuers and the
Lenders shall not be responsible for, and the Borrower’s
Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid,
fraudulent or forged, or any dispute between or among the Borrower,
any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or
of any of its Affiliates against the beneficiary of any Facility LC
or any such transferee. No LC Issuer shall be liable for any
error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in
connection with any Facility LC. The Borrower agrees that any
action taken or omitted by any LC Issuer or any Lender under or in
connection with each Facility LC and the related drafts and
documents, if done without gross negligence or willful misconduct,
shall be binding upon the Borrower and shall not put any LC Issuer
or any Lender under any liability to the Borrower. Nothing in
this Section 2.20.7 is intended to limit the right of the
Borrower to make a claim against any LC Issuer for damages as
contemplated by the proviso to the first sentence of
Section 2.20.6.
2.20.8
Actions of LC Issuers . Each LC Issuer shall be
entitled to rely, and shall be fully protected in relying, upon any
Facility LC, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other
experts selected by such LC Issuer. Each LC Issuer shall be
fully justified in failing or refusing to take any
action
34
under this
Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems
appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other
provision of this Section 2.20, each LC Issuer shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.20.9
Indemnification . The Borrower hereby agrees to
indemnify and hold harmless each Lender, each LC Issuer and the
Agent, and their respective directors, officers, agents and
employees from and against any and all claims and damages, losses,
liabilities, reasonable costs or expenses which such Lender, such
LC Issuer or the Agent may incur (or which may be claimed against
such Lender, such LC Issuer or the Agent by any Person whatsoever)
by reason of or in connection with the issuance, execution and
delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, reasonable costs or expenses which any LC Issuer may
incur by reason of or in connection with (i) the failure of
any other Lender to fulfill or comply with its obligations to such
LC Issuer hereunder (but nothing herein contained shall affect any
rights the Borrower may have against any defaulting Lender) or
(ii) by reason of or on account of such LC Issuer issuing any
Facility LC which specifies that the term “Beneficiary”
included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any
drawing by any such successor Beneficiary be accompanied by a copy
of a legal document, satisfactory to such LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the
Borrower shall not be required to indemnify any Lender, any LC
Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, (x) caused
by the willful misconduct or gross negligence of the applicable LC
Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of
such Facility LC or (y) caused by any LC Issuer’s failure to
pay under any Facility LC issued by such LC Issuer after the
presentation to it of a request strictly complying with the terms
and conditions of such Facility LC, or (z) with respect to taxes
and amounts relating thereto (payments with respect to which shall
be governed solely and exclusively by Section 3.5).
Nothing in this Section 2.20.9 is intended to limit the
obligations of the Borrower under any other provision of this
Agreement.
2.20.10
Lenders ’
Indemnification
. Each
Lender shall, ratably in accordance with its Pro Rata Share,
indemnify each LC Issuer, its affiliates and their respective
directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such
indemnitees’ gross negligence or willful misconduct or the
applicable LC Issuer’s failure to pay under any Facility LC
issued by such LC Issuer after the presentation to it of a request
strictly complying with the terms and conditions of such Facility
LC) that such indemnitees may suffer or incur
35
in connection
with this Section 2.20 or any action taken or omitted by such
indemnitees hereunder.
2.20.11
Facility LC Collateral Account . The Borrower agrees
that it will, upon the reasonable request of the Agent or the
Required Lenders and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to the
LC Issuers or the Lenders in respect of any Facility LC, maintain a
special collateral account pursuant to arrangements satisfactory to
the Agent (the “Facility LC Collateral Account”) at the
Agent’s office at the address specified pursuant to
Article XIII, in the name of the Borrower but under the sole
dominion and control of the Agent, for the benefit of the Lenders
and the LC Issuers, and in which the Borrower shall have no
interest other than as set forth in Section 8.1. The
Borrower hereby pledges, assigns and grants to the Agent, on behalf
of and for the ratable benefit of the Lenders and the LC Issuers, a
security interest in all of the Borrower’s right, title and
interest in and to all funds which may from time to time be on
deposit in the Facility LC Collateral Account to secure the prompt
and complete payment and performance of the Secured
Obligations. The Agent will invest any funds on deposit from
time to time in the Facility LC Collateral Account in Cash
Equivalent Investments as directed by the Borrower (in
