REVOLVING CREDIT AGREEMENT

EXHIBIT 4.1

 

 

REVOLVING CREDIT AGREEMENT

 

dated as of

 

August 19, 2005

 

among

 

SMITHFIELD FOODS, INC.,

 

THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO,

 

THE LENDERS FROM TIME TO TIME PARTY HERETO,

 

CALYON NEW YORK BRANCH,

as Co-Documentation Agent,

 

COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. “RABOBANK

INTERNATIONAL”, NEW YORK BRANCH,

as Co-Documentation Agent,

 

SUNTRUST BANK

as Co-Documentation Agent,

 

CITICORP USA, INC.,

as Syndication Agent

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

 

JPMORGAN SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners

 

Table of Contents

 

 

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SCHEDULES:

 

Schedule 1.01 – Excluded Subsidiaries

Schedule 2.01 – Commitments

Schedule 3.06 – Disclosed Matters

Schedule 3.13 – Material Agreements and Liens

Schedule 3.14 – Subsidiaries

Schedule 6.01 – Existing Indebtedness

Schedule 6.02 – Existing Liens

 

EXHIBITS:

 

Exhibit A – Form of Assignment and Assumption

Exhibit B – Form of Security Agreement

Exhibit C – Form of Guarantee Assumption Agreement

Exhibit D – Form of Opinion of McGuireWoods LLP

Exhibit E – Form of Intercreditor Agreement

Exhibit F – Form of Assumption Agreement

Exhibit G – Form of Compliance Certificate

 

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REVOLVING CREDIT AGREEMENT, dated as of August 19, 2005 (this “ Agreement ” or this “ Credit Agreement ”), among SMITHFIELD FOODS, INC., a Virginia corporation (the “ Borrower ”), each of the Subsidiaries of the Borrower identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto or that, pursuant to Section 5.09 hereof, shall become a “Subsidiary Guarantor” hereunder (individually, a “ Subsidiary Guarantor ” and, collectively, the “ Subsidiary Guarantors ”), each of the lenders that is a party hereto identified under the caption “LENDERS” on Schedule 2.01 hereto or that, pursuant to Section 2.19 or Section 10.04 hereof, shall become a “Lender” hereunder (individually, a “ Lender ” and, collectively, the “ Lenders ”), CALYON NEW YORK BRANCH, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. “RABOBANK INTERNATIONAL”, NEW YORK BRANCH and SUNTRUST BANK, as co-documentation agents (in such capacity, the “ Co-Documentation Agents ”), CITICORP USA, INC., as syndication agent (in such capacity, the “ Syndication Agent ”), and JPMORGAN CHASE BANK, N.A., as administrative agent (in its capacity as administrative agent for the Lenders hereunder, together with its successors in such capacity, the “ Administrative Agent ”).

 

The Borrower and its subsidiaries are engaged as an integrated group in the business of producing and processing pork, beef and turkey, furnishing the required supplies, services, equipment, credit and other facilities for such integrated operation and related businesses. The integrated operation requires financing on such a basis that credit supplied to the Borrower be made available from time to time to the Subsidiary Guarantors, as required for the continued successful operation of the Obligors, separately, and the integrated operation as a whole. In that connection, the Obligors have requested that the Lenders extend credit to the Borrower, by means of Dollar and Foreign Currency denominated loans and letters of credit, in an aggregate amount at any one time outstanding up to but not exceeding $1,000,000,000 or its equivalent as herein provided (to be made available by the Borrower directly or indirectly to the Subsidiary Guarantors and other of its Subsidiaries in the circumstances specified herein), to finance the working capital needs and for other general corporate purposes of the Borrower and its subsidiaries in the ordinary course of business.

 

The Lenders are willing to so agree, and accordingly, the parties hereto hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

 

“ ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate. ABR Loans may be denominated only in Dollars.

 

“ Accounts Receivable ” means, as to any Person, all accounts (as defined in the Uniform Commercial Code) of such Person arising from the sale of Inventory in the ordinary course of its business.

“ Acquisition ” means any transaction, or any series of related transactions, consummated after the date of this Agreement, by which the Borrower and/or any of its Restricted Subsidiaries (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise, (b) directly or indirectly acquires control of at least a majority (in number of votes) of the securities of a corporation that have ordinary voting power for the election of directors or (c) directly or indirectly acquires control of at least a majority of the partner, member or other ownership interests of any Person that is not a corporation.

 

“ Adjusted LIBO Rate ” means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

“ Administrative Agent ” has the meaning assigned to such term in the preamble.

 

“ Administrative Agent’s Account ” means, for each Currency, an account in respect of such Currency designated by the Administrative Agent in a notice to the Borrower and the Lenders.

 

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“ Affected Currency ” has the meaning assigned to such term in Section 2.13.

 

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

 

“ Agreement ” has the meaning assigned to such term in the preamble.

 

“ Alternate Base Rate ” means, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the opening of business on the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

 

“ Applicable Dollar Percentage ” means, with respect to any Dollar Lender, the percentage of the Total Dollar Sub-Commitment represented by such Dollar Lender’s Dollar Sub-Commitment; provided , that if the Dollar Sub-Commitments have terminated or expired, the Applicable Dollar Percentages shall be determined based upon the Total Dollar Sub-Commitment most recently in effect, after giving effect to any assignments.

 

“ Applicable Multicurrency Percentage ” means, with respect to any Multicurrency Lender, the percentage of the Total Multicurrency Sub-Commitment represented by such Multicurrency Lender’s Multicurrency Sub-Commitment; provided , that if the Multicurrency Sub-Commitments have terminated or expired, the Applicable Multicurrency Percentages shall be determined based upon the Total Multicurrency Sub-Commitment most recently in effect, after giving effect to any assignments.

 

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“ Applicable Percentage ” means, with respect to any Lender, the percentage of the Total Commitment represented by such Lender’s Commitments; provided , that if the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Total Commitment most recently in effect, after giving effect to any assignments.

 

“ Applicable Rate ” means, for any day, with respect to any ABR Loan, Eurocurrency Revolving Loan, Federal Funds Loan, Letter of Credit, Swingline Loan, or with respect to the Commitment Fees payable hereunder, as the case may be, the applicable rate per annum set forth below for Loans of such Type, for Letters of Credit or Commitment Fees, as the case may be, based upon the ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:

 

 

For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a rating in Category 3; (ii) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall fall within different Categories, the Applicable Rate shall be based on the higher of the two ratings unless one of the two ratings is two levels lower than the other, in which case the Applicable Rate shall be determined by reference to the Category next below that of the higher of the two ratings; and (iii) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01(g) or otherwise. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.

 

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“ Approved Foreign Currency ” means, at any time, the Euro; provided , that with the prior written agreement of all of the Multicurrency Lenders, such term shall include any other Foreign Currency, that, at such time, (a) is dealt with in the London interbank market, (b) is freely transferable and convertible into Dollars in the London foreign exchange market and (c) with respect to which no central bank or other governmental authorization in the country of issue of such Foreign Currency is required to permit use of such Foreign Currency by any Multicurrency Lender for making any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.

 

“ Approved Fund ” has the meaning assigned to such term in Section 10.04(b).

 

“ Arrangers ” means, collectively, JPMorgan Securities Inc. and Citigroup Global Markets Inc.

 

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

“ Assumption Agreement ” has the meaning assigned to such term in Section 2.19.

 

“ Availability Period ” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

 

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

 

“ Borrower ” has the meaning assigned to such term in the preamble.

 

“ Borrowing ” means (a) Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans, denominated in the same Currency and as to which a single Interest Period is in effect or (b) a Swingline Loan.

 

“ Borrowing Request ” means a request by the Borrower for a Revolving Borrowing in accordance with Section 2.03.

 

“ Business Day” means any day (a) that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed, (b) if such day relates to a Borrowing of, a payment or prepayment of principal of or interest on, a continuation or conversion of or into, or the Interest Period for, a Eurocurrency Borrowing denominated in Dollars, or to a notice by the Borrower with respect to any such Borrowing, payment, prepayment, continuation, conversion, or Interest Period, that is also a day on which dealings in deposits denominated in Dollars are carried out in the London interbank market and (c) if such day relates to a Borrowing or continuation of, a payment or prepayment of principal of

 

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or interest on, or the Interest Period for, any Eurocurrency Borrowing denominated in any Foreign Currency, or to a notice by the Borrower with respect to any such Borrowing, continuation, payment, prepayment or Interest Period, that is also a day on which commercial banks in the London foreign exchange market settle payments in the Principal Financial Center for such Foreign Currency.

 

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

 

“ Category ” means, when used with reference to Index Debt, that the Index Debt is noted as follows:

 

 

“ Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing more than 25% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group.

 

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

 

“ Class ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.

 

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

 

“ Co-Documentation Agents ” has the meaning assigned to such term in the preamble.

 

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“ Collateral Agent ” means JPMorgan Chase Bank, N.A., in its capacity as collateral agent under the Security Agreement, together with its successors in such capacity.

 

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

 

“ Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04 (and the “ Commitment ” of any Lender shall be deemed to include its Dollar Sub-Commitment and its Multicurrency Sub-Commitment, if any). The initial amount of each Lender’s Commitment is set forth on Schedule 2.01 , in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, or in the Assumption Agreement or Increase Confirmation pursuant to which any Lender shall have increased its Commitment pursuant to Section 2.19(b)(ii) or provided a new Commitment pursuant to Section 2.19(b)(iii), as applicable. The initial amount of the Total Commitment (including the Total Dollar Sub-Commitment and the Total Multicurrency Sub-Commitment) is $1,000,000,000.

 

“ Commitment Fee ” means the fees payable at the Applicable Rate pursuant to Section 2.11(a).

 

“ Commitment Increase ” has the meaning assigned to such term in Section 2.19(a).

 

“ Commitment Increase Date ” has the meaning assigned to such term in Section 2.19(a).

 

“ Compliance Certificate ” means a certificate duly executed by a Financial Officer substantially in the form of Exhibit G.

 

“ Consolidated EBITDA ” means, for any period, an amount equal to (a) the sum for such period of Consolidated Net Income and, to the extent subtracted in determining such Consolidated Net Income, provisions for (i) taxes based on income, (ii) Consolidated Interest Expense and (iii) depreciation and amortization expense.

 

“ Consolidated Interest Expense ” means, for any period, the consolidated cash interest expense of the Borrower and its Restricted Subsidiaries (including deferred or accrued cash interest expense and the cash interest portion of all Capital Lease Obligations during such period).

 

Notwithstanding the foregoing, Consolidated Interest Expense for any period will be adjusted, on a pro forma basis to take into account the effect of any Acquisition or Disposition during such period, as if such Acquisition or Disposition (and any related incurrence or prepayment of Indebtedness) had occurred on the first day of such period.

 

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“ Consolidated Net Income ” means, for any period, the net income (or deficit) of the Borrower and its Restricted Subsidiaries; provided , however, that there shall be excluded from Consolidated Net Income (i) the income (or deficit) of any Person (other than a consolidated Restricted Subsidiary) in which the Borrower has an ownership interest, except to the extent that any such income has been actually received by the Borrower in the form of dividends or similar distributions, (ii) the undistributed earnings of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions of such Restricted Subsidiary is restricted and (iii) any income or gain resulting from any write-up or revaluation of the assets of the Borrower or its Restricted Subsidiaries.

 

Notwithstanding the foregoing, in determining Consolidated Net Income for any period, appropriate adjustments shall be made to take into account the effect of any Acquisition or Disposition during such period, as if such Acquisition or Disposition had occurred on the first day of such period.

 

“ Consolidated Total Assets ” means, on any date, the aggregate amount of assets of the Borrower and its Restricted Subsidiaries shown on a consolidated balance sheet of such Persons at such date.

 

“ Consolidated Total Funded Debt ” means the aggregate amount of Funded Debt of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.

 

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

“ Coverage Covenant ” has the meaning assigned to such term in Section 6.12(c).

 

“ Currency ” means Dollars or any Foreign Currency.

 

“ Default ” means any event or condition which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Disclosed Matters ” means the presently pending actions, suits and proceedings and the presently existing environmental matters disclosed in Schedule 3.06 .

 

“ Disposition ” means any transaction, or any series of related transactions, consummated after the date of this Agreement, by which the Borrower and/or any of its Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any going business or all or substantially all of the assets of any Person, whether through sale, transfer or other disposition of assets, merger or otherwise, (b) directly or indirectly sells, transfers or otherwise disposes of control of at least a majority (in number of votes) of the securities of a corporation that have ordinary voting power for the election of directors or (c) directly or indirectly sells, transfers or otherwise disposes of control of at least a majority of the partner, member or other ownership interests of any Person that is not a corporation.

 

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“ Dollar Equivalent ” means, with respect to any Borrowing denominated in an Approved Foreign Currency, the amount of Dollars that would be required to purchase the amount of the Foreign Currency of such Borrowing on the date two Business Days prior to the date of such Borrowing (or, in the case of any determination made under Section 2.10(b) or redenomination under the last sentence of Section 2.17(c), or in the case of a redenomination of any other amount into Dollars as provided herein, on the date of determination or redenomination therein referred to), based upon the spot selling rate at which the Administrative Agent offers to sell such Approved Foreign Currency for Dollars in the London foreign exchange market at approximately 11:00 a.m., London time, for delivery two days later, provided , that with respect to the certification to be made by the Borrower pursuant to Section 5.01(f), such spot selling rate shall be determined by reference to the spot selling rate set forth in the Wall Street Journal on the Business Day immediately preceding the date on which such certification is to be made.

 

“ Dollar LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Dollar Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements in respect of Dollar Letters of Credit that have not yet been reimbursed by or on behalf of any Obligor at such time. The Dollar LC Exposure of any Lender at any time shall be its Applicable Dollar Percentage of the Dollar LC Exposure of all Lenders at such time.

 

“ Dollar Lender ” means (a) on the Effective Date, the Lenders having Dollar Sub-Commitments on Schedule 2.01 under the heading “Dollar Lenders” and (b) thereafter, the Lenders from time to time holding Loans made pursuant to Dollar Sub-Commitments or holding Dollar Sub-Commitments, after giving effect to any assignments thereof permitted by Section 10.04(b) or any Dollar Sub-Commitment Increase pursuant to Section 2.19.

 

“ Dollar Letters of Credit ” means Letters of Credit that utilize the Dollar Sub-Commitments.

 

“ Dollar Loan ” means a Loan denominated in Dollars.

 

“ Dollar Sub-Commitment ” means, as to each Dollar Lender, the obligation of such Dollar Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Dollar Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Dollar Sub-Commitment is set forth on Schedule 2.01 , in the Assignment and Assumption pursuant to which such Lender shall have assumed its Dollar Sub-Commitment or in the Assumption Agreement or Increase Confirmation pursuant to which any Lender shall have increased its Dollar Sub-Commitment pursuant to Section 2.19(b)(ii) or provided a new Commitment pursuant to Section 2.19(b)(iii), as applicable. The initial aggregate amount of the Total Dollar Sub-Commitment is $800,000,000.

 

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“ Dollar Sub-Commitment Increase ” has the meaning assigned to such term in Section 2.19(a).

 

“ Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

“ Domestic Subsidiary ” means any Subsidiary of the Borrower organized under the laws of a State of the United States of America or the District of Columbia.

 

“ EDGAR ” means the Electronic Data Gathering, Analysis, and Retrieval computer system for the receipt, acceptance, review and dissemination of documents submitted to the SEC in electronic format.

 

“ Effective Date ” has the meaning specified in Section 4.01.

 

“ Effective Date Debt Amount ” has the meaning specified in Section 10.02(c).

 

“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

 

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“ Equity Rights ” means, with respect to any Person, any outstanding subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including, without limitation, any shareholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other ownership interests of any type in, such Person.

 

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

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

“ ERISA Event ” means (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an

 

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“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“ Eurocurrency ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

“ Euros ” has the meaning assigned to such term in Section 10.15(a).

 

“ Event of Default ” has the meaning assigned to such term in Article VII.

 

“ Excluded Subsidiary ” means the Subsidiaries of the Borrower listed on Schedule 1.01 .

 

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the Issuing Banks or any other recipient of any payment to be made by or on account of any obligation of the Obligors hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which an Obligor is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Obligors under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.16(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.16(a).

 

“ Existing Credit Agreement ” means the Multi-Year Credit Agreement dated as of December 6, 2001, as amended, among the Borrower, the Subsidiary Guarantors named therein, the Lenders named therein, and JPMorgan Chase Bank, N.A., as Administrative Agent.

 

“ Federal Funds ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Federal Funds Rate. Federal Funds Loans may be denominated only in Dollars.

 

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

 

“ Federal Funds Rate ” means the “offered rate”, as determined by the Administrative Agent, for overnight federal funds.

 

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.

 

“ Foreign Currency ” means at any time any Currency other than Dollars.

 

“ Foreign Currency Equivalent ” means, with respect to any amount in Dollars, the amount of a Foreign Currency that could be purchased with such amount of Dollars using the reciprocal of the foreign exchange rate(s) specified in the definition of the term “Dollar Equivalent,” as determined by the Administrative Agent.

 

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“ Funded Debt ” means all Indebtedness which would, in accordance with GAAP, constitute debt, including:

 

(a) any Indebtedness with a maturity more than one year after the creation of such Indebtedness, including any portion thereof in current liabilities;

 

(b) any Indebtedness outstanding under a revolving credit or similar agreement other than any undrawn letters of credit;

 

(c) any Capital Lease Obligations; and

 

(d) any Guarantee with respect to Funded Debt of another Person, but only to extent that a payment demand has been made to the Borrower or any Restricted Subsidiary under such Guarantee requiring the Borrower or such Restricted Subsidiary to make a payment thereunder with respect to the Funded Debt of such other Person.

 

“ GAAP ” means generally accepted accounting principles in the United States of America.

 

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“ Governmental Authority ” means the government of the United States of America, any other nation or 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.

 

“ Grantors ” means the Borrower and each of its Subsidiaries identified under the caption “GRANTORS” on the signature pages to the Security Agreement.

 

“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

“ Guarantee Assumption Agreement ” means a Guarantee Assumption Agreement between each Subsidiary of the Borrower that is required pursuant to Section 5.09, or otherwise is designated by the Borrower pursuant to Section 5.10 to, become a Subsidiary Guarantor after the Effective Date, and the Administrative Agent, in substantially the form of Exhibit C hereto.

 

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“ Hedging Agreement ” means any swap agreement, cap agreement, collar agreement, put or call, futures contract, forward contract or similar agreement or arrangement entered into in respect of interest rates, foreign exchange rates or prices of commodities.

 

“ Increase Confirmation ” has the meaning assigned to such term in Section 2.19(b).

 

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property

 

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acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent 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 the terms of such Indebtedness provide that such Person is not liable therefor. The Indebtedness of a Person shall not include obligations of such Person to pay rent under operating leases to the extent that such obligations do not constitute Capital Lease Obligations.

 

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

“ Index Debt ” means the senior implied/issuer credit ratings of the Borrower.

 

“ Information Memorandum ” means the Confidential Information Memorandum dated July, 2005 relating to the Borrower and the Transaction.

 

“ Intercreditor Agreement ” means an Intercreditor Agreement between the Borrower (on behalf of itself and its Subsidiaries), the Administrative Agent and purchasers or holders of Indebtedness issued under Senior Note Documents in substantially the form of Exhibit E hereto.

 

“ Interest Election Request ” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.07.

 

“ Interest Payment Date ” means (a) with respect to any ABR Revolving Loan, the last day of each March, June, September and December, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (c) with respect to any Federal Funds Revolving Loan, the last day of each month and (d) with respect to any Swingline Loan, the day that such Loan is required to be repaid.

 

“ Interest Period ” means, with respect to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided , that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on

 

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the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no Interest Period shall extend beyond the Maturity Date. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“ Inventory ” means, collectively, “Inventory” and “Farm Products” as defined in the Security Agreement.

 

“ Investment ” means, for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including, without limitation, any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such short sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person, but excluding any such advance, loan or extension of credit representing the purchase price of programming, advertising, inventory or supplies sold in the ordinary course of business); (c) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person or (d) any Hedging Agreement having the commercial effect of a synthetic or derivative Investment.

 

“ Issuing Bank ” means JPMorgan Chase Bank, N.A. or any one or more other Lenders reasonably acceptable to the Borrower and the Administrative Agent who shall agree to become an issuing bank hereunder, in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Any references herein to the “relevant” Issuing Bank shall mean the issuer of the related Letter of Credit.

 

“ Joint Venture ” means any Investment by the Borrower or any of its Restricted Subsidiaries as a joint venturer or partner in, or lender to, any other Person (other than a Subsidiary) principally engaged in a business in which the Borrower and its Restricted Subsidiaries are permitted by Section 6.03(b) to be engaged.

 

“ LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

 

“ LC Exposure ” means, as at any time, the sum of the Dollar LC Exposure and the Multicurrency LC Exposure.

 

“ Lenders ” has the meaning assigned to such term in the preamble. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

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“ Letter of Credit ” means any letter of credit issued pursuant to this Agreement.

 

“ Leverage Covenant ” has the meaning assigned to such term in Section 6.12(a).

 

“ LIBO Rate ” means, with respect to each day during each Interest Period pertaining to a Eurocurrency Borrowing and denominated in any Currency, the rate per annum determined on the basis of the rate for deposits in such Currency for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen (or otherwise on such screen), then the “ LIBO Rate ” with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in such Currency in the amount of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

 

“ LIBOR ” means, for any Currency, the rate at which deposits denominated in such Currency are offered to leading banks in the London interbank market.

 

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. The interest of a lessor in any property leased pursuant to an operating lease shall not constitute a Lien over such property securing obligations of the related lessee to pay rent under such lease to the extent that such obligations do not constitute Capital Lease Obligations.

 

“ Loan Documents ” means this Agreement, any promissory notes evidencing Loans hereunder and the Security Documents.

 

“ Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

 

“ Local Time ” means, with respect to any Loan denominated in or any payment to be made in any Currency, the local time in the Principal Financial Center for the Currency in which such Loan is denominated or such payment is to be made.

 

“ Material Adverse Effect ” means a material adverse effect on (a) the Transactions, (b) the business, assets, operations, property, prospects or condition, financial or otherwise, of the Obligors, taken as a whole, (c) the ability of the Obligors. taken as a whole, to perform their payment obligations under this Agreement or the other Loan Documents or (d) the rights of or benefits available to the Lenders under this Agreement or the other Loan Documents.

 

“ Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the

 

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Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $25,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

 

“ Material Subsidiary ” means any Restricted Subsidiary of the Borrower (other than an Excluded Subsidiary) that is a Domestic Subsidiary and (a) the portion of Consolidated Total Assets attributable, on a stand-alone basis, to such Restricted Subsidiary exceeds 5% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of the end of the most recently completed fiscal quarter or (b) the portion of Consolidated EBITDA (after excluding all intercompany transactions) attributable, on a stand-alone basis, to such Restricted Subsidiary exceeds $50,000,000; provided , that (i) any Subsidiary that directly or indirectly owns a Material Subsidiary shall itself be a Material Subsidiary and (ii) on and after the Security Termination Date, in the event Subsidiaries that would otherwise not be Material Subsidiaries shall in the aggregate account for a percentage in excess of 20% of the Consolidated Total Assets or 20% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries as of the end of and for the most recently completed fiscal quarter, then one or more of such Subsidiaries designated by the Borrower (or, if the Borrower shall make no designation, one or more of such Subsidiaries in descending order based on their respective contributions to Consolidated Total Assets), shall be included as Material Subsidiaries to the extent necessary to eliminate such excess.

 

“ Maturity Date ” means August 19, 2010; provided , that if such date is not a Business Day the Maturity Date shall be the immediately preceding Business Day.

 

“ Moody’s ” means Moody’s Investors Service, Inc.

 

“ Multicurrency LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Multicurrency Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements in respect of Multicurrency Letters of Credit that have not yet been reimbursed by or on behalf of any Obligor at such time. The Multicurrency LC Exposure of any Lender at any time shall be its Applicable Multicurrency Percentage of the total Multicurrency LC Exposure at such time.

 

“ Multicurrency Lender ” means (a) on the Effective Date, the Lenders having Multicurrency Sub-Commitments on Schedule 2.01 under the heading “Multicurrency Lenders” and (b) thereafter, the Lenders from time to time holding Loans made pursuant to Multicurrency Sub-Commitments or holding Multicurrency Sub-Commitments, after giving effect to any assignments thereof permitted by Section 10.04(b) or any Multicurrency Sub-Commitment Increase pursuant to Section 2.19(a).

 

“ Multicurrency Letters of Credit ” means Letters of Credit that utilize the Multicurrency Sub-Commitments.

 

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“ Multicurrency Loan ” means a Loan denominated in an Approved Foreign Currency.

 

“ Multicurrency Sub-Commitment ” means, as to each Multicurrency Lender, the obligation of such Multicurrency Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, in each case, denominated in Dollars or in an Approved Foreign Currency, expressed as a Dollar amount representing the Dollar Equivalent of the maximum aggregate amount of such Lender’s Revolving Multicurrency Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Multicurrency Sub-Commitment is set forth on Schedule 2.01 , in the Assignment and Assumption pursuant to which such Lender shall have assumed its Multicurrency Sub-Commitment or in the Assumption Agreement or Increase Confirmation pursuant to which any Lender shall have increased its Multicurrency Sub-Commitment pursuant to Section 2.19(b)(ii) or provided a new Commitment pursuant to Section 2.19(b)(iii), as applicable. The initial aggregate amount of the Total Multicurrency Sub-Commitment is $200,000,000.

 

“ Multicurrency Sub-Commitment Increase ” has the meaning assigned to such term in Section 2.19.

 

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“ Obligors ” means, collectively, the Borrower, the Subsidiary Guarantors and the Grantors, in each case from time to time party to any Loan Document.

 

“ Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.

 

“ Pari Passu Debt ” means any Indebtedness (a) in respect of which the Borrower is primarily liable as the borrower and the Subsidiary Guarantors (but no other Subsidiary) are liable as guarantors, (b) that is secured only by the Lien created by the Security Agreement and (c) that the Required Lenders consent to as being treated as Pari Passu Debt. All of the requirements set forth in the preceding clauses (a), (b) and (c) must be satisfied in order for any Indebtedness to be Pari Passu Debt.

 

“ Participant ” has the meaning set forth in Section 10.04(c).

 

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“Permitted Encumbrances” means:

 

(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.04;

 

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(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;

 

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

 

(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

(e) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;

 

(f) Liens securing judgments to the extent, for an amount and for a period not resulting in an Event of Default in clause (k) under Article VII; and

 

(g) Liens created under the Federal Packers and Stockyards Act, as amended;

 

provided , that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

 

“ Permitted Investments ” means:

 

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

 

(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

 

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

 

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(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;

 

(e) common stock of the Borrower; and

 

(f) capital stock of corporations in similar or related businesses to that of the Borrower and listed on the New York Stock Exchange, NASDAQ, the American Stock Exchange.

 

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

 

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

 

“ PP&E ” has the meaning assigned to such term in Section 6.02(j)(ii).

 

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection with extension of credit to debtors); each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

“ Principal Financial Center ” means, in the case of any Currency, the principal financial center where such Currency is cleared and settled, as determined by the Administrative Agent.

 

“ Public Bond Documents ” means, collectively, the following instruments and agreements:

 

(a) the Indenture, dated as of October 23, 2001, among the Borrower and SunTrust Bank, as trustee, relating to the Borrower’s $300,000,000 8% Senior Notes due 2009;

 

(b) the Indenture, dated as of May 21, 2003, among the Borrower and SunTrust Bank, as trustee, relating to the Borrower’s $350,000,000 7 ¾% Senior Notes due 2013; and

 

(c) the Indenture, dated as of August 4, 2004, among the Borrower and SunTrust Bank, as trustee, relating to the Borrower’s $600,000,000 7% Senior Notes due 2011.

 

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“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Borrower or any of its Restricted Subsidiaries pursuant to which the Borrower or any of its Restricted Subsidiaries may (a) sell, convey or otherwise transfer to (i) a Securitization Entity (in the case of a transfer by the Borrower or any of its Restricted Subsidiaries), (ii) any other Person (in the case of a transfer by a Securitization Entity), or (iii) a third party that is financing the same in a customary repurchase arrangement in contemplation of a subsequent transfer to a Securitization Entity in a Receivables Financing or (b) grant a security interest in, any Accounts Receivable (whether now existing or arising in the future) of the Borrower or any of its Restricted Subsidiaries and any assets related thereto, including all collateral securing such Accounts Receivable, all contracts and all guarantees or other obligations in respect of such Accounts Receivable, proceeds of such Accounts Receivable and other assets which are customarily transferred, or in respect of which security interests are customarily granted, in connection with asset securitization transactions involving Accounts Receivable.

 

“ Receivables Repurchase Obligation ” means any obligation of the Borrower or any of its Restricted Subsidiaries to repurchase one or more Accounts Receivable transferred in a Receivables Financing and arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of an Account Receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the Borrower or any of its Restricted Subsidiaries.

 

“ Register ” has the meaning set forth in Section 10.04(b)(iv).

 

“ Regulation U ” means Regulation U of the Board as in effect from time to time.

 

“ Related Parties ” means, 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.

 

“ Required Lenders ” means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments at such time.

 

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any shares of any class of capital stock of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock of the Borrower or any Subsidiary or any option, warrant or other right to acquire any such shares of capital stock of the Borrower or any Subsidiary.

 

“ Restricted Subsidiary ” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

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“ Revolving Credit Exposure ” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and its Dollar LC Exposure, Multicurrency LC Exposure and Swingline Exposure at such time.

 

“ Revolving Dollar Credit Exposure ” means, with respect to any Dollar Lender at any time, the sum of the outstanding principal amount of such Dollar Lender’s Dollar Loans and its Dollar LC Exposure and Swingline Exposure at such time.

 

“ Revolving Loan ” means a Loan made pursuant to Section 2.03.

 

“ Revolving Multicurrency Credit Exposure ” means, with respect to any Multicurrency Lender at any time, the sum of the outstanding principal amount of such Multicurrency Lender’s Multicurrency Loans and its Multicurrency LC Exposure at such time.

 

“ S&P ” means Standard & Poor’s Ratings Services.

 

“ SEC ” means the Securities and Exchange Commission or any successor thereto.

 

“ Securitization Entity ” means a wholly-owned Subsidiary of the Borrower or any Restricted Subsidiary (or another Person formed for the purposes of engaging in a Receivables Financing with the Borrower or any Restricted Subsidiary in which the Borrower or any Restricted Subsidiary makes an Investment and to which the Borrower or any Restricted Subsidiary sells, conveys or otherwise transfers Accounts Receivable and related assets) which engages in no activities and incurs no Indebtedness or other liabilities or obligations other than in connection with the financing of Accounts Receivable of the Borrower and its Restricted Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Securitization Entity and:

 

(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Restricted Subsidiary other than pursuant to Standard Securitization Undertakings, (ii) is recourse to or obligates the Borrower or any other Subsidiary of the Borrower in any way other than pursuant to Standard Securitization Undertakings or (iii) is secured directly or indirectly, contingently or otherwise, by any property or asset of the Borrower or any Restricted Subsidiary, other than pursuant to Standard Securitization Undertakings, and

 

(b) as to which neither the Borrower nor any Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

 

Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate of the Borrower certifying that such designation complied with the foregoing conditions.

 

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“ Security Agreement ” means a Collateral Agency and Security Agreement between the Grantors and the Collateral Agent in substantially the form of Exhibit B hereto.

 

“ Security Documents ” means the Security Agreement, the Intercreditor Agreement and all Uniform Commercial Code financing statements required by the Security Agreement to be filed with respect to the security interests in personal property created pursuant to the Security Agreement.

 

“ Security Termination Date ” means the date, if any, that the Security Agreement is terminated in accordance with Section 10.02(c)(ii).

 

“ Senior Note Documents ” means, collectively, the following instruments and agreements:

 

(a) the Second Amended and Restated Note Purchase Agreement dated as of October 29, 2004 (as amended by Amendment No. 1 thereto, dated as of February 15, 2005), among the Borrower and the Purchasers referred to therein relating to the Borrower’s $9,852,942 8.41% Series B Senior Secured Notes due August 1, 2006, the Borrower’s $100,000,000 8.52% Series F Senior Secured Notes due August 1, 2006 and the Borrower’s $14,000,000 9.85% Series G Senior Secured Notes due November 1, 2006,

 

(b) the Second Amended and Restated Note Purchase Agreement dated as of October 29, 2004 (as amended by Amendment No. 1 thereto, dated as of February 15, 2005), among the Borrower and the Purchasers referred to therein relating to the Borrower’s $100,000,000 7.89% Series I Senior Secured Notes due October 1, 2009, the Borrower’s $50,000,000 Variable Rate Series J Senior Secured Notes due October 1, 2009, the Borrower’s $50,000,000 8.44% Series K Senior Secured Notes due October 1, 2009 and the Borrower’s $25,000,000 LIBOR Rate Series L Senior Secured Notes due October 1, 2009,

 

(c) the Amended and Restated Note Purchase Agreement, dated as of October 29, 2004 (as amended by Amendment No. 1 thereto, dated as of February 15, 2005) among the Borrower and the Purchasers referred to therein relating to the Borrower’s $75,000,000 8.25% Series M Senior Secured Notes due March 2, 2006,

 

(d) the Amended and Restated Note Purchase Agreement, dated as of October 29, 2004 (as amended by Amendment No. 1 thereto, dated as of February 15, 2005) among the Borrower and the Purchasers referred to therein relating to the Borrower’s $25,000,000 Reset Rate Series O 5/10 Year Senior Secured Notes and the Borrower’s $30,000,000 Adjustable Rate Series P 5/10 Year Senior Secured Notes.

 

(e) any other agreement pursuant to which Indebtedness (other than Indebtedness constituting Subordinated Indebtedness) of the Borrower or any of its Domestic Subsidiaries is issued pursuant to Section 6.01(f), that is required to be treated as a “Note Purchase Agreement” for purposes of the Intercreditor Agreement pursuant to Section 3.03 thereto, in each case, together with all related guaranties, mortgages and security agreements permitted under the Intercreditor Agreement.

 

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“ Solvent ” means, when used with respect to the Borrower and its Subsidiaries, as of any date of determination, (a) the aggregate value of all properties of the Borrower and its Subsidiaries at their present fair saleable value (i.e., the amount which may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, regular market value to mean the amount which could be obtained for the property in question within such period by a capable and diligent business person from an interested buyer who is willing to purchase under ordinary selling conditions), exceeds the aggregate amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of the Borrower and its Subsidiaries, (b) the Borrower and its Subsidiaries will not, on a consolidated basis, have an unreasonably small capital with which to conduct their business operations as contemplated to be conducted and (c) the Borrower and its Subsidiaries will have, on a consolidated basis, sufficient cash flow to enable them to pay their debts as they mature.

 

“ Standard Securitization Undertakings ” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Borrower or any Restricted Subsidiary which the Borrower has determined in good faith to be either customary in a Receivables Financing or, when taken as a whole, to be more favorable to the Borrower than in a customary Receivables Financing including, without limitation, those relating to the servicing of the related Accounts Receivable, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.

 

“ Statutory Reserve Rate ” means for any day (or for the Interest Period for any Eurocurrency Borrowing), a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the arithmetic mean of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“ Sub-Commitment ” shall refer, as applicable, to a Dollar Sub-Commitment or a Multicurrency Sub-Commitment.

 

“ Subordinated Indebtedness ” means, collectively, (a) Indebtedness of the Borrower in respect of its 7  ⁵ / 8 % Senior Subordinated Notes due 2008, issued by the Borrower pursuant to an Indenture, dated as of February 9, 1998, among the Borrower and SunTrust Bank, Atlanta, as trustee, and (b) any additional Funded Debt of the Borrower (and in respect of which none of its Subsidiaries is directly or indirectly obligated) that is subordinated to the obligations of the Borrower to the Lenders hereunder, which is incurred upon terms and conditions no less

 

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favorable to the Borrower and its Subsidiaries (as determined by the Administrative Agent, in its sole discretion) than the terms and conditions set forth on the date hereof in the Indenture for the 7  ⁵ / 8 % Senior Subordinated Notes due 2008 referred to above (except in respect of interest), which shall have no provisions for a sinking fund or other scheduled reductions of principal prior to final maturity and which shall have a final maturity date for the repayment of principal not earlier than the second anniversary of the Maturity Date.

 

“ subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

“ Subsidiary ” means any subsidiary of the Borrower.

 

“ Subsidiary Guarantor ” has the meaning assigned to such term in the preamble.

 

“ Swingline Exposure ” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Dollar Percentage of the total Swingline Exposure at such time.

 

“ Swingline Lender ” means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder.

 

“ Swingline Loan ” means a Loan made pursuant to Section 2.04.

 

“ Syndication Agent ” has the meaning assigned to such term in the preamble.

 

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

“ Total Commitment ” means, at any time, the aggregate amount of the Commitments as in effect at such time.

 

“ Total Dollar Sub-Commitment ” means, at any time, the aggregate amount of the Dollar Sub-Commitments as in effect at such time.

 

“ Total Multicurrency Sub-Commitment ” means, at any time, the aggregate amount of the Multicurrency Sub-Commitments as in effect at such time.

 

“ Transactions ” means (i) with respect to the Borrower, the execution, delivery and performance by the Borrower of Loan Documents to which it is a party, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder and, (ii) with respect to any Obligor (other than the Borrower), the execution, delivery and performance by such Obligor of the Loan Documents to which it is a party.

 

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“ Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Federal Funds Rate or the Alternate Base Rate.

 

“ Unrestricted Subsidiaries ” means (a) any Subsidiary of the Borrower that shall have been designated as an “Unrestricted Subsidiary” in accordance with the provisions of Section 1.06 and (b) any Subsidiary of an Unrestricted Subsidiary.

 

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

Section 1.02. Classification of Loans and Borrowings . For purposes of this Agreement, Loans may be classified and referred to by Class ( e.g. , a “Revolving Loan”) or by Type ( e.g. , a “Eurocurrency Loan”) or by Class and Type ( e.g. , a “Eurocurrency Revolving Loan”). Borrowings also may be classified and referred to by Class ( e.g. , a “Revolving Borrowing”) or by Type ( e.g. , a “Eurocurrency Borrowing”) or by Class and Type ( e.g. , a “Eurocurrency Revolving Borrowing”). Loans and Borrowings may also be identified by Currency.

 

Section 1.03. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

Section 1.04. Accounting Terms; GAAP . 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 Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower 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 notice shall have been withdrawn or such provision amended in accordance herewith.

 

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Section 1.05. Currencies, Currency Equivalents. At any time, any reference in the definition of the term “Approved Foreign Currency” or in any other provision of this Agreement to the Currency of any particular nation means the lawful currency of such nation at such time whether or not the name of such Currency is the same as it was on the date hereof. Except as provided in Section 2.10(b) and Section 2.17(c), for purposes of determining (i) whether the amount of any Borrowing, together with all other applicable Borrowings then outstanding or to be borrowed at the same time as such Borrowing, would exceed the aggregate amount of the Commitments or applicable Sub-Commitments, (ii) the aggregate unutilized amount of the Commitments or either Sub-Commitment and (iii) the aggregate outstanding principal amount of Borrowings, the outstanding principal amount of any Borrowing that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent of the amount of the Foreign Currency of such Borrowing determined as of the date of such Borrowing (determined in accordance with the last sentence of the definition of the term “Borrowing”). Wherever in this Agreement in connection with a Borrowing or Loan an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such Foreign Currency).

 

Section 1.06. Subsidiaries; Designation of Unrestricted Subsidiaries. The Borrower may designate any newly acquired or newly formed Subsidiary at the time such Subsidiary is acquired or formed, and may designate any entity that becomes a Subsidiary that immediately prior to such time was a Joint Venture, to be an “Unrestricted Subsidiary” for purposes of this Agreement, by delivering to the Administrative Agent a certificate of a Financial Officer (and the Administrative Agent shall promptly forward a copy of such certificate to each Lender) setting forth such designation and stating that the conditions set forth in this Section 1.06 have been satisfied with respect to such designation; provided that no such designation shall be effective unless (x) at the time of such designation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (y) at the time of such designation and at all times thereafter for clauses (a) and (d) below or for all times after November 1, 2006 for clauses (b) and (c) below:

 

(a) no portion of the Indebtedness or any payment obligation (contingent or otherwise) of such Subsidiary (A) is guaranteed by the Borrower or any Restricted Subsidiary or (B) is recourse to or obligates the Borrower or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than in respect of liabilities for which the Borrower or a Restricted Subsidiary is jointly obligated with such Subsidiary by operation of law, such as for tax or ERISA claims),

 

(b) such Subsidiary has no Indebtedness that, if in default in any respect (including a payment default), would permit (upon notice, lapse of time or both) any holder of any Indebtedness of the Borrower or its Restricted Subsidiaries to declare a default on such Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity, and

 

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(c) such Subsidiary has no obligation (other than Indebtedness, as to which the provisions of the foregoing clause (b) shall apply) that, if not paid when due, would permit (upon notice, lapse of time or both) any holder of any Indebtedness of the Borrower or its Restricted Subsidiaries to declare a default on such Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity, and

 

(d) such Subsidiary is not a Grantor or a Subsidiary Guarantor.

 

Any designation of a Subsidiary (or a Joint Venture) as an Unrestricted Subsidiary shall be deemed an Investment in an amount equal to the fair market value of such Subsidiary (or, in the case of a newly acquired or newly-formed Subsidiary, the amount of the investment by the Borrower and its Restricted Subsidiary therein) determined in good faith by the board of directors of the Borrower) and any such designation shall be permitted only if it complies with the provisions of Section 6.04.

 

In addition to the foregoing, the Borrower may designate any Unrestricted Subsidiary as a “Restricted Subsidiary” for purposes of this Agreement, by delivering to the Administrative Agent a certificate of a Financial Officer (and the Administrative Agent shall promptly forward a copy of such certificate to each Lender) setting forth such designation. Any designation of an Unrestricted Subsidiary as a Restricted Subsidiary shall be deemed an Acquisition of such Unrestricted Subsidiary and shall be permitted only to the extent permitted as an Acquisition under Section 6.04, and the certificate of a Financial Officer setting forth such designation shall state that such Acquisition is so permitted.

 

ARTICLE II

 

THE CREDITS

 

Section 2.01. Commitments . Subject to the terms and conditions set forth herein:

 

(a) each Dollar Lender agrees to make Revolving Loans to the Borrower in Dollars from time to time during the Availability Period in an aggregate principal amount (i) that will not result in such Lender’s Revolving Dollar Credit Exposure exceeding such Lender’s Dollar Sub-Commitment or (ii) the sum of the Revolving Credit Exposures of all Lenders exceeding the Total Commitment; and

 

(b) each Multicurrency Lender agrees to make Revolving Loans to the Borrower in Dollars or one or more Approved Foreign Currencies from time to time during the Availability Period in an aggregate principal amount (i) that will not result in such Lender’s Revolving Multicurrency Credit Exposure exceeding such Lender’s Multicurrency Sub-Commitment or (ii) the sum of the Revolving Credit Exposures of all Lenders exceeding the Total Commitment.

 

Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.

 

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Section 2.02. Loans and Borrowings

 

(a) Obligations Several . Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans of the same Currency and Type made by the applicable Lenders ratably in accordance with their respective applicable Sub-Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided , that the Commitments (and Sub-Commitments) of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b) Types . Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR Loans, Federal Funds Loans or Eurocurrency Loans denominated in a single Currency as the Borrower may request in accordance herewith and each Swingline Loan shall be comprised of an ABR Loan. Each Federal Funds Loan and each ABR Loan (whether a Revolving Loan or a Swingline Loan) shall be denominated in Dollars. Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(c) Minimum Amounts . At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000, or (as applicable) the Foreign Currency Equivalent of said amounts. At the time that each ABR Borrowing and each Federal Funds Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Borrowing or a Federal Funds Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Dollar Sub-Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000. Borrowings of more than one Class, Currency and Type may be outstanding at the same time; provided , that there shall not at any time be more than a total of nine Eurocurrency Borrowings outstanding.

 

(d) Certain Limits on Interest Periods . Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

 

Section 2.03. Requests for Revolving Loan .

 

(a) Notification to Administrative Agent . To request a Revolving Loan, the Borrower shall notify the Administrative Agent of such request by telephone (i) in the case of a Eurocurrency Borrowing denominated in an Approved Foreign Currency, not later than 11:00 a.m., New York City time, five Business Days before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing, (iii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing or (iv) in the case of a Federal Funds Borrowing, not

 

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later than 12:00 noon, New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(b) Content of Notification . Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i) the aggregate amount and Currency of the requested Borrowing;

 

(ii) the date of such Borrowing, which shall be a Business Day;

 

(iii) in the case of a Borrowing denominated in Dollars, whether such Borrowing is to be an ABR Borrowing, a Federal Funds Borrowing or a Eurocurrency Borrowing and whether such Borrowing shall constitute a utilization of the Dollar Sub-Commitment or Multicurrency Sub-Commitment;

 

(iv) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

 

(v) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06.

 

(c) Notice by Administrative Agent to Lenders . Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each applicable Lender of the details thereof and of the amount and Currency of such Lender’s Loan to be made as part of the requested Borrowing.

 

(d) Certain Presumptions . If no election as to the Currency of a Borrowing is specified in a Borrowing Request, then the Borrower shall be deemed to have requested a Borrowing denominated in Dollars. If no election as to the Type of a Borrowing is specified, then the requested Borrowing shall be a Federal Funds Borrowing unless an Approved Foreign Currency has been specified, in which case the Borrower shall be deemed to have requested a Eurocurrency Borrowing denominated in such Approved Foreign Currency. If no election as to the Sub-Commitment of a Borrowing is specified, then the Borrower shall be deemed to have requested a Borrowing under the Dollar Sub-Commitment; provided , that, if at such time the Dollar Sub-Commitment shall be fully drawn, then the Borrower shall be deemed to have requested a Borrowing in Dollars under the Multicurrency Sub-Commitment. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

Section 2.04. Swingline Loans .

 

(a) Obligation of Swingline Lender . Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Availability Period, in Dollars, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline

 

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Loans exceeding $25,000,000, (ii) the sum of the total Revolving Dollar Credit Exposures exceeding the Total Dollar Sub-Commitment or (iii) the sum of the Revolving Credit Exposures of all Lenders exceeding the Total Commitment; provided , that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

 

(b) Requests for Swingline Loans . To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 3:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e), by remittance to the relevant Issuing Bank) by 4:00 p.m., New York City time, on the requested date of such Swingline Loan.

 

(c) Participation by Other Lenders . The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Dollar Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Dollar Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Dollar Lender, specifying in such notice such Lender’s Applicable Dollar Percentage of such Swingline Loan or Loans. Each Dollar Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Dollar Percentage of such Swingline Loan or Loans. Each Dollar Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Dollar Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Dollar Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Dollar Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear.

 

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The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. Notwithstanding the foregoing, a Dollar Lender shall not have any obligation to acquire a participation in a Swingline Loan pursuant to this paragraph if an Event of Default shall have occurred and be continuing at the time such Swingline Loan was made and such Lender shall have notified the Swingline Lender in writing, at least one Business Day prior to the time such Swingline Loan was made, that such Event of Default has occurred and that such Lender will not acquire participations in Swingline Loans made while such Event of Default is continuing.

 

(d) Swingline Loans Payable on Demand . All Swingline Loans made hereunder shall be payable on demand of the Swingline Lender made at any time upon the Borrower (and, if not so demanded sooner, in any event shall be payable as provided in Section 2.09(a) hereof).

 

Section 2.05. Letters of Credit .

 

(a) Obligation to Issue Letters of Credit . Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit by an Issuing Bank for its own account or for the account of any Restricted Subsidiary (provided, that if such Restricted Subsidiary is not a Subsidiary Guarantor, the Borrower or another Subsidiary Guarantor shall be a co-applicant, and be jointly and severally liable, with respect to each such Letter of Credit issued for the account of such Restricted Subsidiary), either under the Dollar Sub-Commitments or under the Multicurrency Sub-Commitments, in a form reasonably acceptable to the Administrative Agent and the relevant Issuing Bank, at any time and from time to time during the Availability Period. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the relevant Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

 

(b) Requests for Letters of Credit . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the relevant Issuing Bank) to the relevant Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section 2.05), the Currency (which shall be Dollars or an Approved Foreign Currency) and amount of such Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit is to be made under the Dollar Sub-Commitments or the Multicurrency Sub-Commitments and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the relevant Issuing Bank, the Borrower also shall submit a letter of credit application on the such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving

 

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effect to such issuance, amendment, renewal or extension (i) the Dollar LC Exposure shall not exceed $200,000,000 and the total Revolving Dollar Credit Exposures shall not exceed the Total Dollar Sub-Commitment, (ii) the Multicurrency LC Exposure shall not exceed $25,000,000 or the Foreign Currency Equivalent thereof and the total Revolving Multicurrency Credit Exposures shall not exceed the Total Multicurrency Sub-Commitment and (iii) the sum of the Revolving Credit Exposures of all Lenders shall not exceed the Total Commitment; and prior to the issuance, amendment, renewal or extension of each Letter of Credit, each Issuing Bank shall have requested and received a confirmation from the Administrative Agent that each of the foregoing shall be true and correct.

 

(c) Term of Letters of Credit . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Maturity Date.

 

(d) Participations by Other Lenders . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof), and without any further action on the part of any Issuing Bank or the Lenders, (i) in the case of a Dollar Letter of Credit, the Issuing Bank hereby grants to each Dollar Lender (other than the relevant Issuing Bank), and each Dollar Lender hereby acquires from such Issuing Bank a participation in such Letter of Credit equal to such Lender’s Applicable Dollar Percentage, and (ii) in the case of a Multicurrency Letter of Credit, the relevant Issuing Bank hereby grants to each Multicurrency Lender (other than the relevant Issuing Bank), and each Multicurrency Lender hereby acquires from such Issuing Bank a participation in such Letter of Credit equal to such Lender’s Applicable Multicurrency Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of each relevant Issuing Bank, such Lender’s Applicable Dollar Percentage (in the case of a Dollar Letter of Credit) and such Lender’s Applicable Multicurrency Percentage (in the case of a Multicurrency Letter of Credit) of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section 2.05, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Dollar Lender and each Multicurrency Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Dollar Letters of Credit and Multicurrency Letters of Credit, as the case may be, is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Dollar Sub-Commitment or Multicurrency Sub-Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

 

(e) Obligation of Borrower to Reimburse . If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to

 

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such time on such date, then not later than 12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; provided , that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.04 that such payment be financed with a Eurocurrency Borrowing of the Currency in which such Letter of Credit is issued (or in the case of a Borrowing of Dollars) an ABR Revolving Borrowing, a Federal Funds Borrowing or Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Eurocurrency Borrowing, ABR Revolving Borrowing, a Federal Funds Borrowing or Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Dollar Percentage or Applicable Multicurrency Percentage, as the case may be, thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Dollar Percentage or Applicable Multicurrency Percentage, as the case may be, of the payment then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the relevant Issuing Bank, the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the relevant Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank, as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the funding of Eurocurrency Loans, ABR Revolving Loans, Federal Funds Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

 

(f) Obligation of Borrower Absolute, Etc . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:

 

(i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein;

 

(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or this Agreement;

 

(iii) the existence of any claim, setoff, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement or any other related or unrelated agreement or transaction;

 

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(iv) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;

 

(v) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; and

 

(vi) any other act or omission to act or delay of any kind of the relevant Issuing Bank, the Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of the Borrower’s obligations hereunder.

 

Neither the Administrative Agent, the Lenders, the Issuing Banks, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the relevant Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise the standard of care agreed hereunder (as set forth in the next sentence) to be applicable when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that each Issuing Bank shall be deemed to have exercised the agreed standard of care in the absence of gross negligence or wilful misconduct on the part of such Issuing Bank when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof, and shall be deemed to have failed to exercise the agreed standard of care only if it shall have engaged in gross negligence or wilful misconduct when making such determination. In furtherance of the foregoing and without limiting the generality thereof, it is understood that the Issuing Banks may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit; provided , that, notwithstanding the foregoing, the relevant Issuing Bank shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit.

 

(g) Notification by Issuing Bank to Administrative Agent . Each relevant Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it. Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by

 

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telecopy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided , that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the relevant participating Lenders with respect to any such LC Disbursement.

 

(h) Interest on LC Disbursements . If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof (which, in the case of Multicurrency Letters of Credit, shall be converted into Dollars) shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans; provided , that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section 2.05, then Section 2.12(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the relevant Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

 

(i) Replacement of Issuing Bank . Any Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.11(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

 

(j) Cash Collateral . If (i) any Event of Default shall have occurred and be continuing, (ii) the aggregate amount of Revolving Dollar Credit Exposure of all Dollar Lenders hereunder exceeds the Total Dollar Sub-Commitment or (iii) the aggregate amount of Revolving Multicurrency Credit Exposure of all Multicurrency Lenders hereunder exceeds the Total Multicurrency Sub-Commitment, then on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in Dollars equal to (x) in the case of the foregoing clause (i), the LC Exposure as of such date, converting the aggregate Multicurrency LC Exposure into the Dollar Equivalent thereof at that date, and (y) in the case of the foregoing clauses (ii) and (iii), the amount of the relevant excess plus (in each of the cases referred to in the foregoing clauses (i), (ii) and (iii)) any accrued and unpaid interest thereon; provided , that the obligation to

 

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deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement.

 

The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the relevant Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Obligors under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default or the renewal of a Letter of Credit or an excess of the Revolving Credit Exposure, as the case may be, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived or, in the case of a renewal of a Letter of Credit that would cause the expiration date of such Letter of Credit to extend beyond the Maturity Date, after all amounts drawn or able to be drawn under Letters of Credit have been reimbursed by the Borrower or, in the case of an excess of the Revolving Credit Exposure, after such excess has been eliminated.

 

(k) Certain Existing Letters of Credit . To the extent that there are outstanding on the Effective Date pursuant to the Existing Credit Agreement one or more letters of credit issued by JPMorgan Chase Bank, N.A. (as the “Issuing Lender” thereunder) then, on the Effective Date, each of such letters of credit is hereby designated a “Dollar Letter of Credit” under and for all purposes of this Agreement. In that connection, the Borrower hereby represents and warrants to the Issuing Lenders, each Dollar Lender and the Administrative Agent that each such letter of credit satisfies the requirements of this Section 2.05 (including paragraph (c) above).

 

Section 2.06. Funding of Borrowings .

 

(a) Manner of Funding . Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Local Time in the location of the Administrative Agent’s Account for the relevant Currency, to the Administrative Agent’s Account for such Currency; provided , that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent and designated by the Borrower in the applicable Borrowing Request; provided , that Eurocurrency Loans or ABR Revolving Loans or Federal Funds Loans, in any case made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the relevant Issuing Bank.

 

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(b) Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) for the first three Business Days, (A) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for Loans in the applicable Currency or (B) in the case of the Borrower, the Federal Funds Effective Rate (or, if such Loan is denominated in an Approved Foreign Currency, at such other rate as the Administrative Agent shall determine is appropriate in the circumstances) and (ii) thereafter, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Nothing herein shall limit the rights of the Borrower against any Lender that fails to make Loans hereunder and each Lender agrees that, to the extent that the Borrower was required to make any payments pursuant to this Section 2.06(b) on account of the failure by such Lender to make Loans hereunder, it shall promptly reimburse the Borrower for such amounts.

 

Section 2.07. Interest Elections .

 

(a) Interest Election Requests . Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.07; provided , however , that (i) a Borrowing denominated in one Currency may not be converted to a Borrowing in a different Currency and (ii) a Eurocurrency Borrowing denominated in an Approved Foreign Currency may not be converted to a Borrowing of a different Type. Subject to the foregoing, the Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section 2.07 shall not apply to Swingline Borrowings, which may not be converted or continued.

 

Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then (A) no outstanding Borrowing denominated in Dollars may be

 

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converted to or continued as a Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period therefor and (C) no outstanding Eurocurrency Borrowing denominated in an Approved Foreign Currency may have an Interest Period of more than one month’s duration.

 

(b) Notification by Borrower . To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(c) Content of Notifications . Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii) whether the resulting Borrowing is to be an ABR Borrowing, a Federal Funds Borrowing or a Eurocurrency Borrowing; and

 

(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

 

If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d) Notice by Administrative Agent to Lenders . Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e) Certain Presumptions . If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, (i) if such Borrowing is denominated in Dollars, at the end of such Interest Period such Borrowing shall be converted to a Federal Funds Borrowing, and (ii) if such Borrowing is denominated in a Foreign Currency, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

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Section 2.08. Termination or Reduction of Commitments .

 

(a) Scheduled Termination . Unless previously terminated, the Commitments shall terminate on the Maturity Date.

 

(b) Voluntary Reductions . The Borrower may at any time terminate, or from time to time reduce, the Commitments (and Sub-Commitments); provided , that (i) each reduction of the Commitments (and of either Sub-Commitment) shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments (and either Sub-Commitment) if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the sum of the Revolving Credit Exposures would exceed the Total Commitment, the sum of the Revolving Dollar Credit Exposure would exceed the Total Dollar Sub-Commitment or the sum of the Revolving Multicurrency Credit Exposures would exceed the Total Multicurrency Sub-Commitment.

 

(c) Notifications, Etc . The Borrower shall notify the Administrative Agent of (i) any election to terminate or reduce the Commitments under paragraph (b) of this Section 2.08, and (ii) in the case of a reduction, the amount of such reduction (if any) to be allocated to the Dollar Sub-Commitment and Multicurrency Sub-Commitment hereunder, at least three Business Days prior to the effective date of such termination or reduction, specifying such election, the aggregate amount of a reduction and any allocation as aforesaid, and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided , that a notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments (and of Sub-Commitments) shall be permanent. Each reduction of the Commitments and Sub-Commitments shall be made ratably among the Lenders in accordance with their respective Commitments and Sub-Commitments, as the case may be.

 

Section 2.09. Repayment of Loans; Evidence of Debt .

 

(a) Repayment of Loans . The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline Lender the then-unpaid principal amount of each Swingline Loan on the earlier of the date such repayment is demanded pursuant to Section 2.04(d) hereof, the Maturity Date and the first date after such Swingline Loan is made that is the 15 ^th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided , that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then outstanding.

 

(b) Maintenance of Accounts by Lenders . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts and Currency of principal and interest payable and paid to such Lender from time to time hereunder.

 

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(c) Maintenance of Accounts by Administrative Agent . The Administ