Exhibit 10.25
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN
AGREEMENT
Dated as of November 17, 2004
by and among
WASTE CONNECTIONS, Inc.
AND ITS SUBSIDIARIES
(the "Borrowers")
THE LENDING INSTITUTIONS PARTY
HERETO
(the "Lenders")
and
BANK OF AMERICA, N.A.,
as Administrative Agent
and
DEUTSCHE BANK TRUST
COMPANY AMERICAS ,
as Syndication Agent
With
BANC OF AMERICA SECURITIES LLC.
and
DEUTSCHE BANK SECURITIES INC.
,
as Joint Lead Arrangers
and
WELLS FARGO BANK, CALYON NEW YORK
BRANCH
and UNION BANK of CALIFORNIA,
as Documentation Agents
1.
DEFINITIONS AND RULES OF INTERPRETATION 1
1.1.
Definitions
1
1.2.
Rules of Interpretation
21
2.
THE REVOLVING CREDIT FACILITY
22
2.1.
Commitment to Lend
22
2.2.
Reduction of Total Revolving Credit Commitment
23
2.3.
Evidence of Indebtedness; Revolving Credit Notes
23
2.4.
Interest on Revolving Credit Loans 24
2.5.
Requests for Revolving Credit Loans
24
2.6.
Funds for Revolving Credit Loans 25
2.7.
Maturity of the Revolving Credit Loans
26
2.8.
Mandatory Repayments of the Revolving Credit Loans
26
2.9.
Optional Prepayments or Repayments of Revolving Credit Loans
26
2.10.
Swing Line Loans; Settlements
27
3.
LETTERS OF CREDIT
29
3.1.
Letter of Credit Commitments
29
3.1.1.
Commitment to Issue Letters of Credit
29
3.1.2.
Letter of Credit Applications
30
3.1.3. Terms
of Letters of Credit 31
3.1.4.
Reimbursement Obligations of Lenders
31
3.1.5.
Participations of Lenders 32
3.1.6.
Existing Letters of Credit 32
3.1.7. Auto
Extension Letters of Credit
32
3.2.
Reimbursement Obligation of the Borrowers 33
3.3.
Letter of Credit Payments 34
3.4.
Obligations Absolute
34
3.5.
Role of Issuing Lender
35
3.6.
Letter of Credit Amounts 36
3.7.
Applicability of ISP
36
4.
THE TERM LOAN FACILITY
36
4.1.
Commitment to Lend
36
4.2.
Evidence of Indebtedness; Term Notes
36
4.3.
Scheduled Installment Payments of Principal of Term Loan
37
4.4.
Mandatory Prepayments of Loans 37
4.4.1.
Mandatory Prepayments 37
4.4.2.
Application of Payments 37
4.5.
Optional Prepayment of Term Loan 38
4.6.
Interest on Term Loan
38
4.7.
Pari Passu Treatment of Term Loans
38
5.
FEES, PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL LIABILITY
39
5.1.
Fees
39
5.2.
Payments
39
5.3.
Computations
41
5.4.
Capital Adequacy
41
5.5.
Certificate
42
5.6.
Interest on Overdue Amounts
42
5.7.
Interest Limitation
42
5.8.
Election of Eurodollar Rate; Notice of Election; Interest Periods;
Minimum Amounts
42
5.9.
Eurodollar Indemnity
43
5.10.
Illegality; Inability to Determine Eurodollar Rate
44
5.11.
Additional Costs, Etc
44
5.12.
Replacement of Lenders
45
5.13.
Concerning Joint and Several Liability of the Borrowers
46
6.
REPRESENTATIONS AND WARRANTIES 49
6.1.
Corporate Authority
49
6.2.
Governmental Approvals 50
6.3.
Title to Properties; Leases 50
6.4.
Financial Statements; Solvency
50
6.5.
No Material Changes, Etc 50
6.6.
Permits, Franchises, Patents, Copyrights, Etc 51
6.7.
Litigation
51
6.8.
No Materially Adverse Contracts, Etc
51
6.9.
Compliance With Other Instruments, Laws, Etc
51
6.10.
Tax Status
51
6.11.
No Event of Default
51
6.12.
Holding Company and Investment Company Acts
51
6.13.
Absence of Financing Statements, Etc
52
6.14.
Employee Benefit Plans
52
6.15.
Use of Proceeds
53
6.15.1. General
53
6.15.2. Regulations U and
X
53
6.15.3. Ineligible
Securities
53
6.16.
Environmental Compliance 53
6.17.
Perfection of Security Interests
54
6.18.
Transactions with Affiliates
54
6.19.
Subsidiaries
54
6.20.
True Copies of Charter and Other Documents
54
6.21.
Disclosure
55
6.22.
Capitalization
55
6.23.
Foreign Assets Control Regulations, Etc
55
6.24.
Guarantees of Excluded Subsidiaries
56
7.
AFFIRMATIVE COVENANTS OF THE BORROWERS
56
7.1.
Punctual Payment
56
7.2.
Maintenance of Offices
56
7.3.
Records and Accounts
56
7.4.
Financial Statements, Certificates and Information
56
7.5.
Legal Existence and Conduct of Business
58
7.6.
Maintenance of Properties 58
7.7.
Insurance
58
7.8.
Taxes
59
7.9.
Inspection of Properties, Books, and Contracts
59
7.10.
Compliance with Laws, Contracts, Licenses and Permits; Maintenance
of Material Licenses and Permits 59
7.11.
Environmental Indemnification
60
7.12.
Further Assurances
60
7.13.
Notice of Potential Claims or Litigation
60
7.14.
Notice of Certain Events Concerning Insurance and Environmental
Claims
60
7.15.
Notice of Default
61
7.16.
New Subsidiaries 61
7.17.
Employee Benefit Plans
62
7.18.
Notice of Permitted Debt Offerings 62
8.
CERTAIN NEGATIVE COVENANTS OF THE BORROWERS
62
8.1.
Restrictions on Indebtedness
62
8.2.
Restrictions on Liens
63
8.3.
Restrictions on Investments
65
8.4.
Merger, Consolidation and Disposition of Assets
67
8.4.1.
Mergers and Acquisitions 67
8.4.2.
Disposition of Assets
68
8.5.
Sale and Leaseback
68
8.6.
Restricted Payments and Redemptions
69
8.7.
Employee Benefit Plans
69
8.8.
Negative Pledges 70
8.9.
Business Activities
70
8.10.
Transactions with Affiliates
70
8.11.
Subordinated Debt
70
9.
FINANCIAL COVENANTS
71
9.1.
Leverage Ratio
71
9.2.
Senior Funded Debt to EBITDA
71
9.3.
Interest Coverage Ratio
71
9.4.
Consolidated Net Worth 71
9.5.
Capital Expenditures
71
10.
CLOSING CONDITIONS 71
10.1.
Corporate Action 71
10.2.
Loan Documents, Etc
72
10.3.
Certificate of Secretary; Good Standing Certificates
72
10.4.
Validity of Liens
72
10.5.
Perfection Certificates and UCC Search Results
72
10.6.
Certificates of Insurance
72
10.7.
Legal Opinions
73
10.8.
Environmental Permit Certificate
73
10.9.
Payment of Fees
73
10.10. Closing
Certificate
73
10.11. Compliance
Certificate
73
10.12.
Subordinated Debt
73
10.13. Payoff
73
10.14. Closing
Documentation, Etc
74
11.
CONDITIONS OF ALL LOANS
74
11.1.
Representations True; No Event of Default 74
11.2.
Performance; No Event of Default 74
11.3.
No Legal Impediment
74
11.4.
Governmental Regulation 74
11.5.
Proceedings and Documents
74
12.
COLLATERAL SECURITY
75
13.
EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT
76
13.1.
Events of Default and Acceleration 76
13.2.
Termination of Commitments
79
13.3.
Remedies
79
13.4.
Distribution of Collateral Proceeds 79
14.
SETOFF 80
15.
THE ADMINISTRATIVE AGENT 81
15.1.
Appointment and Authorization
81
15.2.
Rights as a Lender
81
15.3.
Exculpatory Provisions
82
15.4.
Reliance by Administrative Agent 83
15.5.
Delegation of Duties
83
15.6.
Resignation of Administrative Agent
83
15.7.
Non-Reliance on Administrative Agent and Other Lenders
84
15.8.
No Other Duties, Etc
84
15.9.
Closing Documentation, Etc
84
15.10. Payments
85
15.10.1. Payments to Administrative
Agent
85
15.10.2. Distribution by
Administrative Agent
85
15.10.3. Delinquent Lenders
85
15.11. Holders of
Notes 86
15.12. Indemnity
86
15.13.
Notification of Defaults and Events of Default
86
15.14. Duties in
the Case of Enforcement 86
15.15.
Administrative Agent May File Proofs of Claim
87
15.16. Duties of
Syndication Agent and Documentation Agents
88
16.
EXPENSES AND INDEMNIFICATION
88
16.1.
Expenses
88
16.2.
Indemnification 89
16.3.
Survival 89
17.
SURVIVAL OF COVENANTS, ETC. 89
18.
ASSIGNMENTS AND PARTICIPATION
90
19.
PARTIES IN INTEREST
94
20.
NOTICES, ETC
94
20.1.
Notices Generally 94
20.2.
Electronic Communications
95
21.
TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION
95
21.1.
Prior Notification
96
21.2.
Other
96
22.
MISCELLANEOUS
96
23.
ENTIRE AGREEMENT, ETC
97
24.
WAIVER OF JURY TRIAL 97
25.
GOVERNING LAW
97
26.
Consents, Amendments, Waivers, Etc
98
27.
Borrowers' Representative 99
28.
Severability
99
29.
EXISTING Credit Agreement
100
29.1.
Existing Credit Agreement Superseded
100
29.2.
Interest and Fees under Superseded Agreement
100
30.
USA PATRIOT ACT
100
Schedules & Exhibits
Exhibit
A
Form of Loan and Letter of Credit Request
Exhibit
B
Form of Compliance Certificate
Exhibit
C
Form of Environmental Compliance Certificate
Exhibit
D
Form of Assignment and Acceptance
Exhibit
E Form of Joinder Agreement
Exhibit
F Form of Instrument of Accession
Schedule 1
Lenders; Addresses; Commitment Percentages
Schedule 2
Subsidiaries
Schedule 3.1
Letters of Credit
Schedule 4.3
Term Loan Installment Payments
Schedule 6.7
Litigation
Schedule 6.16
Environmental Matters
Schedule 6.18
Transactions with Affiliates
Schedule 7.7
Self Insurance Programs
Schedule 8.2(j) Scheduled
Contracts
Schedule 8.2(k) Existing
Liens
Schedule 8.3
Existing Investments
AMENDED AND RESTATED
REVOLVING
CREDIT AND TERM LOAN
AGREEMENT
This AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of
November 17, 2004 (the " Credit Agreement "), by and
among (a) WASTE CONNECTIONS, INC. , a Delaware
corporation (the " Parent "), the Subsidiaries of the Parent
identified on Schedule 2 hereto (collectively with
the Parent, the " Borrowers "), (b) BANK OF
AMERICA, N.A. , a national banking association having a place
of business at 100 Federal Street, Boston, Massachusetts 02110
(acting in its individual capacity, " Bank of
America "), and the other banks and lending institutions
which are identified on Schedule 1 attached hereto
(collectively, the " Lenders "), (c) BANK OF
AMERICA, N.A. , as administrative agent for the Lenders (the "
Administrative Agent "), and (d) DEUTSCHE BANK
TRUST COMPANY AMERICAS , as syndication agent for the Lenders
(the " Syndication Agent ").
W I T N E S
S E T H :
WHEREAS,
the Borrowers and the
Administrative Agent are party to that certain Amended and Restated
Revolving Credit Agreement dated as of October 22, 2003, (as
amended and in effect as of the date hereof, the " Existing
Credit Agreement "); and
WHEREAS
, the Borrowers have requested,
among other things, additional financing and the Lenders are
willing to provide such financing on the terms and conditions set
forth herein;
NOW, THEREFORE,
in consideration of the foregoing,
the mutual covenants and agreements set forth herein below, and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that on
the Closing Date, the Existing Credit Agreement shall be amended
and restated in its entirety by this Credit Agreement, the terms of
which are as follows:
-
-
DEFINITIONS AND RULES OF
INTERPRETATION.
-
-
Definitions .
The
following terms shall have the meanings set forth in this 1 or
elsewhere in the provisions of this Credit Agreement referred to
below:
Acceding Lender . See 18(g).
Accountants . An independent accounting firm of national
standing reasonably acceptable to the Required Lenders and the
Administrative Agent.
Administrative Agent . See Preamble.
Administrative Agent's Office . The
Administrative Agent's office located at 100 Federal Street,
Boston, Massachusetts 02110, or such other location as the
Administrative Agent may designate from time to time
Affected Lender . See 5.12.
Affiliate . Any Person that would be considered to be an
affiliate of any other Person under Rule 144(a) of the Rules and
Regulations of the Securities and Exchange Commission, as in effect
on the date hereof, if such other Person were issuing
securities.
Applicable Base Rate Margin . The
applicable margin with respect to Base Rate Loans as set forth in
the Pricing Table.
Applicable Commitment Rate . The applicable
rate with respect to the Commitment Fee as set forth in the Pricing
Table.
Applicable Eurodollar Margin
. The applicable margin with respect
to Eurodollar Loans as set forth in the Pricing Table.
Applicable Laws . See 7.10.
Applicable L/C Margin . The applicable margin with respect to the
Letter of Credit Fee as set forth in the Pricing Table.
Approved Fund . 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.
Assignment and Acceptance
. See 18(a).
Balance Sheet Date . December 31, 2003.
Bank
of America . See
Preamble.
Base
Rate. For any day a
fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus one half of one percent (0.5%) and (b) the rate of
interest in effect for such day as publicly announced from time to
time by Bank of America as its "prime rate." The "prime rate" is a
rate set by Bank of America based upon various factors including
Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the date
specified in the public announcement of such change.
Base Rate Loans . Loans bearing
interest calculated by reference to the Base Rate.
Borrowers . The Parent and the Subsidiaries other than the
Excluded Subsidiaries.
Business Day . Any day on which banking
institutions in Boston, Massachusetts and New York, New York are
open for the transaction of banking business.
Capital Assets . Fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such
as patents, copyrights, trademarks, franchises and goodwill);
provided that Capital Assets shall not include (a)
any item customarily charged directly to expense or depreciated
over a useful life of twelve (12) months or less in accordance with
generally accepted accounting principles , or (b) any item
obtained through an acquisition permitted by 8.4 hereof.
Capital Expenditures . Amounts paid or indebtedness incurred by the
Borrowers and their Subsidiaries in connection with (i) the
purchase or lease of Capital Assets that would be required to be
capitalized and shown on the balance sheet of such Person in
accordance with GAAP or (ii) the lease of any assets by the
Borrowers or any Subsidiary as lessee under any Synthetic Lease to
the extent that such assets would have been Capital Assets had the
Synthetic Lease been treated for accounting purposes as a
Capitalized Lease.
Capital Stock . Any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
Capitalized Leases . Leases under which any Borrower is the lessee
or obligor, the discounted future rental payment obligations under
which are required to be capitalized on the balance sheet of the
lessee or obligor in accordance with GAAP.
CERCLA . See definition of Release.
Certified . With respect to the financial statements of
any Person, such statements as audited by a firm of independent
auditors, whose report expresses the opinion, without
qualification, that such financial statements present fairly the
financial position of such Person.
CFO .
See 7.4(b).
Closing Date . The date on which the conditions
precedent set forth in 10 are satisfied.
Code .
The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral . All of the property, rights and interests of
the Borrowers that are or are intended to be subject to the
security interests created by the Security Documents.
Commitment . With respect to each Revolving Credit Lender,
the amount determined by multiplying such Lender's Commitment
Percentage by the Total Revolving Credit Commitment, as the same
may be increased or reduced from time to time pursuant to the
provisions hereof, or if such Commitment is terminated pursuant to
the provisions hereof, zero.
Commitment Fee . See 5.1.
Commitment Percentage . With respect to each
Revolving Credit Lender, the percentage set forth on
Schedule 1 hereto as such Lender's percentage
of the Total Revolving Credit Commitment (subject to adjustment in
accordance with 18).
Compliance Certificate . See 7.4(c).
Consolidated or consolidated . With reference to any
term defined herein, shall mean that term as applied to the
accounts of the Parent and its Subsidiaries consolidated in
accordance with GAAP.
Consolidated Earnings Before Interest and Taxes
or EBIT . For any
period, the Consolidated Net Income (or Deficit) of the Borrowers
determined in accordance with GAAP, plus (a) interest
expense, (b) income taxes, (c) non-cash stock compensation charges,
to the extent that such charges were deducted in determining
Consolidated Net Income (or Deficit), all as determined in
accordance with GAAP, (d) minority interest expense, (e) non-cash
extraordinary non- recurring writedowns or writeoffs of assets,
including non-cash losses on the sale of assets outside the
ordinary course of business, (f) any losses associated with the
extinguishment of Indebtedness of the Borrowers, (g) special
charges relating to the termination of a Swap Contract and (h) any
accrued settlement payments in respect of any Swap Contract owing
by the Borrowers minus (i) non-cash extraordinary gains on
the sale of assets to the extent included in Consolidated Net
Income (or Deficit) and (j) any accrued settlement payments in
respect of any Swap Contact payable to the Borrowers.
Consolidated Earnings Befor e Interest, Taxes, Depreciation, and Amortization or
EBITDA . For any period
(without duplication), (a) EBIT plus the depreciation
expense and amortization expense, to the extent that each was
deducted in determining Consolidated Net Income (or Deficit),
determined in accordance with GAAP, plus (b) the
depreciation expense and amortization expense (without duplication)
of any company whose EBIT was included under clause (c) hereof,
plus (c) EBIT for the prior twelve (12) months of companies
acquired by the Borrowers during the respective reporting period
(without duplication) provided that (i) the financial
statements of such acquired companies have been audited for the
period sought to be included by an independent accounting firm
satisfactory to the Administrative Agent, or (ii) the
Administrative Agent consents to such inclusion after being
furnished with other acceptable financial statements, and
provided further that such acquired EBIT may be
further adjusted to add-back non-recurring private company expenses
which are discontinued upon acquisition (such as owner's
compensation), as approved by the Administrative Agent.
Simultaneously with the delivery of the financial statements
referred to in (i) and (ii) above, the CFO of the Parent shall
deliver to the Administrative Agent a Compliance Certificate and
appropriate documentation certifying the historical operating
results, adjustments and balance sheet of the acquired
company.
Consolidated Net Income (or
Deficit) . The consolidated net income (or deficit) of the
Borrowers after deduction of all expenses, taxes, and other proper
charges, determined in accordance with GAAP.
Consolidated Net Worth . The excess of Consolidated Total Assets over
Consolidated Total Liabilities, less , to the extent
otherwise includable in the computation of Consolidated Net Worth,
any subscriptions receivable.
Consolidated Total Assets . All assets of the
Borrowers determined on a consolidated basis in accordance with
GAAP.
Consolidated Total Funded Debt . With
respect to the Borrowers and any Receivables SPV, the sum, without
duplication, of (a) the aggregate amount of Indebtedness of the
Borrowers on a consolidated basis, relating to (i) the borrowing of
money or the obtaining of credit, including the issuance of notes,
bonds, debentures or similar debt instruments, (ii) in respect of
any Capitalized Leases and Synthetic Leases, (iii) the non-
contingent deferred purchase price of assets and companies
(typically known as holdbacks) to the extent recognized as a
liability of any Borrower in accordance with GAAP, but excluding
(A) short- term trade payables incurred in the ordinary course of
business and (B) the Pierce County Put, and (iv) any unpaid
reimbursement obligations with respect to letters of credit
outstanding, but excluding any contingent obligations with respect
to letters of credit outstanding; plus (b) Indebtedness of
the type referred to in clause (a) of another Person who is not a
Borrower guaranteed by the Borrowers.
Consolidated Total Interest Expense
. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrowers
during such period on all Indebtedness of the Borrowers outstanding
during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease and including commitment
fees, agency fees, facility fees, balance deficiency fees and
similar fees or expenses in connection with the borrowing of money,
but (a) excluding (i) any amortization and other non-cash
charges or expenses incurred during such period to the extent
included in determining consolidated interest expense, including
without limitation, non-cash amortization of deferred debt
origination and issuance costs and amortization of accumulated
other comprehensive income, (ii) all amounts associated with the
unwinding or termination of any Swap Contract, (iii) any accrued
settlement payments in respect of any Swap Contract payable to the
Borrowers and (iv) to the extent included as an item of interest
expense, any premium paid to repurchase or redeem any of the
Convertible Subordinated Notes, and (b) including any
accrued settlement payments in respect of any Swap Contract owing
by the Borrowers.
Consolidated Total Liabilities
. All liabilities of the Borrowers
and any Receivables SPV determined on a consolidated basis in
accordance with GAAP and classified as such on the consolidated
balance sheet of the Borrowers.
Conversion Request . A notice given by the Borrowers to the
Administrative Agent of the Borrowers' election to convert or
continue a Loan in accordance with 5.8.
Convertible Subordinated Notes . The 2022
Convertible Subordinated Notes or any replacement of the 2022
Convertible Subordinated Notes effectuated in accordance with 8.11
herein.
Credit Agreement . See Preamble.
Debtor Relief Laws . The Bankruptcy Code
of the United States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights
of creditors generally.
D
efault . See 13.
Delinquent Lender . See 15.5.3.
Disposal ( or Disposed ). See definition of
Release.
Distribution . The declaration or payment of any dividend or
distribution on or in respect of any shares of any class of Capital
Stock (other than dividends or other distributions payable solely
in shares of Capital Stock); the purchase, redemption, or other
retirement of any shares of any class of Capital Stock, directly or
indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as
such; or any other distribution on or in respect of any shares of
any class of Capital Stock.
Dollars or $ . Dollars in lawful currency of the
United States of America.
Drawdown Date . The date on which any Loan is made
or is to be made, and the date on which any Loan is converted or
continued in accordance with 5.8, or the date that any draft or
other form of demand for payment is honored with respect to a
Letter of Credit.
Eligible Assignee . Any of (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and (ii)
unless a Default or an Event of Default has occurred and is
continuing, the Parent (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrowers, or their
Subsidiaries or any of their Affiliates.
Eligible Foreign Lender . (a) Any commercial bank organized under the
laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the " OECD "), or a
political subdivision of any such country, provided
that such bank is acting through a branch or agency located
in the country in which it is organized or another country which is
also a member of the OECD; or (b) the central bank of any country
which is a member of the OECD.
Employee Benefit Plan . Any employee
benefit plan within the meaning of 3(3) of ERISA maintained or
contributed to by the Borrowers or any ERISA Affiliate, other than
a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws . See 6.16(a).
EPA .
See 6.16(b).
ERISA . The Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
ERISA Affiliate . Any Person which is treated
as a single employer with the Borrowers under 414 of the
Code.
ERISA Reportable Event . A reportable
event with respect to a Guaranteed Pension Plan within the meaning
of 4043 of ERISA and the regulations promulgated
thereunder.
Eurocurrency Reserve Percentage . The maximum
percentage (expressed as a decimal rounded upward to the nearest
1/100 of 1%) as determined by Administrative Agent which is in
effect during any relevant period, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities") of a member bank in such system.
Eurodollar Business Day . Any day on which
commercial banks are open for international business (including
dealings in Dollar deposits) in London or such other eurodollar
interbank market as may be selected by the Administrative Agent in
its sole discretion acting in good faith.
Eurodollar Interest Determination Date
. For any Interest Period, the date two Eurodollar Business Days
prior to the first day of such Interest Period.
Eurodollar Loans . Revolving Credit Loans and all or
any portion of the Term Loan bearing interest calculated by
reference to the Eurodollar Rate.
Eurodollar Rate . For any Interest Period with
respect to a Eurodollar Loan denominated in Dollars, the interest
rate per annum determined by the Administrative Agent by dividing
(the resulting quotient rounded upward to the nearest 1/100 of 1%
per annum) (a) the rate of interest determined by the
Administrative Agent (which determination shall be conclusive
absent manifest error) to be the average of the London interbank
offered rates of interest per annum for U.S. Dollars set forth on
Moneyline Telerate Page 3750 or such other
display page on the Moneyline Telerate system as may replace such
page to evidence the average of rates quoted by banks designated by
the British Bankers' Association (or appropriate successor or, if
the British Bankers' Association or its successor ceases to provide
such quotes, a comparable replacement determined by the
Administrative Agent) at 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period for an amount
comparable to such Eurodollar Loan and having a borrowing date and
a maturity comparable to such Interest Period or if the applicable
display page shall not be available, the rate per annum determined
by the Administrative Agent as the rate of interest at which
deposits in the relevant currency for delivery on the first day of
such Interest Period in same day funds in the approximate amount of
the Eurodollar Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch (or other Bank of
America branch or Affiliate) to major banks in the London or other
offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, by (b) a number equal to
1.00 minus the Eurocurrency Reserve Percentage. The Eurodollar Rate
may also be expressed by the following formula:
Moneyline Telerate Page 3750 quoted by British
Eurodollar Rate = Bankers' Association or
appropriate successor
1.00 - Eurocurrency Reserve Percentage
Event of Default . See 13.
Evergreen Option . The option of the Parent to
acquire up to 299.5 shares of Class A Common Stock of Evergreen
National Indemnity Company, an Ohio property and casualty insurance
company d/b/a Evergreen/UNI (" Evergreen "), up to 2,088.5
shares of Class B Common Stock of Evergreen and up to one-half
share of Class C Common Stock of Evergreen on or before March 31,
2008.
Evergreen Shares . Collectively, the 299.5 shares of Class A
Common Stock of Evergreen, 2,088.5 shares of Class B Common Stock
of Evergreen and one-half share of the Class C Common Stock of
Evergreen currently owned by the Parent and pledged to
Evergreen.
Excluded Assets . The containers, vehicles, equipment and
inventory in which the Lenders are precluded from taking a security
interest pursuant to any Scheduled Contract during the term of such
Scheduled Contract.
Excluded Subsidiaries . Each of the Subsidiaries
listed on Schedule 2 hereto under the heading "Excluded
Subsidiaries".
Existing Credit Agreement
. See preamble.
Federal Funds Rate . For any day, the rate
per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day as published
by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day will be the average rate (rounded
upward if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transaction as determined by
the Administrative Agent.
Fees .
Collectively, the Commitment Fee, the Letter of Credit Fees, the
fees payable pursuant to the fee letters, and any other fees
payable hereunder or under the other Loan Documents.
Financial Affiliate . A subsidiary of the bank
holding company controlling any Lender, which subsidiary is
engaging in any of the activities permitted by 4(e) of the Bank
Holding Company Act of 1956 (12 U.S.C. 1843).
F
inancial Letter of Credit
. A Letter of Credit where the event
which triggers payment is financial, such as the failure to pay
money, and not performance-related, such as failure to ship a
product or provide a service, as set forth in greater detail in the
letter dated March 30, 1995 from the Board of Governors of the
Federal Reserve System or in any applicable directive or letter
ruling of the Board of Governors of the Federal Reserve System
issued subsequent thereto.
Fund .
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.
g
enerally accepted accounting
principles or GAAP . Generally accepted
accounting principles in the United States of America. Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that if the
Borrowers notify the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the
effect of any change occurring after December 31, 2003 in GAAP or
in the application thereof on the operation of such provision (or
if the Administrative Agent notifies the Borrowers that the
Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become
effective until such provision has been amended in accordance
herewith.
Governmental Authority . The government of the United
States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court , central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the
European Union or the European Central Bank).
Guaranteed Pension Plan . Any employee
pension benefit plan within the meaning of 3(2) of ERISA maintained
or contributed to by the Borrowers or any ERISA Affiliate, the
benefits of which are guaranteed on termination in full or in part
by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
H
azardous Substances . Any hazardous waste, as
defined by 42 U.S.C. 6903(5), any hazardous substances as defined
by 42 U.S.C. 9601(14), any pollutant or contaminant as defined by
42 U.S.C. 9601(33) and any toxic substances, oil or hazardous
materials or other chemicals or substances regulated by any
Environmental Laws.
Ind
ebtedness
. As to any Person and whether
recourse is secured by or is otherwise available against all or
only a portion of the assets of such Person and whether or not
contingent, but without duplication:
-
-
-
-
-
every obligation of such Person for
money borrowed,
-
every obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition
of property, assets or businesses,
-
every reimbursement obligation of
such Person with respect to letters of credit, bankers' acceptances
or similar facilities issued for the account of such
Person,
-
the net present value (using the
Base Rate as the discount rate) of every obligation of such Person
issued or assumed as the deferred purchase price of property or
services (including securities repurchase agreements but excluding
(A) trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or which are
being contested in good faith and (B) contingent purchase price
obligations solely to the extent that the contingency upon which
such obligation is conditioned has not yet occurred),
-
every obligation of such Person
under any Capitalized Lease,
-
every obligation of such Person
under any Synthetic Lease,
-
all sales by such Person of (A)
accounts or general intangibles for money due or to become due, (B)
chattel paper, instruments or documents creating or evidencing a
right to payment of money or (C) other receivables (collectively, "
Receivables "), whether pursuant to a purchase facility or
otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a
disposition of defaulted Receivables for collection and not as a
financing arrangement, and together with any obligation of such
Person to pay any discount, interest, fees, indemnities, penalties,
recourse, expenses or other amounts in connection therewith,
provided, however , that sales referred to in clauses (B)
and (C) shall not constitute Indebtedness to the extent that such
sales are non-recourse to such Person;
-
every obligation of such Person (an
"equity related purchase obligation") to purchase, redeem, retire
or otherwise acquire for value any Capital Stock of any class
issued by such Person, or any rights measured by the value of such
Capital Stock,
-
every obligation of such Person
under any forward contract, futures contract, swap, option or other
financing agreement or arrangement (including, without limitation,
caps, floors, collars and similar agreements), the value of which
is dependent upon interest rates, currency exchange rates,
commodities or other indices,
-
every obligation in respect of
Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent that such
Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the
extent that the terms of such Indebtedness provide that such Person
is not liable therefor and such terms are enforceable under
applicable law,
-
every obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic
effect of guaranteeing or otherwise acting as surety for, any
obligation of a type described in any of clauses (i) through (x)
(the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (A) to
purchase or pay (or advance or supply funds for the purchase of)
any security for the payment of such primary obligation, (B) to
purchase property, securities or services for the purpose of
assuring the payment of such primary obligation, or (C) to
maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary
obligation.
The
"amount" or "principal amount" of any Indebtedness at any time of
determination represented by (v) any Indebtedness, issued at a
price that is less than the principal amount at maturity thereof,
shall be the amount of the liability in respect thereof determined
in accordance with generally accepted accounting principles, (w)
any Capitalized Lease shall be the principal component of the
aggregate of the rentals obligation under such Capitalized Lease
payable over the term thereof that is not subject to termination by
the lessee, (x) any sale of Receivables shall be the amount of
unrecovered capital or principal investment of the purchaser (other
than the Borrowers) thereof, excluding amounts representative of
yield or interest earned on such investment, (y) any Synthetic
Lease shall be the stipulated loss value, termination value or
other equivalent amount and (z) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price
thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price.
Ineligible Securities . Securities which may not be
underwritten or dealt in by member banks of the Federal Reserve
System under Section 16 of the Banking Act of 1993 (12 U.S.C.
24, Seventh), as amended.
Instrument of Accession . See
18(g).
Interest Payment Date . (a) As to any Base
Rate Loan, the last Business Day of each calendar quarter with
respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes
the Drawdown Date of such Base Rate Loan; (b) as to any Eurodollar
Loan in respect of which the Interest Period is (i) 3 months or
less, the last day of such Interest Period and (ii) more than 3
months, the date that is 3 months from the first day of such
Interest Period and, in addition, the last day of such Interest
Period; and (c) with respect to all Revolving Credit Loans and
Swing Line Loans, the Revolving Credit Maturity Date.
Interest Period . With respect to each Revolving
Credit Loan or all or any relevant portion of the Term Loan, (a)
initially, the period commencing on the Drawdown Date of such Loan
and ending on the last day of one of the periods set forth below,
as selected by the Borrowers in a Loan Request or as otherwise
required by the terms of this Credit Agreement (i) for any Base
Rate Loan, the last day of the calendar quarter; and (ii) for any
Eurodollar Loan, one (1), two (2), three (3) or six (6) months; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Revolving Credit Loan
or all or such portion of the Term Loan and ending on the last day
of one of the periods set forth above, as selected by the Borrowers
in a Conversion Request; provided that all of the foregoing
provisions relating to Interest Periods are subject to the
following:
-
-
-
-
-
-
if any Interest Period with respect
to a Eurodollar Loan would otherwise end on a day that is not a
Eurodollar Business Day, that Interest Period shall be extended to
the next succeeding Eurodollar Business Day unless the result of
such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Eurodollar Business Day;
-
if any Interest Period with respect
to a Base Rate Loan would end on a day that is not a Business Day,
that Interest Period shall end on the next succeeding Business
Day;
-
if the Borrowers shall fail to give
notice as provided in 2.5, the Borrowers shall be deemed to have
requested a conversion of the affected Eurodollar Loan to a Base
Rate Loan and the continuance of all Base Rate Loans as Base Rate
Loans on the last day of the then current Interest Period with
respect thereto;
-
any Interest Period relating to any
Eurodollar Loan that begins on the last Eurodollar Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Eurodollar Business Day of a calendar
month; and
-
any Interest Period that would
otherwise extend beyond the Revolving Credit Loan Maturity Date (if
comprising a Revolving Credit Loan) or the Term Loan Maturity Date
(if comprising the Term Loan or a portion thereof) shall end on the
Revolving Credit Loan Maturity Date or (as the case may be) the
Term Loan Maturity Date.
ISP .
With respect to any Letter of Credit, the "International Standby
Practices 1998" published by the Institute of International Banking
Law & Practice (or such later version thereof as may be in
effect at the time of issuance).
Interim Balance Sheet Date . June
30, 2004.
IRB Letters of Credit . See
3.1(a).
Issuer Documents . With respect to any Letter of
Credit, the Letter of Credit Application, and any other document,
agreement and instrument entered into by the Issuing Lender and the
Borrowers or in favor of the Issuing Lender and relating to any
such Letter of Credit.
Issuing Lender . Bank of America.
Joint Lead Arrangers . Banc of America
Securities LLC and Deutsche Bank Securities Inc.
L/C Supported IRBs . Industrial
revenue bonds or solid waste disposal bonds issued by or at the
request of the Borrowers which are backed by IRB Letters of Credit
issued hereunder.
Lenders . The lending institutions listed on
Schedule 1 hereto and any other Person who
becomes an assignee of any rights and obligations of a Lender or
becomes a Lender pursuant to 4.7 or 18.
Let
ter of Credit Applications .
Letter of Credit Applications in such form as may be agreed upon by
the Borrowers and the Administrative Agent from time to time which
are entered into pursuant to 3 hereof, as such Letter of Credit
Applications are amended, varied or supplemented from time to
time.
Letter of Credit Fee . See
5.1(b).
Letter of Credit Participation .
See 3.1.4.
Letters of Credit . See 3.1.1.
Letter of Credit Expiration
Date . The day that is thirty days prior to the Revolving
Credit Maturity Date (or if such day is not a Business Day, the
next preceding Business Day).
Letter of Credit Obligations . As
of any date, the sum of the Maximum Drawing Amount as of such date
and all Unpaid Reimbursement Obligations as of such date. For
purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 3.6. For all purposes of this
Credit Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the
International Standby Practices, such Letter of Credit shall be
deemed to be "outstanding" in the amount so remaining available to
be drawn.
Leverage Ratio . See 9.1.
Loan and Letter of Credit
Request . See 2.5.
Loan Documents . This Credit Agreement, the
Notes, the Letter of Credit Applications, the Letters of Credit,
the Security Documents, and the Post-Closing Agreement, each as
amended and in effect from time to time.
Loans . Collectively, the Revolving Credit Loans, the
Swing Line Loans and, to the extent applicable, the Term
Loan.
Material Adverse Effect . With respect to
any event or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration or governmental
investigation or proceeding):
-
-
-
-
-
a material adverse effect on the
business, properties, prospects, condition (financial or
otherwise), assets, operations or income of the Borrowers;
or
-
any impairment of the validity,
binding effect or enforceability of this Credit Agreement or any of
the other Loan Documents, any impairment of the material rights,
remedies or benefits available to the Administrative Agent or any
Lender under any Loan Document or any impairment of the attachment,
perfection or priority of the Liens created by the Security
Documents.
In
determining whether any individual event could reasonably be
expected to result in a Material Adverse Effect, notwithstanding
that such event does not of itself have such effect, a Material
Adverse Effect shall be deemed to have occurred if the cumulative
effect of such event and all other then existing events could
reasonably be expected to result in a Material Adverse
Effect.
Maximum Drawing Amount . The maximum
aggregate amount from time to time that the beneficiaries may draw
under outstanding Letters of Credit.
Maximum Rate . With respect to each Lender, the maximum
lawful nonusurious rate of interest (if any) which under Applicable
Law such Lender may charge the Borrowers on the Loans and other
Obligations from time to time.
Multiemployer Plan . Any multiemployer plan within the
meaning of 3(37) of ERISA maintained or contributed to by the
Borrowers or any ERISA Affiliate.
Net Cash Proceeds . The gross cash
proceeds received by a Person in respect of any asset sale,
less the sum of (a) all reasonable out-of-pocket fees,
commissions and other reasonably and customary direct expenses
actually incurred in connection with such asset sale, including the
amount of any transfer or documentary taxes required to be paid by
such Person in connection with such asset sale, and (b) the
aggregate amount of cash so received by such Person which is
required to be used to retire (in whole or in part) any
Indebtedness (other than under the Loan Documents) of such Person
permitted by this Credit Agreement that was secured by a lien or
security interest permitted by this Credit Agreement having
priority over the liens and security interests (if any) of the
Administrative Agent (for the benefit of the Administrative Agent
and the Lenders) with respect to such assets transferred and which
is required to be repaid in whole or in part (which repayment, in
the case of any other revolving credit arrangement or multiple
advance arrangement, reduces the commitment thereunder) in
connection with such asset sale.
Net Financing Proceeds . With respect
to any equity or debt issuance (other than an equity issuance made
in connection with the conversion of existing Indebtedness to
equity), the net cash proceeds received by such Person for such
equity or debt issuance after deduction of all reasonable and
customary transaction expenses (including, without limitation,
underwriting discounts and commissions) actually incurred in
connection with such a sale or other issuance.
Non-U.S. Lender . See 5.2(d).
Note
s .
Collectively, the Revolving Credit Notes, the Swing Line Notes and
the Term Notes.
Oblig ations
. All indebtedness, obligations and
liabilities of the Borrowers to any of the Lenders or the
Administrative Agent, individually or collectively, existing on the
date of this Credit Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan
Documents, or under any Swap Contract between the Borrowers and any
Lender (or affiliate thereof), or in respect of any of the Loans
made or Reimbursement Obligations incurred or the Letters of Credit
or any other instrument at any time evidencing any
thereof.
Parent . See Preamble.
Participant . See 18(b).
PBGC .
The Pension Benefit Guaranty Corporation created by 4002 of ERISA
and any successor entity or entities having similar
responsibilities.
Performance Letter of Credit
. A Letter of Credit which is not a
Financial Letter of Credit.
Permitted Debt Offering . Any issuance of
Indebtedness by the Parent (other than an issuance of Subordinated
Debt made in connection with the prepayment, purchase or
replacement of the 2022 Convertible Subordinated Notes effectuated
in accordance with 8.11 herein), provided that such
Indebtedness (a) is unsecured, (b) is issued pursuant to
documentation containing market terms, and (c) does not exceed
$200,000,000 in the aggregate.
Permitted Debt Offering Maturity
Event . The date which is ninety-one (91) days prior to the
first date on which principal payments in an aggregate amount in
excess of $50,000,000 in respect of Permitted Debt Offerings are
required to be made by the Borrowers.
Permitted Liens . See 8.2.
Permitted Receivables Transactions
. Any sale or sales of, and/or
securitization of, or transfer of, any Receivables of the Borrowers
pursuant to which (a) the Receivables SPV realizes aggregate net
proceeds of not more than $75,000,000 at any one time outstanding,
including, without limitation, any revolving purchase(s) of
Receivables where the maximum aggregate uncollected purchase price
(exclusive of any deferred purchase price) for such Receivables at
any time outstanding does not exceed $75,000,000, (b) the
Receivables shall be transferred or sold to the Receivables SPV at
fair market value or at a market discount, and shall not exceed
$100,000,000 in the aggregate at any one time and (c) obligations
arising therefrom shall be non-recourse to the Borrower and its
Subsidiaries (other than the Receivables SPV).
Person . Any individual, corporation, limited liability
company, partnership, trust, unincorporated association, business,
or other legal entity, and any government or any governmental
agency or political subdivision thereof.
Pierce County LLC . Pierce County
Recycling, Composting and Disposal, LLC, a Washington limited
liability company.
Pierce County Management . Pierce County
Landfill Management, Inc., a Delaware corporation.
Pierce County Put . The put option of the
minority interest holders in both Pierce County LLC and Pierce
County Management, the exercise of which would obligate the Parent
to purchase the additional interests of both Pierce County LLC and
Pierce County Management for cash.
Post-Closing Agreement . The Post-Closing Agreement to be dated as of
the Closing Date between the Borrowers and the Administrative
Agent.
Post-Closing Facility Increase
. See 18(g).
P r icing Table
|
Level
|
Leverage
Ratio
|
Applicable
Eurodollar
Margin
(per
annum)
|
Applicable Base Rate
Margin
( per annum)
|
Applicable
L/C Margin
(per
annum)
|
Applicable
Commitment
Rate
(per
annum)
|
|
I.
|
Greater than or equal
to 3.50:1
|
2.00%
|
0.50%
|
2.00%
|
0.50%
|
|
II.
|
Greater than or equal
to 3.00:1 but less than 3.50:1
|
1.625%
|
0.125%
|
1.625%
|
0.375%
|
|
III.
|
Greater than or equal
to 2.50:1 but less than 3.00:1
|
1.25%
|
0.00%
|
1.25%
|
0.30%
|
|
IV.
|
Greater than or equal
to 2.00:1 but less than 2.50:1
|
1.00%
|
0.00%
|
1.00%
|
0.25%
|
|
VI.
|
Less than 2.00:1
|
0.875%
|
0.00%
|
0.875%
|
0.20%
|
Any
change in the applicable margin shall become effective on the first
day after receipt by the Lenders of financial statements delivered
pursuant to 7.4(a) or (b) which indicate a change in the Leverage
Ratio. If at any time such financial statements are not delivered
within the time periods specified in 7.4(a) or (b), the applicable
margin shall be the highest rate set forth in the respective column
of the Pricing Table, subject to adjustment upon actual receipt of
such financial statements. Notwithstanding the above, the pricing
for the period commencing on the Closing Date until the date on
which the Borrowers deliver to the Administrative Agent a
Compliance Certificate for the fiscal quarter ending March 31, 2005
shall be no lower than as set forth for Level IV in the table
above.
Pro
Forma Interest
Expense . The annual interest obligations at the current
rates of interest on existing Indebtedness of the Borrowers and the
Indebtedness to be assumed or incurred in connection with an
acquisition.
RCRA .
See definition of Release.
Real Property . All real property heretofore,
now, or hereafter owned or leased by the Borrowers.
Receivables SPV . Any one or more direct or indirect
wholly-owned Subsidiaries of the Parent formed for the sole purpose
of engaging in Permitted Receivables Transactions, and which engage
in no business activities other than those related to Permitted
Receivables Transactions.
Reference Period . As of any date of determination,
the period of four (4) consecutive fiscal quarters of the Borrowers
ending on such date, or if such date is not a fiscal quarter end
date, the period of four (4) consecutive fiscal quarters most
recently ended (in each case treated as a single accounting
period).
Register . See 18(d).
Reimbursement Obligation . The Borrowers' obligation to reimburse the
Administrative Agent and the Revolving Credit Lenders on account of
any drawing under any Letter of Credit as provided in
3.2.
Related Parties . With respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
Release . Shall have the meaning specified in the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. 9601 et seq . ("
CERCLA ") and the term " Disposal " (or "
Disposed ") shall have the meaning specified in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et
seq . (" RCRA ") and regulations promulgated
thereunder; provided that in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply as of the effective date
of such amendment and provided further , to the extent that
the laws of a state wherein the property lies establishes a meaning
for "Release" or "Disposal" which is broader than specified in
either CERCLA or RCRA, such broader meaning shall apply.
Replacement Lender . See 5.11.
Replacement Notice . See 5.11.
Required Lenders . As of any date, any combination
of Lenders the sum of whose aggregate Revolving Credit Commitments
and outstanding principal amount of the Term Loan constitute at
least fifty-one percent (51%) of the sum of the Total Revolving
Credit Commitment and the total outstanding principal amount of the
Term Loan or, if the Total Revolving Credit Commitment has been
terminated or if the Revolving Credit Loan Maturity Date has
occurred, any combination of Lenders holding at least fifty-one
percent (51%) of the total outstanding principal amount of the
Loans and the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations of Letters of Credit on such date.
Reserve Rate . The rate, expressed as a decimal,
at which the Lenders would be required to maintain reserves under
Regulation D of the Board of Governors of the Federal Reserve
System (or any subsequent or similar regulation relating to such
reserve requirements) against "Eurocurrency Liabilities" (as such
term is defined in Regulation D), or against any other category of
liabilities which might be incurred by the Lenders to fund
Eurodollar Loans, if such liabilities were outstanding.
Restricted Payment . Any (a) Distribution, (b) payment or
prepayment by any Borrower or any Subsidiary to (i) such Borrowers'
or such Subsidiaries shareholders (or other equity holders), in
each case, other than to another Borrower, or (ii) to any Affiliate
of such Borrower or such Subsidiary or any Affiliate of such
Borrower's or such Subsidiary's shareholders (or other equity
holders), in each case, other than to another Borrower or (c)
derivatives or other transactions with any financial institution,
commodities or stock exchange or clearinghouse (a "
Derivatives Counterparty ") obligating such Borrower
or such Subsidiary to make payments to such Derivatives
Counterparty as a result of any change in market value of any
Capital Stock of such Borrower or such Subsidiary.
Revolving Credit Lenders . The Lenders set
forth on Schedule 1 as Revolving Credit Lenders,
acting in their role as makers of Revolving Credit Loans or as
participants with respect to Letters of Credit, together with any
other Person who becomes an assignee of any rights and obligations
of a Revolving Credit Lender pursuant to 18.
Revolving Credit Loans . Revolving credit loans made or to be made by
the Revolving Credit Lenders to the Borrowers pursuant to
2.
Revolving Credit Maturity
Date . The earlier of (i)
October 22, 2009 and (ii) the occurrence of the Permitted Debt
Offering Maturity Event.
Revolving Credit Notes . To the extent requested by any Revolving
Credit Lender, the promissory notes of the Borrowers evidencing the
Revolving Credit Loans made or to be made by such Lender
hereunder.
Revolving Credit Note Record . A
record with respect to a Revolving Credit Note.
Scheduled Contracts . The certain contracts referenced in Schedule
8.2(j) hereto, as the same may be amended from time to
time.
Securities Pledge Agreement. The Amended and
Restated and Consolidated Master Securities Pledge Agreement, to be
dated as of the Closing Date, as amended and in effect from time to
time, by and between certain of the Borrowers and the
Administrative Agent, pursuant to which such Borrowers pledge 100%
of the Capital Stock of the Subsidiaries (or in the case of a
foreign Subsidiary, 65% of the same) to the Administrative Agent
for the benefit of the Lenders.
Security Agreement . The Amended and Restated
Security Agreement among the Borrowers and the Administrative
Agent, to be dated as of the Closing Date, as amended and in effect
from time to time.
Security Documents . The Security Agreement, the
Securities Pledge Agreement, and any other instruments or documents
evidencing or perfecting the Administrative Agent's (or collateral
agent's) lien on the assets of the Borrowers for the benefit of the
Lenders.
Senior Funded Debt . At any time of
determination, an amount equal to Consolidated Total Funded Debt
minus the aggregate principal amount of Subordinated Debt
outstanding as of such date.
Settlement . The making or receiving of payments, in
immediately available funds, by the Lenders to or from the
Administrative Agent in accordance with 2.10 hereof to the extent
necessary to cause each such Lender's actual share of the
outstanding amount of the Revolving Credit Loans to be equal to
such Lender's Commitment Percentage of the outstanding amount of
such Revolving Credit Loans, in any case when, prior to such
action, the actual share is not so equal.
Settlement Amount . See 2.10(b).
Settlement Date . See 2.10(b).
Settling Lender . See 2.10(b).
Subordinated Debt . The Convertible
Subordinated Notes, in an aggregate principal amount not to exceed
$175,000,000 issued pursuant to the 2022 Notes Indenture and any
other unsecured Indebtedness of the Borrowers that is expressly
subordinated and made junior to the payment and performance in full
of the Obligations, and evidenced as such by an instrument
containing subordination provisions (i) substantially similar
to those contained in the 2022 Notes Indenture or
(ii) otherwise on terms acceptable to the Administrative Agent
and the Required Lenders.
Subsidiary . Any corporation, association, trust, or other
business entity of which any Borrower shall at any time own
directly, or indirectly through a Subsidiary or Subsidiaries, at
least a majority of the outstanding Capital Stock or other interest
entitled to vote generally.
Swap
Contracts . Any agreement
(including any master agreement and any agreement, whether or not
in writing, relating to any single transaction) that is an interest
rate swap agreement, basis swap, forward rate agreement, commodity
swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement,
cross-currency rate swap agreement, swaption, currency option or
other similar agreement (including any option to enter into any of
the foregoing).
Swing Line Loan(s) . See 2.10(a).
Swing Line Note . See 2.10(a).
Syndication Agent . See preamble.
Synthetic Lease . Any lease treated as an operating lease under
generally accepted accounting principles and as a loan or financing
for U.S. income tax purposes.
Term Loan . To the extent applicable, the term
loan made or to be made by the Term Loan Lenders to the Borrowers
pursuant to 4 (which shall be in the original principal amount of
$0 on the Closing Date) and any increase or new Term Loan made in
accordance with 18(g),in each case as may be increased or reduced
from time to time pursuant to the provisions hereof.
Term Loan Amount . With respect to each
Term Lender, the amount set forth on Schedule 1 hereto
as the amount of such Term Lender's commitment to make a portion of
the Term Loan to the Borrowers, which amount shall be $0 as of the
Closing Date.
Term
Loan Lenders . The
Lenders holding a portion of the Term Loan as set forth on
Schedule 1 hereto together with (i) any other Person
who becomes an assignee of any rights and obligations of a Term
Loan Lender pursuant to 18, or (ii) any Acceding Lender who becomes
a Term Loan Lender pursuant to 18(g).
Term Loan Maturity Date . To the
extent applicable, a date to be determined, which date will occur
no earlier than the Revolving Credit Maturity Date.
Term
Loan Percentage . With
respect to each Term Loan Lender, the percentage set forth on
Schedule 1 (subject to adjustment in accordance with
18 hereof) as such Lender's percentage of the Term Loan.
Term Notes . See 4.2.
Term Note Record . A record with
respect to a Term Note.
Total Revolving Credit Commitment
. The sum of the Commitments of the Revolving Credit Lenders, which
shall equal $650,000,000 on the Closing Date, as the same may be
increased or reduced from time to time in accordance with this
Credit Agreement.
Unpaid Reimbursement Obligation . Any
Reimbursement Obligation for which the Borrowers do not reimburse
the Administrative Agent and the Lenders on the date specified in,
and in accordance with, 3.2.
2022 Convertible Subordinated
Notes . The Floating Rate Convertible Subordinated Notes due
2022 issued by the Parent pursuant to the Indenture, dated as of
April 30, 2002 between the Parent and State Street Bank & Trust
Company of California, N.A., as trustee, in an aggregate principal
amount not to exceed $175,000,000 plus interest as provided for in
the 2022 Notes Indenture, as such Convertible Subordinated Notes
may be amended, supplemented or otherwise modified or replaced from
time to time in accordance with 8.11 herein.
2022 Notes Indenture . The Indenture
dated as of April 30, 2002, between the Parent and State Street
Bank & Trust Company of California, N.A., as trustee, with
respect to the 2022 Convertible Subordinated Notes, as such
Indenture may be amended, supplemented or otherwise modified or
replaced from time to time in accordance with 8.11
herein.
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Ru
les of
Interpretation .
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A reference to any document or
agreement shall include such document or agreement as amended,
modified or supplemented from time to time in accordance with its
terms and the terms of this Credit Agreement.
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The singular includes the plural and
the plural includes the singular.
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A reference to any law includes any
amendment or modification to such law.
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A reference to any Person includes
its permitted successors and permitted assigns.
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Accounting terms capitalized but not
otherwise defined herein have the meanings assigned to them by
generally accepted accounting principles applied on a consistent
basis by the accounting entity to which they refer.
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The words "include," "includes" and
"including" are not limiting.
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All terms not specifically defined
herein or by generally accepted accounting principles, which terms
are defined in the Uniform Commercial Code as in effect in the
State of New York, have the meanings assigned to them
therein.
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Reference to a particular " " refers
to that section of this Credit Agreement unless otherwise
indicated.
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The words "herein," "hereof,"
"hereunder" and words of like import shall refer to this Credit
Agreement as a whole and not to any particular section or
subdivision of this Credit Agreement.
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Unless otherwise expressly
indicated, in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and
including."
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THE
REVOLVING CREDIT FACILITY .
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Commitment to Lend
.
Subject
to the terms and conditions set forth in this Credit Agreement,
each of the Revolving Credit Lenders
severally, but not jointly, agrees to lend to the Borrowers, and
the Borrowers may borrow, repay, and reborrow from time to time
from the Closing Date to the Revolving Credit Maturity Date, upon
notice by the Borrowers to the Administrative Agent given in
accordance with 2.5, such sums as are requested by the Borrowers up
to a maximum aggregate amount outstanding (after giving effect to
all amounts requested) at any one time equal to such Revolving
Credit Lender's Commitment minus such Revolving Credit
Lender's Commitment Percentage of the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations, provided
that the sum of the outstanding amount of the Revolving Credit
Loans plus the outstanding amount of the Swing Line Loans
plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total Revolving Credit
Commitment at such time. The Revolving Credit Loans shall be made
pro rata in accordance with each Revolving Credit Lender's
Commitment Percentage. Each request for a Loan hereunder shall
constitute a representation and warranty by the Borrowers that the
conditions set forth in 10 and 11, as the case may be, have been
satisfied on the date of such request.
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Reduction of Total Revolving Credit
Commitment .
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The Borrowers shall have the right
at any time and from time to time upon five (5) Business Days'
prior written notice to the Administrative Agent to reduce by
$5,000,000 or integral multiples of $1,000,000 in excess thereof,
or terminate entirely, the Total Revolving Credit Commitment,
whereupon the Commitments of the Revolving Credit Lenders shall be
reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or,
as the case may be, terminated. The Administrative Agent will
notify the Revolving Credit Lenders promptly after receiving any
notice of the Borrowers delivered pursuant to this 2.2.
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No reduction or termination of the
Commitments once made may be revoked; the portion of the
Commitments reduced or terminated may not be reinstated; and
amounts in respect of such reduced or terminated portion may not be
reborrowed.
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Evidence of Indebtedness; Revolving Credit
Notes .
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Loan Accounts
. Each Revolving Credit Lender shall
maintain in accordance with its usual practice an account or
accounts evidencing Indebtedness of the Borrowers to such Lender
resulting from each Revolving Credit Loan of such Lender from time
to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Credit
Agreement. The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Revolving Credit Loan
made hereunder and each Interest Period applicable thereto, (ii)
the amount of any principal or interest due and payable or to
become due and payable from the Borrowers to each Revolving Credit
Lender hereunder and (iii) both the amount of any sum received by
the Administrative Agent hereunder for the account of the Revolving
Credit Lenders and each Revolving Credit Lender's share thereof (if
any). The entries made in the accounts maintained by each Revolving
Credit Lender pursuant to this 2.3(a) (or any Revolving Credit Note
Record referred to below) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrowers therein recorded;
provided , however , that the failure of any
Revolving Credit Lender or the Administrative Agent to maintain any
such accounts or Revolving Credit Note Record, or any error
therein, shall not in any manner affect the obligation of the
Borrowers to repay (with applicable interest) the Revolving Credit
Loans made in accordance with the terms of this Credit
Agreement.
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Revolving Credit
Notes . Upon the
request of any Revolving Credit Lender, the Borrowers shall execute
and deliver to such Revolving Credit Lender a promissory note
(each, a " Revolving Credit Note "), which shall (i) be
payable to the order of such Revolving Credit Lender and be dated
the Closing Date (or, in the case of Revolving Credit Notes issued
after the Closing Date, be dated the date of the issuance thereof),
(ii) be in a stated principal amount equal to the Commitment of
such Revolving Credit Lender or, if less, the outstanding amount of
all Revolving Credit Loans made by such Lender, plus interest
thereon, as set forth in 2.4 herein, (iii) mature on the Revolving
Credit Loan Maturity Date, and (iv) be entitled to the benefits of
this Credit Agreement and the other Loan Documents. The Borrowers
irrevocably authorize each Revolving Credit Lender with a Revolving
Credit Note to make or cause to be made, at or about the time of
the Drawdown Date of any Revolving Credit Loan or at the time of
receipt of any payment of principal on such Lender's Revolving
Credit Note, an appropriate notation on such Lender's Revolving
Credit Note Record reflecting the making of such Revolving Credit
Loan or (as the case may be) the receipt of such payment. Each
Revolving Credit Lender holding a Revolving Credit Note will, prior
to any transfer of such Revolving Credit Note, endorse on the
reverse side thereof the outstanding principal amount of Revolving
Credit Loans evidenced thereby. Failure to make such notation or
any error in any such notation or endorsement shall not affect the
Borrowers' obligations in respect of such Revolving Credit
Loans.
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Interest on Revolving Credit
Loans . The
outstanding principal amount of the Revolving Credit Loans shall
bear interest at the rate per annum equal to (a) the Base Rate
plus the Applicable Base Rate Margin on Base Rate Loans or
(b) the Eurodollar Rate plus the Applicable Eurodollar
Margin on Eurodollar Loans. Interest shall be payable in respect of
each Revolving Credit Loan in arrears on each Interest Payment Date
with respect thereto.
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Requests for Revolving Credit
Loans . The
Borrowers shall give to the Administrative Agent written notice in
the form of Exhibit A hereto (or telephonic notice
confirmed by telecopy on the same Business Day in the form of
Exhibit A hereto) of each Revolving Credit Loan
requested hereunder (a "Loan and Letter of Credit Request") not
later than (a) 11:00 a.m. Boston time one
(1) Business Day prior to the proposed Drawdown Date of any
Base Rate Loan, or (b) 11:00 a.m. Boston time three
(3) Eurodollar Business Days prior to the proposed Drawdown
Date of any Eurodollar Loan. Each such notice shall be given by the
Borrowers and shall specify the principal amount of the Revolving
Credit Loan requested and shall include a current Loan and Letter
of Credit Request reflecting the aggregate amount of Revolving
Credit Loans and Swing Line Loans outstanding and the Maximum
Drawing Amount. Each Loan and Letter of Credit Request shall be
irrevocable and binding on the Borrowers and shall obligate the
Borrowers to accept the Revolving Credit Loan requested from the
Revolving Credit Lenders on the proposed Drawdown Date. Each of the
representations and warranties made by or on behalf of the
Borrowers to the Revolving Credit Lenders or the Administrative
Agent in this Credit Agreement or any other Loan Document shall be
true and correct in all material respects when made and shall, for
all purposes of this Credit Agreement, be deemed to be repeated on
and as of the date of the submission of any Loan and Letter of
Credit Request and on and as of the Drawdown Date of such Loan, or
the date of issuance of such Letter of Credit (except to the extent
of changes resulting from transactions contemplated or permitted by
this Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, or to the extent that such
representations and warranties expressly relate solely to an
earlier date). The Administrative Agent shall promptly notify each
Revolving Credit Lender of each Loan and Letter of Credit Request
received by the Administrative Agent hereunder.
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Funds
for Revolving Credit Loans .
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Not later than 1:00 p.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loan,
each of the Revolving Credit Lenders will make available to the
Administrative Agent, at the Administrative Agent's Office, in
immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Revolving Credit Loans.
Upon receipt from each Revolving Credit Lender of such amount, and
upon receipt of the documents required by 10 and 11 and the
satisfaction of the other conditions set forth therein, to the
extent applicable, the Administrative Agent will make available to
the Borrowers in immediately available funds the aggregate amount
of such Revolving Credit Loans made available to the Administrative
Agent by the Revolving Credit Lenders. The failure or refusal of
any Revolving Credit Lender to make available to the Administrative
Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Revolving Credit Lender
from its several obligation hereunder to make available to the
Administrative Agent the amount of such other Revolving Credit
Lender's Commitment Percentage of any requested Revolving Credit
Loans.
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The Administrative Agent may, unless
notified to the contrary by any Revolving Credit Lender prior to a
Drawdown Date, assume that such Lender has made available to the
Administrative Agent on such Drawdown Date the amount of such
Lender's Commitment Percentage of the Revolving Credit Loans to be
made on such Drawdown Date, and the Administrative Agent may (but
shall not be required to), in reliance upon such assumption, make
available to the Borrowers a corresponding amount. If any Revolving
Credit Lender makes available to the Administrative Agent such
amount on a date after such Drawdown Date, such Lender shall pay to
the Administrative Agent on demand an amount equal to the product
of (i) the average computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period,
times (ii) the amount of such Lender's Commitment Percentage
of such Revolving Credit Loans, times (iii) a fraction, the
numerator of which is the number of days that elapse from and
including such Drawdown Date to the date on which the amount of
such Lender's Commitment Percentage of such Revolving Credit Loans
shall become immediately available to the Administrative Agent, and
the denominator of which is 365. A statement of the Administrative
Agent submitted to such Revolving Credit Lender with respect to any
amounts owing under this paragraph shall be prima
facie evidence, absent manifest error, of the amount due and
owing to the Administrative Agent by such Lender. If the amount of
such Revolving Credit Lender's Commitment Percentage of such
Revolving Credit Loans is not made available to the Administrative
Agent by such Lender within three (3) Business Days following such
Drawdown Date, the Administrative Agent shall be entitled to
recover such amount from the Borrowers on demand, with interest
thereon at the rate per annum applicable to the Revolving Credit
Loans made on such Drawdown Date.
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Maturity of the Revolving Credit
Loans . The
Revolving Credit Loans shall be due and payable on the Revolving
Credit Maturity Date. The Borrowers jointly and severally promise
to pay on the Revolving Credit Maturity Date all Revolving Credit
Loans outstanding on such date, together with any and all accrued
and unpaid interest thereon.
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Mandatory Repayments of the Revolving Credit
Loans .
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If at any time the outstanding
amount of the Revolving Credit Loans plus Swing Line Loans
plus the Maximum Drawing Amount plus Unpaid
Reimbursement Obligations exceeds the Total Revolving Credit
Commitment, whether by reduction of the Total Revolving Credit
Commitment or otherwise, then the Borrowers shall immediately pay
the amount of such excess to the Administrative Agent for
application to the Revolving Credit Loans, or if no Revolving
Credit Loans shall be outstanding, to the Swing Line Loans, or if
no Swing Line Loans shall be outstanding, to be held by the
Administrative Agent as collateral security for the Reimbursement
Obligations, provided , however , that if the amount
of cash collateral held by the Administrative Agent pursuant to
this 2.8 exceeds the amount of the Obligations, the Administrative
Agent shall return such excess to the Borrowers.
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To the extent that no Term Loan is
outstanding, each prepayment required by 4.4.2 shall be used to
repay the Revolving Credit Loans (but not to reduce the Total
Revolving Credit Commitment) on a pro rata basis in
accordance with each Revolving Credit Lender's Commitment
Percentage.
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Optional Prepayments or Repayments of Revolving
Credit Loans . The
Borrowers shall have the right, at their election, to repay or
prepay the outstanding amount of the Revolving Credit Loans, as a
whole or in part, at any time without penalty or premium (other
than the obligation to reimburse the Revolving Credit Lenders and
the Administrative Agent pursuant to 5.9 hereof). The Borrowers
shall give written notice to the Administrative Agent (or
telephonic notice confirmed in writing) no later than
(a) 1:00 p.m. (Boston time) on the Business Day of the
proposed prepayment or repayment of any Base Rate Loan or
(b) 1:00 p.m. (Boston time) three (3) Eurodollar Business
Days prior to the proposed prepayment or repayment of any
Eurodollar Loan, in each case specifying the proposed date of
prepayment or repayment of Loans and the principal amount to be
paid. Each such partial repayment of the Revolving Credit Loans
shall be $500,000 or integral multiples of $500,000 in excess
thereof, and shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of repayment and
shall be applied, in the absence of instruction by the Borrowers,
first to the principal of Base Rate Loans and then to the principal
of Eurodollar Loans. Each partial prepayment shall be allocated
among the Revolving Credit Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
Revolving Credit Lender's Revolving Credit Loans, with adjustments
to the extent practicable to equalize any prior repayments not
exactly in proportion.
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Swing
Line Loans; Settlements .
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So long as Bank of America has not
received written notice of a Default or an Event of Default made in
accordance with the provisions of this Credit Agreement, solely for
ease of administration of the Revolving Credit Loans, Bank of
America may, upon receipt of a Loan and Letter of Credit Request no
later than 2:00 p.m. (Boston time) on the proposed date of funding,
but shall not be required to, fund Base Rate Loans ("Swing Line
Loans") for periods not to exceed seven (7) days in any one case,
bearing interest as set forth for Base Rate Loans in 2.4. The Swing
Line Loans shall be evidenced by a promissory note of the Borrowers
(the " Swing Line Note ") dated as of the
Closing Date, and shall each be in a minimum amount of $500,000 or
integral multiples of $100,000 in excess thereof, provided
that the outstanding amount of Swing Line Loans advanced by
Bank of America hereunder shall not exceed $25,000,000 at any time.
Each Revolving Credit Lender shall remain severally, but not
jointly, and unconditionally liable to fund its pro rata
share (based upon each Revolving Credit Lender's Commitment
Percentage) of such Swing Line Loans on each Settlement Date and,
in the event Bank of America chooses not to fund all Base Rate
Loans requested on any date, to fund its Commitment Percentage of
the Base Rate Loans requested, subject to satisfaction of the
provisions hereof relating to the making of Base Rate Loans. Prior
to each Settlement, all payments or repayments of the principal of,
and interest on, Swing Line Loans shall be credited to the account
of Bank of America.
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The Revolving Credit Lenders shall
effect Settlements on (i) the Business Day immediately following
any day which the Administrative Agent gives written notice to the
Revolving Credit Lenders to effect a Settlement, (ii) the Business
Day immediately following the Administrative Agent's becoming aware
of the existence of any Default or Event of Default, (iii) the
Revolving Credit Maturity Date, (iv) any date on which the
Borrowers wish to convert a Swing Line Loan into a Base Rate Loan,
and (v) in any event, the seventh day on which any Swing Line Loan
remains outstanding (each such date, a "Settlement Date"). One (1)
Business Day prior to each such Settlement Date, the Administrative
Agent shall give telephonic notice to the Revolving Credit Lenders
of (A) the respective outstanding amount of Revolving Credit Loans
made by each Revolving Credit Lender as at the close of business on
the prior day, (B) the amount that any Revolving Credit Lender, as
applicable (a "Settling Lender"), shall pay to effect a Settlement
(a "Settlement Amount"). A statement of the Administrative Agent
submitted to the Revolving Credit Lenders with respect to any
amounts owing hereunder shall be prima facie evidence
of the amount due and owing. Each Settling Lender shall, not later
than 1:00 p.m. (Boston time) on each Settlement Date, effect a
wire transfer of immediately available funds to the Administrative
Agent at the Administrative Agent's Head Office in the amount of
such Revolving Credit Lender's Settlement Amount. All funds
advanced by any Revolving Credit Lender as a Settling Lender
pursuant to this 2.10 shall for all purposes be treated as a Base
Rate Loan to the Borrowers.
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The Administrative Agent may (unless
notified to the contrary by any Settling Lender by 12:00 noon
(Boston time) one (1) Business Day prior to the Settlement Date)
assume that each Settling Lender has made available (or will make
available by the time specified in 2.7(b)) to the Administrative
Agent its Settlement Amount, and the Administrative Agent may (but
shall not be required to), in reliance upon such assumption, effect
Settlements. If the Settlement Amount of such Settling Lender is
made available to the Administrative Agent on a date after such
Settlement Date, such Settling Lender shall pay the Administrative
Agent on demand an amount equal to the product of (i) the
average, computed for the period referred to in clause (iii) below,
of the weighted average annual interest rate paid by the
Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period
times (ii) such Settlement Amount times (iii) a
fraction, the numerator of which is the number of days that elapse
from and including such Settlement Date to but not including the
date on which such Settlement Amount shall become immediately
available to the Administrative Agent, and the denominator of which
is 365. Upon payment of such amount such Settling Lender shall be
deemed to have delivered its Settlement Amount on the Settlement
Date and shall become entitled to interest payable by the Borrowers
with respect to such Settling Lender's Settlement Amount as if such
share were delivered on the Settlement Date. If such Settlement
Amount is not in fact made available to the Administrative Agent by
such Settling Lender within five (5) Business Days of such
Settlement Date, the Administrative Agent shall be entitled to
recover such amount from the Borrowers, with interest thereon at
the Base Rate.
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After any Settlement Date, any
payment by the Borrowers of Swing Line Loans hereunder shall be
allocated pro rata among the Revolving Credit Lenders, in
accordance with such Lender's Commitment Percentage.
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If, prior to the making of a
Revolving Credit Loan pursuant to paragraph (b) of this 2.10, a
Default or Event of Default has occurred and is continuing, each
Revolving Credit Lender will, on the date such Revolving Credit
Loan was to have been made, purchase an undivided participating
interest in the outstanding Swing Line Loans in an amount equal to
its Commitment Percentage of such Swing Line Loans. Each Revolving
Credit Lender will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its
participation and upon receipt thereof the Administrative Agent
will deliver to such Revolving Credit Lender a Swing Line
participation certificate dated the date of receipt of such funds
and in such amount.
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Whenever, at any time after the
Administrative Agent has received from any Revolving Credit Lender
such Revolving Credit Lender's participating interest in the Swing
Line Loans pursuant to clause (e) above, the Administrative Agent
receives any payment on account thereof, the Administrative Agent
will distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding
and funded) in like funds as received; provided ,
however , that in the event that such payment received by
the Administrative Agent is required to be returned, such Revolving
Credit Lender will return to the Administrative Agent any portion
thereof previously distributed by the Administrative Agent to it in
like funds as such payment is required to be returned by the
Administrative Agent.
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Each Revolving Credit Lender's
obligation to purchase participating interests pursuant to clause
(e) above shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which
such Revolving Credit Lender may have against the Administrative
Agent, the Borrowers or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or Event of
Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrowers or any other Person; (iv) any breach of
this Credit Agreement by the Borrowers or any other Revolving
Credit Lender or Administrative Agent; or (v) any other
circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
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LETTERS
OF CREDIT .
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Letter
of Credit Commitments .
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Commitment to Issue Letters of
Credit .
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Subject to the terms and conditions
hereof and the execution and delivery by the Borrowers of a letter
of credit application on the Issuing Lender's customary form (a "
Letter of Credit Application "), the Issuing Lender on
behalf of the Revolving Credit Lenders and in reliance upon the
agreement of the Revolving Credit Lenders set forth in 3.1.4 and
upon the representations and warranties of the Borrowers contained
herein, agrees, in its individual capacity, to issue and extend for
the account of the Borrowers one or more standby letters of credit
(each, a " Letter of Credit ") including, in
the case of L/C Supported IRBs, so called direct pay letters of
credit (each, an " IRB Letter of Credit
"), in such form as may be requested from time to time by the
Borrowers and agreed to by the Issuing Lender; provided ,
however , that, after giving effect to such request, the
Maximum Drawing Amount shall not exceed the Total Revolving Credit
Commitment minus the aggregate outstanding amount of the
Revolving Credit Loans, the Swing Line Loans and the Unpaid
Reimbursement Obligations. Notwithstanding any other provisions of
this Credit Agreement, the Issuing Lender shall not issue or extend
a Letter of Credit after it has received notice from any Lender or
the Administrative Agent that a Default or Event of Default has
occurred and stating that no Letters of Credit are to be issued or
extended until such Default or Event of Default has been cured or
waived in accordance with the provisions of this Credit
Agreement.
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The Issuing Lender shall not be
under any obligation to issue any Letter of Credit if:
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any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from issuing such Letter of
Credit, or any Law applicable to the Issuing Lender or any request
or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Lender is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Issuing Lender any unreimbursed loss, cost or
expense which was not applicable on the date hereof and which the
Issuing Lender in good faith deems material to it;
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the issuance of such Letter of
Credit would violate one or more policies of the Issuing
Lender;
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except as otherwise agreed by the
Administrative Agent and the Issuing Lender, such Letter of Credit
is in an initial stated amount less than $100,000;
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such Letter of Credit is to be
denominated in a currency other than Dollars;
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such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after
any drawing thereunder; or
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a default of any Revolving Credit
Lender's obligations to fund under 3.3 exists or any Revolving
Credit Lender is at such time a Delinquent Lender hereunder, unless
the Issuing Lender has entered into satisfactory arrangements with
the Borrowers or such Revolving Credit Lender to eliminate the
Issuing Lender's risk with respect to such Revolving Credit
Lender.
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Letter
of Credit Applications .
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Each Letter of Credit Application
shall be completed to the satisfaction of the Issuing Lender. In
the event that any provision of any Letter of Credit Application
shall be inconsistent with any provision of this Credit Agreement,
then the provisions of this Credit Agreement shall, to the extent
of any such inconsistency, govern. Such Letter of Credit
Application must be received by the Issuing Lender and the
Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative
Agent and the Issuing Lender may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the
Issuing Lender: (i) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (ii) the amount
thereof; (iii) the expiry date thereof; (iv) the name and address
of the beneficiary thereof; (v) the documents to be presented by
such beneficiary in case of any drawing thereunder; (vi) the full
text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; and (vii) such other matters as the
Issuing Lender may reasonably require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to
the Issuing Lender (w) the Letter of Credit to be amended; (x) the
proposed date of amendment thereof (which shall be a Business Day);
(y) the nature of the proposed amendment; and (z) such other
matters as the Issuing Lender may reasonably require. Additionally,
the Borrowers shall furnish to the Issuing Lender and the
Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the Issuing Lender or
the Administrative Agent may reasonably require.
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Promptly after receipt of any Letter
of Credit Application, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit
Application from the applicable Borrower(s) and, if not, the
Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the Issuing Lender has received written notice from
any Revolving Credit Lender, the Administrative Agent or any
Borrower, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in 10 and 11 shall not then
be satisfied, then, subject to the terms and conditions hereof, the
Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the applicable Borrower(s) or enter into
the applicable amendment, as the case may be, in each case in
accordance with the Issuing Lender's usual and customary business
practices.
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Terms
of Letters of Credit . Each
Letter of Credit issued or extended hereunder shall, among other
things, (a) provide for the payment of sight drafts for honor
thereunder when presented in accordance with the terms thereof and
when accompanied by the documents described therein, (b) be subject
to clause (c) hereof and 3.1.7, and (other than with respect to IRB
Letters of Credit) shall have a term of not more than one (1) year
from the date of issuance or extension thereof and (c) have an
expiry date no later than the Letter of Credit Expiration
Date.
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Reimbursement Obligations of
Lenders . Each
Revolving Credit Lender severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default
or Event of Default or any other condition precedent whatsoever, to
the extent of such Revolving Credit Lender's Commitment Percentage
thereof, to reimburse the Administrative Agent on demand for the
amount of each draft paid by the Issuing Lender under each Letter
of Credit issued in accordance with the terms hereof to the extent
that such amount is not reimbursed by the Borrowers pursuant to 3.2
(such agreement for a Lender being called herein the " Letter of
Credit Participation " of such Lender). Without limiting the
foregoing, each Revolving Credit Lender's obligation to purchase
Letter of Credit Participations shall be absolute and unconditional
and shall not be affected by any circumstance, including (a) any
set- off, counterclaim, recoupment, defense or other right which
such Revolving Credit Lender may have against the Administrative
Agent, the Issuing Lender, any Borrower or any other Person for any
reason whatsoever; (b) the occurrence and continuation of any
Default or Event of Default; (c) any adverse change in the
condition (financial or otherwise) of any Borrower or any Revolving
Credit Lender; (d) any breach of any of the Loan Documents by any
Borrower or any Revolving Credit Lender; or (e) any other
circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
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Participations of Lenders
. Each
such payment made by a Revolving Credit Lender shall be treated as
the purchase by such Revolving Credit Lender of a participating
interest in the Borrowers' Reimbursement Obligation under 3.2 in an
amount equal to such payment. Each Revolving Credit Lender shall
share in accordance with its participating interest in any interest
which accrues pursuant to 3.2.
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Existing Letters of Credit
. The
parties hereby agree that the letters of credit issued under the
Existing Credit Agreement and listed on Schedule 3.1
hereto shall be deemed to have been issued pursuant to this Credit
Agreement and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof. In addition, this
Credit Agreement shall be the " Reimbursement Agreement " or
the " Credit Agreement ", as the case may be,
referred to in the bond documentation relating to the L/C Supported
IRBs.
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Auto
Extension Letters of Credit .
If any Borrower so requests in an application
for a Letter of Credit, the Issuing Lender may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto- Extension Letter of Credit
must permit the Issuing Lender to prevent any such extension at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a date (the "Non Extension
Notice Date") in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed
by the Issuing Lender, the Borrowers shall not be required to make
a specific request to the Issuing Lender for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the
Revolving Credit Lenders shall be deemed to have authorized (but
may not require) the Issuing Lender to permit the extension of such
Letter of Credit at any time to an expiry date not later than
thirty (30) days prior to the Revolving Credit Maturity Date;
provided, however, that the Issuing Lender shall not permit any
such extension if (A) the Issuing Lender has determined that it
would have no obligation at such time to issue such Letter of
Credit in its extended form under the terms hereof, or (B) it has
received notice (which may be by telephone or in writing) on or
before the day that is two (2) Business Days before the Non
Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2)
from the Administrative Agent, any Lender or the Borrowers that one
or more of the applicable conditions specified in 11 is not then
satisfied
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Reimbursement Obligation of the
Borrowers . In order
to induce the Issuing Lender to issue and extend each Letter of
Credit and the Revolving Credit Lenders to participate therein, the
Borrowers hereby agree to reimburse or pay to the Administrative
Agent, for the account of the Issuing Lender, with respect to each
Letter of Credit issued or extended by the Issuing Lender
hereunder:
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except as otherwise expressly
provided in 3.2(b) and (c), on each date that any draft presented
under any Letter of Credit is honored by the Issuing Lender, or the
Issuing Lender otherwise makes a payment with respect thereto, (i)
the amount paid by the Issuing Lender under or with respect to such
Letter of Credit, and (ii) the amount of any taxes, fees, charges
or other costs and expenses whatsoever incurred by the Issuing
Lender or any Revolving Credit Lender in connection with any
payment made by the Issuing Lender or any Revolving Credit Lender
under, or with respect to, such Letter of Credit; provided
however , if the Borrowers do not reimburse the
Administrative Agent on the Drawdown Date, such amount shall,
provided that no Event of Default under 13.1(h) or 13.1(i) has
occurred, become automatically a Revolving Credit Loan which is a
Base Rate Loan advanced hereunder in an amount equal to such sum;
and
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upon the reduction (but not
termination) of the Total Revolving Credit Commitment to an amount
less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent
for the benefit of the Revolving Credit Lenders and the Issuing
Lender as cash collateral for all Reimbursement Obligations;
and
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upon the Revolving Credit Maturity
Date, or upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations
with respect to all Letters of Credit in accordance with 13, an
amount equal to the Maximum Drawing Amount of all Letters of
Credit, which amount shall be held by the Administrative Agent for
the benefit of the Issuing Lender as cash collateral for all
Reimbursement Obligations.
Each
such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds.
Interest on any and all amounts remaining unpaid by the Borrowers
under this 3.2 at any time from the date such amounts become due
and payable (whether as stated in this 3.2, by acceleration or
otherwise) until payment in full (whether before or after judgment)
shall be payable to the Administrative Agent on demand at the rate
specified in 5.6 for overdue principal on the Loans.
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Letter
of Credit Payments . If any
draft shall be presented or other demand for payment shall be made
under any Letter of Credit, the Issuing Lender shall notify the
Borrowers and the Administrative Agent of the date and amount of
the draft presented or demand for payment and of the date and time
when it expects to pay such draft or honor such demand for payment.
If the Borrowers fail to reimburse the Issuing Lender through the
Administrative Agent as provided in 3.2 on or before the date that
such draft is paid or other payment is made by the Issuing Lender,
the Issuing Lender may at any time thereafter notify the
Administrative Agent who will promptly notify the Revolving Credit
Lenders of the amount of any such Unpaid Reimbursement Obligation
and shall specify such amount required from each of the Revolving
Credit Lenders. No later than 3:00 p.m. (Boston time) on the
Business Day next following the receipt of such notice, each
Revolving Credit Lender shall make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately
available funds, such Revolving Credit Lender's Commitment
Percentage of such Reimbursement Obligation, together with an
amount equal to the product of (a) the weighted average, computed
for the period referred to in clause (c) below, of the Federal
Funds Rate times (b) the amount equal to such Revolving
Credit Lender's Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which is
the number of days that have elapsed from and including the date
the Issuing Lender paid the draft presented for honor or otherwise
made payment until the date on which such Revolving Credit Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation shall
become immediately available to the Administrative Agent, and the
denominator of which is 365. The responsibility of the Issuing
Lender to the Borrowers and the Revolving Credit Lenders shall be
only to determine that the documents (including each draft)
delivered under each Letter of Credit in connection with such
presentment shall be in conformity in all material respects with
such Letter of Credit.
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Obligations Absolute
. The
obligation of the Borrowers to reimburse the Issuing Lender for
each drawing under each Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Credit Agreement under all
circumstances, including the following:
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any lack of validity or
enforceability of such Letter of Credit, this Credit Agreement, or
any other Loan Document;
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the existence of any claim,
counterclaim, setoff, defense or other right that the Borrowers may
have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or
any such transferee may be acting), the Issuing Lender or any other
Person, whether in connection with this Credit Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated
transaction;
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any draft, demand, certificate or
other document presented under such Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document
required in order to make a drawing under such Letter of
Credit;
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any payment by the Issuing Lender
under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the Issuing Lender under
such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
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any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrowers.
The
Borrowers shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to the Borrowers and,
in the event of any claim of noncompliance with the Borrowers
instructions or other irregularity, the Borrowers will immediately
notify the Issuing Lender. The Borrowers shall be conclusively
deemed to have waived any such claim against the Issuing Lender and
its correspondents unless such notice is given as
aforesaid.
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Role of
Issuing Lender . Each
Lender and the Borrowers agree that, in paying any drawing under a
Letter of Credit, the Issuing Lender shall not have any
responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or
delivering any such document. None of the Issuing Lender, the
Administrative Agent, any of their respective Related Parties nor
any correspondent, participant or assignee of the Issuing Lender
shall be liable to any Lender for (i) any action taken or omitted
in connection herewith at the request or with the approval of
Lenders or the Required Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter
of Credit or Issuer Document. The Borrowers hereby assume all risks
of the acts or omissions of any beneficiary or transferee with
respect to such beneficiary's or transferee's use of any Letter of
Credit; provided , however , that this assumption is
not intended to, and shall not, preclude the Borrowers' pursuing
such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Issuing
Lender, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the
Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (a) through (e) of 3.4;
provided , however , that anything in such clauses to
the contrary notwithstanding, the Borrowers may have a claim
against the Issuing Lender, and the Issuing Lender may be liable to
the Borrowers, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered
by Borrowers which the Borrowers prove were caused by the Issuing
Lender's willful misconduct or gross negligence or the Issuing
Lender's willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Lender may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary, and the Issuing Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any
reason.
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Letter
of Credit Amounts . Unless
otherwise specified herein the amount of a Letter of Credit at any
time shall be deemed to be the stated amount of such Letter of
Credit in effect at such time; provided, however, that with respect
to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such
time.
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Applicability of ISP
. Unless
otherwise expressly agreed by the Issuing Lender and the Borrowers
when a Letter of Credit is issued, the rules of the ISP shall apply
to each Letter of Credit.
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THE
TERM LOAN FACILITY .
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Commitment to Lend
. The
principal amount of the Term Loan on the Closing Date shall be $0.
To the extent that after the Closing Date, a Term Loan is advanced
pursuant to the terms of this Credit Agreement, each Term Loan
Lender shall lend to the Borrowers the amount of its Term Loan
Percentage of the amount of the Term Loan and the terms of this
Section 4 shall apply to any such Term Loan(s).
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Evidence of Indebtedness; Term
Notes .
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Loan Accounts
. Each Term Loan Lender shall maintain
in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrowers to such Lender resulting
from such Lender's Term Loan Percentage of the Term Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under
this Credit Agreement. The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of the Term Loan
made hereunder and each Interest Period applicable thereto, (ii)
the amount of any principal or interest due and payable or to
become due and payable from the Borrowers to each Term Loan Lender
hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder for the account of the Term Loan
Lenders and each Term Loan Lender's share thereof (if any). The
entries made in the accounts maintained by each Term Loan Lender
pursuant to this 4.2(a) (or any Term Note Record referred to below)
shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations
of the Borrowers therein recorded; provided , however
, that the failure of any Term Loan Lender or the Administrative
Agent to maintain any such accounts or Term Note Record, or any
error therein, shall not in any manner affect the obligation of the
Borrowers to repay (with applicable interest) the Term Loan made in
accordance with the terms of this Credit Agreement.
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Term Notes
. Upon the request of any Term Loan Lender, the
Borrowers shall execute and deliver to such Term Loan Lender a
promissory note (each, a " Term Note "), which shall (i) be
payable to the order of such Term Loan Lender and be dated the date
of the issuance thereof, (ii) be in a stated principal amount equal
to the Term Loan made by such Term Loan Lender, (iii) represent the
obligation of the Borrowers to pay to such Term Loan Lender such
principal amount or, if less, the outstanding amount of the Term
Loan of such Term Loan Lender, plus interest accrued thereon as set
forth in 4.6 or 4.7 herein, (iv) mature on the Term Loan Maturity
Date and (v) be entitled to the benefits of this Credit Agreement
and the other Loan Documents. The Borrowers irrevocably authorize
each Term Loan Lender with a Term Note to make or cause to be made
a notation on such Term Loan Lender's Term Note Record reflecting
the original principal amount of such Term Loan Lender's Term Loan
Percentage of the Term Loan and, at or about the time of the
receipt of any payment of principal on such Lender's Term Note, an
appropriate notation on such Lender's Term Note Record reflecting
the receipt of such payment. Each Term Loan Lender holding a Term
Note will, prior to any transfer of such Term Note, endorse on the
reverse side thereof the outstanding principal amount of Term Loan
evidenced thereby. Failure to make such notation or any error in
any such notation or endorsement shall not affect the Borrowers'
obligations in respect of such Term Loan.
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Scheduled Installment Payments of Principal of
Term Loan . The
Borrowers jointly and severally promise to pay to the
Administrative Agent for the account of the Term Loan Lenders, in
accordance with their respective Term Loan Percentages, the
principal amount of the Term Loan in such amounts pursuant to the
installment schedule to be set forth in Schedule 4.3 and to
be attached hereto, provided that the final installment payment
shall not be due and payable prior to the Revolving Credit Loan
Maturity Date.
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Mandatory Prepayments of
Loans .
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Mandatory Prepayments
.
In the event that Net Cash Proceeds received by
the Borrowers from asset sales exceed $50,000,000 per annum (other
than in connection with Permitted Receivables Transactions and the
sale, lease, license or other disposition of assets in the ordinary
course of business and with respect to asset swaps permitted under
8.4), the Borrowers will use one-hundred percent (100%) of any such
Net Cash Proceeds in excess of $50,000,000 to pay down the Loans in
the manner set forth in 4.4.2.
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Application of Payments
. Each prepayment of the Loans required by 4.4.1
shall be allocated first, to the extent a Term Loan is outstanding,
among the Term Loan Lenders in accordance with each such Term Loan
Lender's Term Loan Percentage. Any prepayment of principal of the
Term Loan shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled installments
of principal due on the Term Loan in the inverse order of maturity.
No amount prepaid or repaid with respect to the Term Loan may be
reborrowed. Any Term Loan Lender may decline to accept any payments
due to such Term Loan Lender pursuant to this 4.4 in which case
such declined payments shall be used to repay the Revolving Credit
Loans (but not reduce the Total Revolving Credit Commitment) on a
pro rata basis in accordance with each Revolving Credit
Lender's Commitment Percentage. In the event no Term Loan is
outstanding at such time, the full amount of such mandatory
prepayments shall be applied in accordance with
2.8(b).
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Optional Prepayment of Term
Loan . The
Borrowers shall have the right at any time to prepay the Term Loan
on or before the Term Loan Maturity Date, in whole, or in part,
upon not less than three (3) Business Days' prior written notice to
the Administrative Agent, without premium or penalty (other than
the obligation to reimburse the Term Loan Lenders and the
Administrative Agent pursuant to 5.9 hereof, or as otherwise stated
herein), provided that (a) each partial prepayment shall be
in the principal amount of $1,000,000 or an integral multiple of
$500,000 thereof, and (b) each partial prepayment shall be
allocated among the Term Loan Lenders in accordance with such
Lender's Term Loan Percentage. Any prepayment of principal of the
Term Loan shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled installments
of principal due on the Term Loan in the inverse order of maturity.
No amount prepaid or repaid with respect to the Term Loan may be
reborrowed.
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Interest on Term Loan
. Except as otherwise provided in 4.7 or 5.6,
any Term Loan advanced hereunder shall bear interest during each
Interest Period relating to all or any portion of the Term Loan at
a rate to be determined, based on prevailing market rates for
borrowers with similar credit profiles and ratings, and otherwise
acceptable to the Administrative Agent and the Term Loan
Lenders.
The
Borrowers jointly and severally promise to pay interest on the Term
Loan or any portion thereof outstanding during each Interest Period
in arrears on each Interest Payment Date applicable to such
Interest Period and on the Term Loan Maturity Date. Any change in
the interest rate resulting from a change in the Base Rate is to be
effective at the beginning of the day of such change in the Base
Rate.
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Pari
Passu Treatment of Term Loans . Each
Term Loan (a) shall rank pari passu in right of
payment and of security with all other Loans and (b) shall be
governed by and subject to all of the provisions, terms and
conditions set forth in this Credit Agreement and the other Loan
Documents in every respect as though such Term Loan was an original
"Loan" referred to herein and will constitute an Obligation of the
Borrowers hereunder (including, without limitation, the mandatory
prepayment provisions and 5.6 hereof); except that any such Term
Loan advanced in accordance with 18(g) or this 4 may provide for an
interest rate as agreed to among the Borrowers, each of the Term
Loan Lenders, and the Administrative Agent. To the extent
conforming changes to this Credit Agreement must be made to effect
the addition of a Term Loan made in accordance with 18(g) or this
4, such conforming amendment will not require the consent of any
Lender other than the Term Loan Lenders, as well as the consent of
the Borrowers and the Administrative Agent to be effective, but
shall be subject to the satisfaction of each of the conditions set
forth in 11.
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FEES,
PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL
LIABILITY.
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Fees . The
Borrowers jointly and severally agree to pay all Fees in the
amounts and at the times and otherwise in accordance with the terms
specified herein or the Loan Documents, as the case may be,
including:
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Commitment Fee
. The Borrowers jointly and severally agree to pay
to the Administrative Agent, for the respective account of each
Revolving Credit Lender, a fee (the "Commitment Fee") calculated at
the rate per annum equal to the Applicable Commitment Rate with
respect to the Commitment Fee as in effect from time to time on the
actual daily amount during each calendar quarter or portion thereof
from the Closing Date to the Revolving Credit Maturity Date by
which the Total Revolving Credit Commitment minus the sum of
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the outstanding amount of Revolving Credit Loans (excluding
Swing Line Loans) during such calendar quarter. The Commitment Fee
shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter
commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Maturity Date or any earlier
date on which the Commitments shall terminate.
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L etter
of Credit Fees . The
Borrowers shall pay a fee (the " Letter of Credit Fee ")
equal to (i) the Applicable L/C Margin multiplied by the
Maximum Drawing Amount of each Financial Letter of Credit or
(ii) 50% of the Applicable L/C Margin multiplied by the
Maximum Drawing Amount of each Performance Letter of Credit. Such
Letter of Credit Fee shall be payable to the Administrative Agent
for the account of the Revolving Credit Lenders, to be shared
pro rata by the Revolving Credit Lenders in accordance with
their respective Commitment Percentages. The Borrowers shall also
pay a fee (the " Issuance Fee ") to the Administrative
Agent, for its own account, equal to 0.125% per annum on the
Maximum Drawing Amount of all Letters of Credit issued by such
Lender, plus its customary administrative charges. The Letter of
Credit Fee and the Issuance Fee shall be payable for the number of
days each Letter of Credit is outstanding, and shall be payable
quarterly in arrears on the first day of each calendar quarter for
the immediately preceding calendar quarter, and on the Revolving
Credit Maturity Date.
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Payments .
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All payments of principal, interest,
Reimbursement Obligations, fees and any other amounts due hereunder
or under any of the other Loan Documents shall be made to the
Administrative Agent, for the respective accounts of the Lenders
and the Administrative Agent, to be received at the Administrative
Agent's Head Office in immediately available funds by 12:00 noon
(Boston time) on any due date.
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All payments by the Borrowers
hereunder and under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrowers are compelled by law
to make such deduction or withholding. If any such obligation is
imposed upon the Borrowers with respect to any amount payable by
them hereunder or under any of the other Loan Documents, the
Borrowers will pay to the Administrative Agent, for the account of
the Lenders or (as the case may be) the Administrative Agent, on
the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as
shall be necessary to enable the Lenders or the Administrative
Agent to receive the same net amount which the Lenders or the
Administrative Agent would have received on such due date had no
such obligation been imposed upon the Borrowers. In the event that
the Borrowers are required to make such deduction or withholding as
a result of the fact that a Lender is organized outside of the
United States, such Lender shall use its reasonable best efforts to
transfer its Loans to an affiliate organized within the United
States if such transfer would have no adverse effect on such Lender
or the Loans. The Borrowers will deliver promptly to the Lender
certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the
Borrowers hereunder or under such other Loan Document.
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Whenever a payment hereunder or
under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended
to the next succeeding Business Day, and interest shall accrue
during such extension; provided that any Interest Period for
any Eurodollar Loan which ends on a day that is not a Eurodollar
Business Day shall end on the next succeeding Eurodollar Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Eurodollar
Business Day.
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Each Lender and the Administrative
Agent that is not a U.S. Person as defined in Section 7701(a)(30)
of the Code for federal income tax purposes (a " Non-U.S.
Lender ") hereby agrees that, if and to the extent it is
legally able to do so, it shall, prior to the date of the first
payment by the Borrowers hereunder to be made to such Lender or the
Administrative Agent or for such Lender's or the Administrative
Agent's account, deliver to the Borrowers and the Administrative
Agent, as applicable, such certificates, documents or other
evidence, as and when required by the Code or Treasury Regulations
issued pursuant thereto, including (a) in the case of a Non-U.S.
Lender that is a "bank" for purposes of Section 881(c)(3)(A) of the
Code, two (2) duly completed copies of Internal Revenue Service
Form W-8BEN or Form W-8ECI and any other certificate or statement
of exemption required by Treasury Regulations, or any subsequent
versions thereof or successors thereto, properly completed and duly
executed by such Lender or the Administrative Agent establishing
that with respect to payments of principal, interest or fees
hereunder it is (i) not subject to United States federal
withholding tax under the Code because such payment is effectively
connected with the conduct by such Lender or Administrative Agent
of a trade or business in the United States or (ii) totally exempt
or partially exempt from United States federal withholding tax
under a provision of an applicable tax treaty and (b) in the case
of a Non-U.S. Lender that is not a "bank" for purposes of
Section 881(c)(3)(A) of the Code, a certificate in form and
substance reasonably satisfactory to the Administrative Agent and
the Borrowers and to the effect that (i) such Non-U.S. Lender
is not a "bank" for purposes of Section 881(c)(3)(A) of the Code,
is not subject to regulatory or other legal requirements as a bank
in any jurisdiction, and has not been treated as a bank for
purposes of any tax, securities law or other filing or submission
made to any governmental authority, any application made to a
rating agency or qualification for any exemption from any tax,
securities law or other legal requirements, (ii) is not a ten
(10) percent shareholder for purposes of Section 881(c)(3)(B) of
the Code and (iii) is not a controlled foreign corporation
receiving interest from a related person for purposes of Section
881(c)(3)(C) of the Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or
successor forms). Each Lender or the Administrative Agent agrees
that it shall, promptly upon a change of its lending office or the
selection of any additional lending office, to the extent the forms
previously delivered by it pursuant to this section are no longer
effective, and promptly upon the Borrowers' or the Administrative
Agent's reasonable request after the occurrence of any other event
(including the passage of time) requiring the delivery of a Form
W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in
replacement of the forms previously delivered, deliver to the
Borrowers and the Administrative Agent, as applicable, if and to
the extent it is properly entitled to do so, a properly completed
and executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as
applicable (or any successor forms thereto).
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Computations . All
computations of interest on Base Rate Loans and of Commitment Fees,
Letter of Credit Fees or other fees shall, unless otherwise
expressly provided herein, be based on a 365-day year (or 366-day
year, as applicable) and paid for the actual number of days
elapsed. All computations of interest on Eurodollar Loans shall,
unless otherwise expressly provided herein, be based on a 360-day
year and paid for the actual number of days
elapsed.
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Capital
Adequacy . If any
present or future law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) or
the interpretation thereof by a court or governmental authority
with appropriate jurisdiction affects the amount of capital
required or expected to be maintained by any Lender or the
Administrative Agent or any corporation controlling such Lender or
the Administrative Agent, and such Lender or the Administrative
Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of
such Lender's or the Administrative Agent's Loans, Letter of Credit
participations or Letters of C
