Published CUSIP Number:
210738AA8
REVOLVING CREDIT
AGREEMENT
Dated as of April 28,
2005
by and among
CONTAINER
APPLICATIONS INTERNATIONAL, INC.
(the “Borrower”)
THE LENDERS LISTED
ON SCHEDULE 1 HERETO
and
BANK OF AMERICA,
N.A.
as administrative agent (the “Administrative
Agent”)
with
BANC OF AMERICA
SECURITIES LLC ,
acting as lead arranger and book manager (the
“Arranger”)
and
LASALLE BANK
NATIONAL ASSOCIATION
as Syndication Agent (the “Syndication Agent”)
and
UNION BANK OF
CALIFORNIA, N.A.
as co-agent (the “Co-Agent”)
TABLE OF
CONTENTS
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1. DEFINITIONS AND RULES OF
INTERPRETATION
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1
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Rules of Interpretation
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27
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2. THE REVOLVING CREDIT FACILITY
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28
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2.1. Commitment to Lend
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28
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2.3. Reduction of Total Commitment
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29
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2.5. Interest on Revolving Credit Loans and
Swing Line Loans
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30
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2.6. Requests for Revolving Credit
Loans
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30
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2.7. Conversion Options
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31
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2.7.1. Conversion to Different Type of
Revolving Credit Loan
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31
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2.7.2. Continuation of Type of Revolving
Credit Loan
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31
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2.7.3. Eurodollar Rate Loans
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32
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2.8. Funds for Revolving Credit
Loans
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32
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2.8.1. Funding Procedures
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32
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2.8.2. Advances by Administrative Agent
. (a)
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32
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2.8.3. Obligations of Lenders
Several
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33
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2.9. Change in Borrowing Base
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33
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2.10. Swing Line Loans
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34
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2.10.1. The Swing Line
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34
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2.10.2. Borrowing Procedure
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34
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2.10.3. Refinancing of Swing Line
Loans
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35
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2.10.4. Repayment of Participations
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36
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2.10.5. Interest for Account of Swing Line
Lender
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36
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2.10.6. Payments Directly to Swing Line
Lender
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37
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3. REPAYMENT OF THE REVOLVING CREDIT
LOANS
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37
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3.2. Mandatory Repayments of Revolving
Credit Loans
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37
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3.3. Optional Repayments of Revolving
Credit Loans and Swing Line Loans . (a)
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37
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4.1. Letter of Credit Commitments
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38
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4.1.1. Commitment to Issue Letters of
Credit . (a)
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38
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4.1.2. Procedures for the Issuance and
Amendment of Letters of Credit . (a)
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40
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4.1.3. Applicability of the ISP and Uniform
Customs
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41
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4.1.4. Reimbursement Obligations of
Lenders
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41
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4.1.5. Participations of Lenders
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41
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4.1.6. Auto-Extension Letters of
Credit
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41
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4.2. Reimbursement Obligation of the
Borrower
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42
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4.3. Letter of Credit Payments .
(a)
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43
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4.4. Obligations Absolute
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44
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4.6. Letter of Credit Fees
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46
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4.8. Conflict with Issuer Documents
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47
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5. CERTAIN GENERAL PROVISIONS
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47
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5.2. Funds for Payments
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47
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5.2.1. Payments to Administrative
Agent
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47
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5.2.2. No Offset, etc .
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47
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5.2.3. Non-U.S. Lenders
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48
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5.4. Inability to Determine Eurodollar
Rate
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49
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5.6. Additional Costs, etc .
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50
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5.10. Interest After Default
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52
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5.10.1. Overdue Amounts
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52
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5.10.2. Amounts Not Overdue
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53
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6. COLLATERAL SECURITY AND
GUARANTIES
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53
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6.1. Security of Borrower
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53
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6.2. Guaranties of Subsidiaries
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53
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6.3. Release of Collateral
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53
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7. REPRESENTATIONS AND WARRANTIES
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53
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7.1. Corporate Authority
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53
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7.1.1. Incorporation; Good Standing
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53
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7.2. Governmental or Third Party
Approvals
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54
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7.3. Title to Properties; Leases
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54
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7.4. Financial Statements and
Projections
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54
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7.4.2. Financial Statements
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55
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7.5. No Material Adverse Changes,
etc.
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55
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7.6. Franchises, Patents, Copyrights,
etc .
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55
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7.8. No Materially Adverse Contracts,
etc .
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56
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7.9. Compliance with Other Instruments,
Laws, etc .
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56
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7.11. No Event of Default
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56
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7.12. Holding Company and Investment
Company Acts
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56
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7.13. Absence of Financing Statements,
etc.
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56
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7.14. Perfection of Security
Interest
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57
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7.15. Certain Transactions
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57
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7.16. Employee Benefit Plans
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57
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7.16.2. Terminability of Welfare
Plans
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57
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7.16.3. Guaranteed Pension Plans
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57
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7.16.4. Multiemployer Plans
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58
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7.17.2. Regulations U and X
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58
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7.18. Environmental Compliance
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59
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7.19. Subsidiaries, etc .
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60
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7.22. Status of Obligations as Senior
Debt
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61
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7.25. Foreign Assets Control Regulations,
Etc .
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61
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8. AFFIRMATIVE COVENANTS
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61
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8.2. Maintenance of Office
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62
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8.3. Records and Accounts
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62
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8.4. Financial Statements, Certificates and
Information
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63
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8.5.2. Environmental Events
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66
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8.5.3. Notification of Claim against
Collateral
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66
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8.5.4. Notice of Litigation and
Judgments
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66
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8.5.5. Notice of ERISA Event
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67
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8.5.6. Notice of Change in Accounting or
Financial Reporting Practices
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67
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8.6. Legal Existence; Maintenance of
Properties
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67
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8.9. Inspection of Properties and Books,
etc.
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68
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8.9.2. Collateral Reports
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68
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8.9.4. Environmental Assessments
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69
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8.9.5. Communications with
Accountants
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69
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8.10. Compliance with Laws, Contracts,
Licenses, and Permits
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69
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8.11. Employee Benefit Plans
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70
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8.14. Additional Mortgaged Property
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70
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8.15. Interests in Intellectual
Property
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71
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8.17. Collateral Security of
Guarantors
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72
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8.18. Further Assurances
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72
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9. CERTAIN NEGATIVE COVENANTS
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72
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9.1. Restrictions on Indebtedness
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72
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9.2. Restrictions on Liens
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74
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9.2.1. Permitted Liens
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74
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9.2.2 Restrictions on Negative Pledges and
Upstream Limitations
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75
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9.3. Restrictions on Investments
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76
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9.4. Restricted Payments
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76
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9.5. Merger, Acquisitions and
Consolidation; Disposition of Assets
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77
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9.5.1. Mergers and Acquisitions
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77
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9.5.2. Disposition of Assets
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77
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9.6. Sale and Leaseback
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77
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9.7. Compliance with Environmental
Laws
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77
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9.8. Subordinated Debt; Master Lease
Agreements
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78
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9.9. Employee Benefit Plans
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79
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9.10. Business Activities
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79
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9.12. Transactions with Affiliates
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79
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9.15. Creation of Subsidiaries
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80
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10. FINANCIAL COVENANTS
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80
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10.1. Total Leverage Ratio
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80
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10.2. Fixed Charge Coverage Ratio
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81
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10.3. Interest Coverage
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81
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10.4. Senior Funded Debt to Consolidated
Adjusted Tangible Net Worth
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81
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11. CLOSING CONDITIONS
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81
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11.1. Loan Documents etc.
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81
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11.1.1. Loan Documents
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81
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11.1.2. Subordination Documents; Master
Lease Agreements
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81
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11.2. Certified Copies of Governing
Documents
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82
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11.3. Corporate or Other Action
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82
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11.4. Incumbency Certificate
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82
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11.5. Validity of Liens
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83
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11.6. Asset List; Perfection Certificates
and UCC Search Results
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83
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11.7. Certificates of Insurance
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83
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11.8. Borrowing Base Report
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83
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11.9. Financial Condition
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83
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11.10. Opinion of Counsel
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83
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11.11. Payment of Fees
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84
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11.13. Commercial Finance Exam, etc
.
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84
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12. CONDITIONS TO ALL BORROWINGS
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84
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12.1. Representations True; No Event of
Default
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84
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12.2. No Legal Impediment
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85
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12.3. Governmental Regulation
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85
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12.4. Proceedings and Documents
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85
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12.5. Borrowing Base Report
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85
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13. EVENTS OF DEFAULT; ACCELERATION;
ETC .
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85
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13.1. Events of Default and
Acceleration
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85
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13.2. Termination of Commitments
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89
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13.4. Distribution of Collateral
Proceeds
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90
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14. THE ADMINISTRATIVE AGENT
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91
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14.2. Employees and Administrative
Agents
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92
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14.4. No Representations
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93
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14.4.2. Non-Reliance on Administrative
Agent and Other Lenders
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94
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14.5.1. Payments to Administrative
Agent
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94
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14.5.2. Distribution by Administrative
Agent
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94
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14.5.3. Delinquent Lenders
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95
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14.5.4. Replacement of Lender
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95
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14.6. Holders of Revolving Credit
Notes
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96
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14.8. Administrative Agent as Lender,
etc.
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97
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14.10. Notification of Defaults and Events
of Default
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98
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14.11. Duties in the Case of
Enforcement
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98
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14.12. Administrative Agent May File Proofs
of Claim
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99
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14.13. Collateral and Guaranty
Matters
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99
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15. ASSIGNMENT AND PARTICIPATION
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100
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15.1. Conditions to Assignment
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100
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15.1.1. Successors and Assignment
Generally
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100
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15.1.2. Assignments by Lenders
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100
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15.1.4. Participations
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102
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15.1.5. Certain Pledges
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103
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15.1.6. Electronic Execution of
Assignments
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103
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15.1.7. Resignation as L/C Issuer and Swing
Line Lender after Assignment
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103
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16. PROVISIONS OF GENERAL
APPLICATIONS
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104
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16.3. Indemnification
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105
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16.4. Treatment of Certain Confidential
Information
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107
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16.4.1. Confidentiality
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107
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16.5. Survival of Covenants, Etc.
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108
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16.6.1. Notices Generally . E
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108
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16.6.2. Electronic Communications
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109
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16.6.4. Changes of Address
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110
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16.6.5. Reliance by Administrative Agent
and the Lenders
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110
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16.10. Entire Agreement, Etc .
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111
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16.11. Waiver of Jury Trial
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111
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16.12. Consents, Amendments, Waivers,
Etc .
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112
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16.14. USA PATRIOT Act Notice
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114
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Exhibits
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Exhibit A
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Form of Borrowing Base Report
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Exhibit B
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Form of Revolving Credit Note
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Exhibit C
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Form of Loan Request
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Exhibit D
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Form of Compliance Certificate
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Exhibit E
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Assignment and Assumption
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Exhibit F
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Swing Line Loan Notice
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Schedules
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Schedule 1
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Lenders and Commitments
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Schedule 1.1
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Existing Letters of Credit
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Schedule 7.3
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Title to Properties; Leases
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Schedule 7.15
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Certain Transactions
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Schedule 7.18
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Environmental Compliance
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Schedule 7.19(a)
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Subsidiaries
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Schedule 7.19(b)
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Joint Ventures
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Schedule 7.20
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Bank Accounts
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Schedule 9.1
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Existing Indebtedness
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Schedule 9.2
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Existing Liens
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Schedule 9.3
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Existing Investments
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Schedule 15.1.2
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Processing and Recordation Fees
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Schedule 16.6.1
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Certain Addresses for Notices
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REVOLVING CREDIT
AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of April 28,
2005, by and among CONTAINER APPLICATIONS INTERNATIONAL,
INC. (the “ Borrower ”), a Nevada
corporation having its principal place of business at 550 Kearny
Street, San Francisco, California 94108, the lending institutions
from time to time listed on Schedule 1 hereto
(the “ Lenders ”), BANK OF AMERICA, N.A.,
as administrative agent for itself and the other Lenders (in such
capacity, the “ Administrative Agent ”),
LASALLE BANK NATIONAL ASSOCIATION as syndication agent for
itself and the other Lenders (in such capacity, the “
Syndication Agent ”), and UNION BANK OF CALIFORNIA,
N.A. , as co-agent for itself and the other Lenders (in such
capacity, the “ Co-Agent ”), with BANC OF
AMERICA SECURITIES LLC acting as lead arranger and book
manager.
1.
DEFINITIONS AND RULES OF INTERPRETATION .
1.1. Definitions . The
following terms shall have the meanings set forth in this §1
or elsewhere in the provisions of this Credit Agreement referred to
below:
Accounts Receivable . All rights of the Borrower or any of
its Subsidiaries to payment for goods sold, leased or otherwise
marketed in the ordinary course of business and all rights of the
Borrower or any of its Subsidiaries to payment for services
rendered in the ordinary course of business and all sums of money
or other proceeds due thereon pursuant to transactions with account
debtors, except for that portion of the sum of money or other
proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in
accordance with GAAP.
Adjustment Date . The first day of the month immediately
following the month in which a Compliance Certificate is to be
delivered by the Borrower pursuant to §8.4(d).
Administrative Agent’s Office . The Administrative
Agent’s office located at 100 Federal Street, Boston,
Massachusetts 02110, or at such other location as the
Administrative Agent may designate from time to time.
Administrative Agent . Bank of America, N.A., acting as
administrative agent for the Lenders, and each other Person
appointed as the successor Administrative Agent in accordance with
§14.9.
Administrative Agent’s Special Counsel . Bingham
McCutchen LLP or such other counsel as may be approved by the
Administrative Agent.
Administrative Questionnaire . An Administrative
Questionnaire in a form supplied by the Administrative Agent.
Affiliate . With respect to any Person, another Person that
directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the
Person specified.
Agent Parties . See §16.6.3.
Applicable Margin . For each period commencing on an
Adjustment Date through the date immediately preceding the next
Adjustment Date (each a “ Rate Adjustment Period
”), the Applicable Margin shall be the applicable margin set
forth below with respect to the Total Leverage Ratio, as determined
for the Reference Period of the Borrower and its Subsidiaries
ending on the fiscal quarter ended immediately prior to the
applicable Rate Adjustment Period.
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Level
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Total
Leverage
Ratio
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Base
Rate
Loans
|
Eurodollar
Rate Loans
|
Letter of
Credit
Fees
|
Commitment
Fee
|
|
I
|
Greater than or
equal to 3.00:1.00
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0.50%
|
2.25%
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2.25%
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0.450%
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II
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Less than
3.00:1.00 but
greater than or
equal to 2.50:1.00
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0.25%
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2.00%
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2.00%
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0.400%
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III
|
Less than
2.50:1.00 but
greater than or
equal to 2.00:1.00
|
0.00%
|
1.75%
|
1.75%
|
0.350%
|
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IV
|
Less than 2.00:1.00
|
0.00%
|
1.50%
|
1.50%
|
0.300%
|
Notwithstanding the foregoing, (a) for the Revolving Credit Loans
outstanding and the Letter of Credit Fees and the Commitment Fee
payable during the period commencing on the Closing Date through
the date immediately preceding the first Adjustment Date to occur
after the second fiscal quarter following the Closing Date, the
Applicable Margin shall be no lower than the Applicable Margin set
forth in Level III above, and (b) if the Borrower fails to deliver
any Compliance Certificate pursuant to §8.4(d) hereof, then
for the period commencing on the next Adjustment Date to occur
subsequent to such failure through the date immediately following
the date on which such Compliance Certificate is delivered, the
Applicable Margin shall be the highest Applicable Margin set forth
above.
Applicable Pension Legislation . At any time, any pension or
retirement benefits legislation (be it national, federal,
provincial, territorial or otherwise) then applicable to the
Borrower or any of its Subsidiaries.
Approved Fund . Any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
Arranger . Banc of America Securities LLC, in its capacity
as lead arranger and book manager.
Assignee Group . Two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by
the same investment advisor.
Assignment and Assumption . An assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by §15.1.1, and
accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative
Agent.
Auto-Extension Letter of Credit . See §4.1.6.
Balance Sheet Date . December 31, 2004.
Bank of America . Bank of America, N.A., in its individual
capacity.
Base Rate . For any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b)
the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime
rate”. The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of
America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day
specified in the public announcement of such change.
Base Rate Loans . Revolving Credit Loans bearing interest
calculated by reference to the Base Rate.
Borrower . As defined in the preamble hereto.
Borrowing Base . At the relevant time of reference thereto,
an amount determined by the Administrative Agent by reference to
the most recent Borrowing Base Report delivered to the Lenders
pursuant to §8.4(f) which is equal to the sum of:
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(a) 80.00% of the Net
Book Value of Eligible Containers; plus
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(b) 75.00% of Eligible
Container Receivables, provided that the amount included in
the Borrowing Base pursuant to this clause (b) shall not exceed
$20,000,000; plus
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(c) 85.00% of the Net
Present Value of Direct Finance Lease Receivables (other than
Direct Finance Lease Receivables arising from Eligible Containers
which are included in clause (a) of this definition); plus
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(d) 100.00% of the amount
of Borrowing Base Cash Collateral.
|
Borrowing Base Cash Collateral . As of any date of
determination, all cash sums on deposit with the Administrative
Agent in Account #9429168958 and pledged to secure the Obligations
pursuant to the Cash Collateral Pledge Agreement.
Borrowing Base Report . A Borrowing Base Report signed by
the chief financial officer of the Borrower and in substantially
the form of Exhibit A hereto.
Business Day . Any day on which banking institutions in
Boston, Massachusetts and San Francisco, California, are open for
the transaction of banking business and, in the case of Eurodollar
Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets . Fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such
as patents, copyrights, trademarks, franchises and good will);
provided that Capital Assets shall not include any item
customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with
GAAP.
Capital Expenditures . Amounts paid or Indebtedness incurred
by the Borrower or any of its Subsidiaries in connection with (i)
the purchase or lease by the Borrower or any of its Subsidiaries of
Capital Assets that would be required to be capitalized and shown
on the balance sheet of such Person in accordance with GAAP or (ii)
the lease of any assets by the Borrower or any of its Subsidiaries
as lessee under any Synthetic Lease to the extent that such assets
would have been Capital Assets had the Synthetic Lease been treated
for accounting purposes as a Capitalized Lease.
Capitalized Leases . Leases under which the Borrower or any
of its Subsidiaries is the lessee or obligor, the discounted future
rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
Capital Stock . Any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
Cash Collateral . See §4.7.
Cash Collateral Pledge Agreement . That
certain Borrowing Base Cash Collateral Pledge Agreement, dated as
of the Closing Date, between the Borrower and the Administrative
Agent, in form and substance satisfactory to the Lenders and the
Administrative Agent.
CERCLA . See §7.18(a).
Change of Control . Any of (i) Interpool and its
wholly-owned subsidiaries and Mr. Hiromitsu Ogawa, members of his
immediate family and trusts for the benefit of the same shall, at
any time, cease to own, collectively, at least sixty-six and
two-thirds percent (66 2/3 %) of the issued and
outstanding Voting Stock of the Borrower of every class (on a
fully-diluted basis), or (ii) Interpool and its wholly-owned
subsidiaries shall, at any time, cease to own at least thirty-three
and one-third percent (33 1/3 %) of the issued and
outstanding Voting Stock of the Borrower of every class (on a
fully-diluted basis), or (iii) Mr. Hiromitsu Ogawa, members of his
immediate family and trusts for the benefit of the same shall, at
any time, cease to own at least thirty-three and one-third percent
(33 1/3 %) of the issued and outstanding Voting Stock of
the Borrower of every class (on a fully-diluted basis), or (iv) Mr.
Hiromitsu Ogawa shall cease to be actively engaged as the chief
executive officer of the Borrower and a new chief executive officer
of the Borrower reasonably acceptable to the Required Lenders shall
not have been appointed within sixty (60) days after such
cessation; provided , however , that the Required
Lenders hereby agree in advance that Masaaki Nishibori and Fred
Bauthier shall each be deemed to be reasonably acceptable to serve
as chief executive officer of Borrower in the event that Hiromitsu
Ogawa ceases to be actively engaged as chief executive officer.
Closing Date . The first date all the conditions precedent
in §11 are satisfied or waived and any Revolving Credit Loans
are to be made or any Letters of Credit are to be issued
hereunder.
Closing Interpool Repayment . The repayment of the Interpool
Subordinated Debt on the Closing Date in an amount not to exceed
$15,200,000.
Co-Agent . See Introductory Paragraph.
Code . The Internal Revenue Code of 1986.
Collateral . All of the property, rights and interests of
the Borrower and each of the Guarantors that are or are intended to
be subject to the Liens created by the Security Documents.
Commitment . With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of
such Lender’s commitment to make Revolving Credit Loans to,
to participate in the issuance, extension and renewal of Letters of
Credit for the account of, and to purchase participations in Swing
Line Loans made to, the Borrower, as the same may be increased
pursuant to §15.9 or reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof,
zero.
Commitment Fee . See §2.2.
Commitment Percentage . With respect to each Lender, the
percentage set forth on Schedule 1 hereto as such
Lender's percentage of the aggregate Commitments of all of the
Lenders.
Compliance Certificate . See §8.4(d).
Consolidated or consolidated . With reference to any term
defined herein, shall mean that term as applied to the accounts of
the Borrower and its Subsidiaries, consolidated in accordance with
GAAP.
Consolidated Adjusted Tangible Net Worth . At any time, the
Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries at such time, plus the outstanding amount of
Subordinated Debt of the Borrower and its Subsidiaries at such
time.
Consolidated EBITDA . With respect to any fiscal period, an
amount equal to the sum of (a) Consolidated Net Income (or Deficit)
of the Borrower and its Subsidiaries for such fiscal period,
plus (b) in each case to the extent deducted in the
calculation of such Person’s Consolidated Net Income and
without duplication, (i) depreciation and amortization for such
period, plus (ii) income tax expense for such period,
plus (iii) Consolidated Total Interest Expense paid or
accrued during such period, plus (iv) other noncash charges
for such period, plus (v) principal payments received by the
Borrower or any of its Subsidiaries during such period with respect
to Direct Finance Leases, all as determined in accordance with
GAAP.
Consolidated EBITDAR . With respect to any fiscal period of
the Borrower and its Subsidiaries, an amount equal to the sum of
(a) Consolidated EBITDA for such fiscal period plus (b)
consolidated rental expense for such fiscal period as determined in
accordance with GAAP.
Consolidated Funded Debt . At any time of determination,
with respect to the Borrower and its Subsidiaries, the sum, without
duplication, of (a) the aggregate amount of Indebtedness (including
Subordinated Debt) of the Borrower and its Subsidiaries, on a
consolidated basis, relating to (i) the borrowing of money or the
obtaining of credit, including the issuance of notes or bonds, (ii)
the deferred purchase price of assets (other than trade payables
incurred in the ordinary course of business), (iii) Capitalized
Leases, (iv) Rental Obligations, and (v) the maximum drawing amount
of all letters of credit outstanding plus (b) Indebtedness
of the type referred to in clause (a) of another Person guaranteed
by the Borrower or any of its Subsidiaries .
Consolidated Net Income (or Deficit) . The consolidated net
income (or deficit) of the Borrower and its Subsidiaries, after
deduction of all expenses, taxes, and other proper charges,
determined in accordance with GAAP, after eliminating therefrom all
extraordinary items of income or loss.
Consolidated Operating Cash Flow . With respect to any
fiscal period of the Borrower and its Subsidiaries, an amount equal
to (i) Consolidated EBITDAR for such fiscal period minus
(ii) cash income tax expense for such period, as determined in
accordance with GAAP.
Consolidated Tangible Net Worth . The excess of Consolidated
Total Assets over Consolidated Total Liabilities (excluding Rental
Obligations), and less the sum of:
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(a) the total book value
of all assets of the Borrower and its Subsidiaries properly
classified as intangible assets under GAAP, including such items as
good will, the purchase price of acquired assets in excess of the
fair market value thereof (for purposes of this definition, the
purchase price of new Containers acquired in arm’s length
purchases from third parties shall be deemed to equal the fair
market value thereof), trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with
respect to the foregoing; plus
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(b) all amounts
representing any write-up in the book value of any assets of the
Borrower or its Subsidiaries resulting from a revaluation thereof
subsequent to the Balance Sheet Date , excluding adjustments
to translate foreign assets and liabilities for changes in foreign
exchange rates made in accordance with Financial Accounting
Standards Board Statement No. 52; plus
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(c) to the extent
otherwise includable in the computation of Consolidated Tangible
Net Worth, any subscriptions receivable.
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Consolidated Total Assets . All assets of the Borrower and
its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
Consolidated Total Debt Service . With respect to the
Borrower and its Subsidiaries and for any Reference Period, the
sum, without duplication, of (a) any and all repayments or
prepayments of principal (excluding the Closing Interpool
Repayment) during such period in respect of Indebtedness that
becomes due and payable or that are to become due and payable
during such period pursuant to any agreement or instrument to which
the Borrower or any of its Subsidiaries is a party relating to (i)
the borrowing of money or the obtaining of credit, including the
issuance of notes or bonds, (ii) the deferred purchase price of
assets (other than trade payables incurred in the ordinary course
of business), (iii) in respect of any Synthetic Leases or any
Capitalized Leases, (iv) in respect of any reimbursement
obligations in respect of letters of credit due and payable during
such period, and (v) Indebtedness of the type referred to above of
another Person guaranteed by the Borrower or any of its
Subsidiaries, plus (b) Consolidated Total Interest Expense
paid or payable in cash during such Reference Period, plus
(c) one tenth (1/10) of the average daily outstanding amount of the
Revolving Credit Loans during such Reference Period, plus
(d) consolidated rental expense for such period as determined in
accordance with GAAP. Demand obligations shall be deemed to be due
and payable during any fiscal period during which such obligations
are outstanding.
Consolidated Total Interest Expense . For any period, the
aggregate amount of interest required to be paid or accrued by the
Borrower and its Subsidiaries during such period on all
Indebtedness of the Borrower and its Subsidiaries outstanding
during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized,
including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease, and including commitment
fees, agency fees, facility fees, balance deficiency fees and
similar fees or expenses in connection with the borrowing of
money.
Consolidated Total Liabilities . All liabilities of the
Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP and classified as such on the consolidated
balance sheet of the Borrower and its Subsidiaries and all other
Indebtedness of the Borrower and its Subsidiaries (including
Subordinated Debt), whether or not so classified.
Containers . The marine and intermodal cargo containers
either owned or leased by the Borrower and employed by the Borrower
in the conduct of its business, including, without limitation,
refrigerated, dry van, tank, open top and flat rack containers and
refrigeration units and generator sets associated therewith, but
excluding any chassis for such containers.
Control . 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.
Conversion Request . A notice given by the Borrower to the
Administrative Agent of the Borrower’s election to convert or
continue a Loan in accordance with §2.7.
Credit Agreement or Agreement . This Revolving Credit
Agreement, including the Schedules and Exhibits hereto as the same
may be amended, restated, supplemented or otherwise modified and in
effect from time to time.
Default . See
§13.1.
Delinquent Lender . See §14.5.3.
Direct Finance Lease Receivables . All rights of the
Borrower to payment in respect of Direct Finance Leases that are
not in default and all sums of money or other proceeds due the
Borrower pursuant to such Direct Finance Leases, except for that
portion of the sum of money or other proceeds due thereon that
relate to sales, use or property taxes in conjunction with such
transactions, recorded on the Borrower’s books of account in
accordance with generally accepted accounting principles. The
Administrative Agent shall hold a valid and perfected first
priority security interest in any Direct Finance Lease Receivables
included in the Borrowing Base.
Direct Finance Lease Rate . With respect to any Direct
Finance Lease, the interest rate applicable to such Direct Finance
Lease.
Direct Finance Leases . Leases pursuant to which the
Borrower leases Containers to a lessee and (a) the terms of such
lease provide that title to such Containers will pass to such
lessee at the end of the lease term automatically or at the option
of the lessee for no additional consideration or for consideration
so nominal that the lessee would be economically compelled to
exercise such option and (b) the interest component of the proceeds
of such lease are booked on the Borrower’s financial
statements as “Income from Direct Finance Leases.”
Distribution . (a) The declaration or payment of any
dividend on or in respect of any shares of any class of Capital
Stock of the Borrower, other than dividends payable solely in
shares of common stock of the Borrower; (b) the purchase,
redemption, defeasance, retirement or other acquisition of any
shares of any class of Capital Stock of the Borrower, directly or
indirectly through a Subsidiary of the Borrower or otherwise
(including the setting apart of assets for a sinking or other
analogous fund to be used for such purpose); (c) the return of
capital by the Borrower to its shareholders as such; or (d) any
other distribution on or in respect of any shares of any class of
Capital Stock of the Borrower.
Dollars or $ . Dollars in lawful currency of the
United States of America.
Domestic Lending Office . Initially, the office of each
Lender designated as such in Schedule 1
hereto; thereafter, such other office of such Lender, if any,
located within the United States that will be making or maintaining
Base Rate Loans.
Drawdown Date . The date on which any Revolving Credit Loan
or Swing Line Loan is made or is to be made, and the date on which
any Revolving Credit Loan is converted or continued in accordance
with §2.7.
Eligible Assignee . (a) A Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than
a natural person) approved by (i) the Administrative Agent, the L/C
Issuer and the Swing Line Lender, and (ii) unless an Event of
Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries or any competitor of
the Borrower (provided , however , that no financial
institution or Approved Fund shall be deemed to be a competitor of
the Borrower).
Eligible Containers . Containers owned by the Borrower which
(a) are subject to a first priority fully perfected security
interest in favor of the Administrative Agent for the benefit of
the Lenders in all jurisdictions within the United States of
America where filing financing statements in accordance with the
Uniform Commercial Code is necessary to perfect the Lenders’
security interest in such Containers, (b) are subject to no other
Liens except Permitted Liens that (i) secure Subordinated Debt and
are fully subordinated to the Lenders’ security interest in
such Containers pursuant to the terms of the Subordination and
Intercreditor Agreement or (ii) are permitted pursuant to
§§9.2.1(v) and (xi), (c) are in a serviceable condition
in the normal course of business, (d) have a Net Book Value greater
than zero, (e) have not suffered an Event of Loss and (f) are not
the subject of a finance or trade credit arrangement between the
Borrower as obligor and a third party obligee but are owned by the
Borrower outright.
Eligible Container Receivables . The aggregate of the unpaid
portions of Accounts Receivable generated in connection with sales
by the Borrower of Containers permitted by §9.5.2 (net of any
credits, rebates, offsets, holdbacks or other adjustments or
commissions payable to third parties that are adjustments to such
Accounts Receivable): (a) that the Borrower reasonably and in good
faith determines to be collectible; (b) that are with account
debtors or other obligors that (i) are not Affiliates of the
Borrower, unless such Affiliate is Interpool, (ii) purchased the
Containers giving rise to the relevant Account Receivable in an
arm’s length transaction, (iii) are not insolvent or involved
in any case or proceeding, whether voluntary or involuntary, under
any bankruptcy, reorganization, arrangement, insolvency, adjustment
of debt, dissolution, liquidation or similar law of any
jurisdiction and (iv) are, in the Administrative Agent’s
reasonable judgment, creditworthy; (c) that are in payment of
obligations that have been fully performed, do not consist of
progress billings or bill and hold invoices and are not subject to
dispute or any other similar claims that would reduce the cash
amount payable therefor; (d) that are not subject to any pledge,
restriction, security interest or other lien or encumbrance other
than Permitted Liens; (e) in which the Administrative Agent has a
valid and perfected first priority security interest; (f) that are
not outstanding for more than sixty (60) days past the earlier to
occur of (i) the due date listed on the respective original
invoices therefor and (ii) the date of shipment thereof; (g) that
are not due from any single account debtor or other obligor if more
than fifteen percent (15%) of the aggregate amount of all Accounts
Receivable owing from such account debtor or other obligor would
otherwise not be Eligible Container Receivables; (h) that are
payable in Dollars (or such other currency as the Administrative
Agent may agree in its sole discretion); (i) that are not secured
by a letter of credit unless the Administrative Agent has a prior
security interest in such letter of credit perfected by control;
(j) that are in payment of obligations under agreements that
contain terms requiring the relevant account debtor to return the
Container to the Borrower in the event that such Account Receivable
is not fully paid when due; and (k) are generated in connection
with sales of Containers owned by the Borrower outright that are
not the subject of a finance or trade credit arrangement between
the Borrower as obligor and a third party obligee.
Employee Benefit Plan . Any employee benefit plan within the
meaning of §3(3) of ERISA maintained or contributed to by the
Borrower or any ERISA Affiliate (other than Interpool), other than
a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws . See §7.18(a).
EPA . See §7.18(b).
ERISA . The Employee Retirement Income Security Act of 1974,
as amended.
ERISA Affiliate . Any Person which is treated as a single
employer with the Borrower under §414 of the Code.
ERISA Event . (a) An ERISA Reportable Event with respect to
a Guaranteed Pension Plan; (b) a withdrawal by the Borrower or any
ERISA Affiliate from a Guaranteed Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by
the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of an
Employee Benefit Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings by the
PBGC to terminate a Guaranteed Pension Plan or Multiemployer Plan;
(e) an event or condition which constitutes grounds under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Guaranteed Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
ERISA Reportable Event . A reportable event with respect to
a Guaranteed Pension Plan within the meaning of §4043 of ERISA
and the regulations promulgated thereunder as to which the
requirement of notice has not been waived.
Eurodollar Base Rate . See definition of Eurodollar
Rate.
Eurodollar Business Day . Any day on which commercial banks
are open for international business (including dealings in Dollar
deposits) in London or such other eurodollar interbank market as
may be selected by the Administrative Agent in its sole discretion
acting in good faith.
Eurodollar Lending Office . Initially, the office of each
Lender designated as such in Schedule 1
hereto; thereafter, such other office of such Lender, if any, that
shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate . For any Interest Period with respect to a
Eurodollar Rate Loan, a rate per annum determined by the
Administrative Agent pursuant to the following formula:
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Eurodollar Rate =
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Eurodollar Base Rate
1.00
- Eurodollar Reserve Percentage
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Where,
Eurodollar Base Rate . For such Interest Period, the rate
per annum equal to the British Bankers Association LIBOR Rate
(“ BBA LIBOR ”), as published by Reuters (or
other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time)
at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available
at such time for any reason, then the “Eurodollar Base
Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in
the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.
Eurodollar Reserve Percentage . For any day during any
Interest Period, the reserve percentage (expressed as a decimal,
carried out to five decimal places) in effect on such day, whether
or not applicable to any Lender, under regulations issued from time
to time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as “eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.
Eurodollar Rate Loans . Revolving Credit Loans bearing
interest calculated by reference to the Eurodollar Rate.
Event of Default . See §13.1.
Event of Loss . With respect to any Container, the
occurrence of any of the following events:
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(a)
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total loss or destruction thereof;
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(b)
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theft or disappearance thereof without
recovery within sixty (60) days after such theft or disappearance
becomes known to the Borrower;
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(c)
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damage rendering such Container unfit for
normal use and, in the judgment of the Borrower, beyond repair at
reasonable cost; and
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(d)
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any condemnation, seizure, forced sale or
other taking of title to or use of any such Container.
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Excess Availability . At any time of determination, (a) the
lesser of (i) the Total Commitment at such time or (ii) the
Borrowing Base at such time, minus (b) the sum of (i) the
outstanding amount of the Revolving Credit Loans at such time,
plus (ii) the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations at such time, plus (iii) the
outstanding amount of Swing Line Loans at such time.
Existing Credit Agreement . The Fifth Amended and Restated
Revolving Credit Agreement, dated as of June 27, 2002 by and among
the Borrower, the lenders party thereto and Fleet National Bank, as
administrative agent for the lenders.
Existing Letters of Credit . Those letters of credit issued
for the account of the Borrower under the Existing Credit Agreement
and set forth on Schedule 1.1 hereto.
Federal Funds Rate . For any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the
Administrative Agent.
Fee Letter . The fee letter, dated as of March 17, 2005,
among the Borrower, the Administrative Agent and the Arranger, as
the same may be amended, restated, supplemented or otherwise
modified and in effect from time to time.
Financial Affiliate . A Subsidiary of the bank holding
company controlling any Lender, which Subsidiary is engaging in any
of the activities permitted by §4(e) of the Bank Holding
Company Act of 1956 (12 U.S.C. §1843).
Fund . Any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in
the ordinary course of its business.
GAAP or generally accepted accounting principles . (a) When
used in §10, whether directly or indirectly through reference
to a capitalized term used therein, means (i) principles that are
consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting
practice of the Borrower reflected in its financial statements for
the year ended on the Balance Sheet Date, and (b) when used in
general, other than as provided above, means principles that are
(i) consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past
financial statements of the Borrower adopting the same principles,
provided that in each case referred to in this definition of
“ GAAP ” a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be
in a position to deliver an unqualified opinion (other than a
qualification regarding changes in GAAP) as to financial statements
in which such principles have been properly applied.
Governing Documents . With respect to any Person, its
certificate or articles of incorporation, its by-laws and all
shareholder agreements, voting trusts and similar arrangements
applicable to any of its Capital Stock.
Governmental Authority . Any foreign, federal, state,
regional, local, municipal or other government, or any department,
commission, board, bureau, agency, public authority or
instrumentality thereof, or any court or arbitrator.
Guaranteed Pension Plan . Any employee pension benefit plan
within the meaning of §3(2) of ERISA maintained or contributed
to by the Borrower or any ERISA Affiliate the benefits of which are
guaranteed on termination in full or in part by the PBGC pursuant
to Title IV of ERISA, other than a Multiemployer Plan.
Guarantors . Collectively, each of (a) Container
Applications International (U.K.) Limited, a United Kingdom
corporation, (b) Container Applications (Malaysia) SDN BHD, a
Malaysian corporation, (c) Container Applications International
Corporation, a Japanese corporation, (d) Sky Container Trading
Limited, a limited company formed under the laws of England and
Wales, (e) Sky Domestic Container Leasing Limited, a limited
company formed under the laws of England and Wales and (f) each
Subsidiary of the Borrower which is required to become a Guarantor
pursuant to §8.15 hereof. Each Guarantor shall be a party to
the Guaranty.
Guaranty . The Guaranty, dated or to be dated as of the
Closing Date, made by each Guarantor in favor of the Lenders and
the Administrative Agent pursuant to which such Guarantor
guarantees to the Lenders and the Administrative Agent the payment
and performance of the Obligations.
Hazardous Substances . See §7.18(b).
Honor Date. §4.2.
Indemnitee . See §16.3.
Identified Containers . See definition of "Nonrecourse
Loan".
Indebtedness . As to any Person and whether recourse is
secured by or is otherwise available against all or only a portion
of the assets of such Person and whether or not contingent, but
without duplication:
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(a) every obligation of
such Person for money borrowed,
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(b) every obligation of
such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses,
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(c) every reimbursement
obligation of such Person with respect to letters of credit,
bankers’ acceptances or similar facilities issued for the
account of such Person,
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(d) every obligation of
such Person issued or assumed as the deferred purchase price of
property or services (including securities repurchase agreements
but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which
are being contested in good faith),
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(e) every obligation of
such Person under any Capitalized Lease,
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(f) every obligation of
such Person under any Synthetic Lease,
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(g) all sales by such
Person of (i) accounts or general intangibles for money due or to
become due, (ii) chattel paper, instruments or documents creating
or evidencing a right to payment of money or (iii) other
receivables (collectively “ receivables ”),
whether pursuant to a purchase facility or otherwise, other than in
connection with the disposition of the business operations of such
Person relating thereto or a disposition of defaulted receivables
for collection and not as a financing arrangement, and together
with any obligation of such Person to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or other amounts
in connection therewith,
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(h) every obligation of
such Person (an “ equity related
purchase obligation ”) to purchase, redeem,
retire or otherwise acquire for value any shares of Capital Stock
issued by such Person or any rights measured by the value of such
Capital Stock,
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(i) every obligation of
such Person under any forward contract, futures contract, swap,
option or other financing agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements),
the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a “
derivative contract ”),
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(j) every obligation in
respect of Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the
extent that such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with
such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and
such terms are enforceable under applicable law,
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(k) every obligation,
contingent or otherwise, of such Person guaranteeing, or having the
economic effect of guarantying or otherwise acting as surety for,
any obligation of a type described in any of clauses (a) through
(j) (the “ primary obligation ”) of another
Person (the “ primary obligor ”), in any manner,
whether directly or indirectly, and including, without limitation,
any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase of) any security for the payment of
such primary obligation, (ii) to purchase property, securities or
services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or
other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such primary
obligation, and
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(l) all Rental
Obligations of such Person.
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The
“ amount ” or “ principal amount
” of any Indebtedness at any time of determination
represented by (i) any Indebtedness, issued at a price that is less
than the principal amount at maturity thereof, shall be the amount
of the liability in respect thereof determined in accordance with
GAAP, (ii) any Capitalized Lease shall be the principal component
of the aggregate of the rental obligation under such Capitalized
Lease payable over the term thereof that is not subject to
termination by the lessee, (iii) any sale of receivables shall be
the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrower or any of its wholly-owned
Subsidiaries) thereof, excluding amounts representative of yield or
interest earned on such investment, (iv) any Synthetic Lease shall
be the stipulated loss value, termination value or other equivalent
amount, (v) any derivative contract shall be the maximum amount of
any termination or loss payment required to be paid by such Person
if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early
termination event thereunder, whether or not such event of default
or early termination event has in fact occurred, (vi) any equity
related purchase obligation shall be the maximum fixed redemption
or purchase price thereof inclusive of any accrued and unpaid
dividends to be comprised in such redemption or purchase price, and
(vii) any guaranty or other contingent liability referred to in
clause (k) shall be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guaranty
or other contingent obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
Interest Payment Date . (a) As to any Base Rate Loan
(including any Swing Line Loan), the last Business Day of the
calendar quarter with respect to interest accrued during such
calendar quarter, including, without limitation, the calendar
quarter which includes the Drawdown Date of such Base Rate Loan;
and (b) as to any Eurodollar Rate Loan in respect of which the
Interest Period is (i) 3 months or less, the last Business Day of
such Interest Period and (ii) more than 3 months, the date that is
3 months from the first day of such Interest Period and, in
addition, the last Business Day of such Interest Period.
Interest Period . With respect to each Revolving Credit
Loan, (a) initially, the period commencing on the Drawdown Date of
such Loan and ending on the last day of one of the periods set
forth below, as selected by the Borrower in a Loan Request or as
otherwise required by the terms of this Credit Agreement (i) for
any Base Rate Loan, the last day of the calendar quarter; and (ii)
for any Eurodollar Rate Loan, 1, 2, 3 or 6 months; and (b)
thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Revolving Credit Loan
and ending on the last day of one of the periods set forth above,
as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
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(A) if any Interest
Period with respect to a Eurodollar Rate Loan would otherwise end
on a day that is not a Eurodollar Business Day, that Interest
Period shall be extended to the next succeeding Eurodollar Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Eurodollar
Business Day;
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(B) if any Interest
Period with respect to a Base Rate Loan would end on a day that is
not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
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(C) if the Borrower shall
fail to give notice as provided in §2.7, the Borrower shall be
deemed to have requested a conversion of the affected Eurodollar
Rate Loan to a Base Rate Loan and the continuance of all Base Rate
Loans as Base Rate Loans on the last day of the then current
Interest Period with respect thereto;
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(D) any Interest Period
relating to any Eurodollar Rate Loan that begins on the last
Eurodollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Eurodollar
Business Day of a calendar month; and
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(E) any Interest Period
that would otherwise extend beyond the Revolving Credit Loan
Maturity Date shall end on the Revolving Credit Loan Maturity
Date.
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Interest Rate Protection Agreement . Any agreement entered
into between the Borrower and any of the Lenders providing for an
interest rate swap, cap, collar, or other hedging mechanism with
respect to interest payable on Indebtedness.
Interpool . Interpool, Inc., a Delaware corporation.
Interpool Subordinated Debt . The Indebtedness of the
Borrower to Interpool in the original principal amount of
$33,650,000, issued at an interest rate per annum of
10½%, and evidenced by the Subordinated Note Purchase
Agreement and the promissory notes issued pursuant thereto, which
has been subordinated to the Obligations pursuant to the terms of
the Subordination and Intercreditor Agreement.
Investments . All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock
or Indebtedness of, or for loans, advances, capital contributions
or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations
of, any Person. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less
than the principal amount of the obligations guaranteed and still
outstanding; (b) there shall be included as an Investment all
interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (c) there shall
be deducted in respect of each such Investment any amount received
as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating
distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the
aggregate amount of Investments any decrease in the value
thereof.
Issuer Documents . With respect to any Letter of Credit, the
Letter of Credit Application, and any other document, agreement and
instrument entered into by the L/C Issuer and the Borrower or in
favor the L/C Issuer and relating to any such Letter of Credit.
L/C Advance . With respect to each Lender, such
Lender’s funding of its participation in any L/C Borrowing in
accordance with its Commitment Percentage.
L/C Borrowing . An extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on
the date when made or refinanced as a Revolving Credit Loan.
L/C Issuer . (i) Bank of America in its capacity as issuer
of Letters of Credit hereunder, or any successor issuer of Letters
of Credit hereunder and (ii) with respect to Existing Letters of
Credit, Fleet National Bank in its capacity as issuer of the
Existing Letters of Credit.
Lease Collateral . See definition of "Nonrecourse Loan".
Lender Affiliate . With respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, limited liability company, trust or legal entity) that
is engaged in making, purchasing, holding or otherwise investing in
bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by such Lender or an
Affiliate of such Lender.
Lenders . Bank of America and the other lending institutions
listed on Schedule 1 hereto and any other
Person who becomes an assignee of any rights and obligations of a
Lender pursuant to §15, and, as the context requires, includes
the Swing Line Lender and the L/C Issuer.
Letter of Credit . See §4.1.1.
Letter of Credit Application . See §4.1.2.
Letter of Credit Expiration Date . The day that is seven
days prior to the Revolving Credit Loan Maturity Date then in
effect (or, if such day is not a Business Day, the next preceding
Business Day).
Letter of Credit Fee . See §4.6.
Letter of Credit Participation . See §4.1.4.
Letter of Credit Sublimit . An amount equal to $15,000,000.
The Letter of Credit Sublimit is part of, and not in addition to,
the Total Commitment.
Lien . Any mortgage, deed of trust, security interest,
pledge, hypothecation, assignment, attachment, deposit arrangement,
encumbrance, lien (statutory, judgment or otherwise), or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement, any Capitalized Lease, any Synthetic Lease,
any financing lease involving substantially the same economic
effect as any of the foregoing and the filing of any financing
statement under the Uniform Commercial Code or comparable law of
any jurisdiction).
Loan Documents . This Credit Agreement, the Revolving Credit
Notes, the Letter of Credit Applications, the Letters of Credit
, each Issuer Document, the Subordination and Intercreditor
Agreement, the Guaranty, the Fee Letter and the Security
Documents.
Loan Request . See §2.6.
Master Lease Agreements . Collectively, (i) that certain
Amended and Restated Purchase and Master Lease Agreement
(CAI-SBLF), dated as of April 30, 1998, between Sumitomo Bank of
New York Trust Company, as owner trustee (the “Owner
Trustee”) and the Borrower and (ii) that certain Amended and
Restated Purchase and Master Lease Agreement (CAI-SBCM), dated as
of April 30, 1998, between the Owner Trustee and the Borrower, in
each case, as amended from time to time in accordance with
§9.8 hereof.
Material Adverse Effect . With respect to any event or
occurrence of whatever nature (including any adverse determination
in any litigation, arbitration or governmental investigation or
proceeding):
(a)
a material adverse effect on the business, properties, prospects,
condition (financial or otherwise), assets, operations or income of
the Borrower, individually or the Borrower and its Subsidiaries,
taken as a whole;
(b)
an adverse effect on the ability of the Borrower or any of its
Subsidiaries, individually and/or taken as a whole, to perform any
of their respective Obligations under any of the Loan Documents to
which it is a party; or
(c)
any impairment of the validity, binding effect or enforceability of
this Credit Agreement or any of the other Loan Documents, any
impairment of the rights, remedies or benefits available to the
Administrative Agent or any Lender under any Loan Document or any
impairment of the attachment, perfection or priority of any Lien of
the Administrative Agent under the Security Documents.
Maximum Drawing Amount . The maximum aggregate amount that
the beneficiaries may at any time draw under outstanding Letters of
Credit, as such aggregate amount may be reduced or increased from
time to time pursuant to the terms of the Letters of Credit.
Moody’s . Moody’s Investors Services, Inc.
Multiemployer Plan . Any multiemployer plan within the
meaning of §3(37) of ERISA maintained or contributed to by the
Borrower or any ERISA Affiliate.
Net Book Value . With respect to any Containers owned by the
Borrower which are standard dry cargo Containers and which were
acquired on or after July 1, 2001, the Original Cost to the
Borrower of such Containers adjusted to reflect depreciation over
twelve and a half years on a straight line basis, to residuals of
$645 for a 20-foot standard dry cargo Container, $795 for a 40-foot
standard dry cargo Container and $805 for a 40-foot standard
“high-cube” dry cargo Container. With respect to any
Containers owned by the Borrower which are non-standard Containers,
the Original Cost to the Borrower of such Containers adjusted to
reflect depreciation over fifteen years on a straight line basis to
a residual of 15% of the Original Cost of such Containers. With
respect to any Containers owned by the Borrower which are standard
dry cargo Containers and which were acquired on or before June 30,
2001, the Original Cost to the Borrower of such Containers adjusted
to reflect depreciation using the following depreciation method:
from the date of purchase until June 30, 2001, the Original Cost to
the Borrower of such Containers adjusted to reflect depreciation on
a straight line basis over fifteen years to a residual value of 15%
of the Original Cost of such Containers. From and after July 1,
2001, depreciation shall be calculated over the remainder of a
cumulative twelve and a half year life, on a straight line basis,
to residuals of $645 for a 20-foot standard dry cargo Container,
$795 for a 40-foot standard dry cargo Container and $805 for a
40-foot standard “high-cube” dry cargo Container.
Net Present Value . At the relevant time of reference
thereto, and as the context may require, the discounted present
value of Direct Finance Lease Receivables, discounted at the Direct
Finance Lease Rate per annum of the remaining term of the
applicable Direct Finance Lease.
Non-Extension Notice Date . See §4.1.6.
Nonrecourse Loan . A loan to the Borrower (a) which is
secured solely by (i) specifically identified Containers (the
“ Identified Containers ”), (ii) one or more
leases of such Identified Containers, including all rentals
thereunder (the “ Lease Collateral ”), and (iii)
all proceeds of such Identified Containers and Lease Collateral;
(b) which is payable solely from the related Identified Containers
and Lease Collateral, and as to which rentals under the related
Lease Collateral have been assigned to the applicable lender, and
are paid directly to such lender; and (c) with respect to which
payments of principal and interest are without recourse to the
Borrower or the Borrower’s property (other than the related
Identified Containers and Lease Collateral).
Obligations . All indebtedness, obligations and liabilities
of any of the Borrower and its Subsidiaries to any of the Lenders,
the Swing Line Lender, the L/C Issuer and the Administrative Agent,
individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated
or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or any Interest
Rate Protection Agreement or any Swap Contract entered into with
any Lender or the Administrative Agent or any of the Revolving
Credit Loans or Swing Line Loans made or Reimbursement Obligations
incurred or any of the Revolving Credit Notes, Letter of Credit
Applications, Letters of Credit or other instruments at any time
evidencing any of the foregoing.
Original Cost . With respect to any Container, the purchase
price therefor expressed in Dollars, as determined in accordance
with GAAP, consistently applied.
outstanding . With respect to the Revolving Credit Loans or
Swing Line Loans, the aggregate unpaid principal thereof as of any
date of determination.
Participant . See §15.1.4.
PBGC . The Pension Benefit Guaranty Corporation created by
§4002 of ERISA and any successor entity or entities having
similar responsibilities.
Perfection Certificate . The Perfection Certificate as
defined in the Security Agreement.
Permitted Liens . Liens permitted by §9.2.
Person . Any individual, corporation, limited liability
company, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental
Authority.
RCRA . See §7.18(a).
Real Estate . All real property at any time owned or leased
(as lessee or sublessee) by the Borrower or any of its
Subsidiaries.
Reference Period . As of any date of determination, the
period of four (4) consecutive fiscal quarters of the Borrower and
its Subsidiaries ending on such date, or if such date is not a
fiscal quarter end date, the period of four (4) consecutive fiscal
quarters most recently ended (in each case treated as a single
accounting period).
Register . See §15.3.
Reimbursement Obligation . The Borrower’s obligation
to reimburse the Administrative Agent and the Lenders on account of
any drawing under any Letter of Credit as provided in
§4.2.
Related Parties . With respect to any Person, such
Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such
Person’s Affiliates.
Rental Obligations . All present or future obligations of
the Borrower or any of its Subsidiaries under any rental agreements
or leases of real or personal property, other than (a) obligations
that can be terminated by the giving of notice without liability to
the Borrower or such Subsidiary in excess of the liability for rent
due as of the date on which such notice is given and under which no
penalty or premium is paid as a result of any such termination, (b)
obligations under rental agreements relating to equipment other
than Containers having an aggregate value of less than $1,000,000
for all such agreements, and (c) obligations in respect of any
Capitalized Leases. For purposes of this Credit Agreement, the
aggregate amount of Rental Obligations of the Borrower and its
Subsidiaries shall, as at any date of determination, be an amount
equal to the net present value, calculated at a discount rate of
nine percent (9.00%) per annum, of the future Rental Obligations of
such Person.
Required Lenders . As of any date, the Lenders holding more
than fifty percent (50%) of the outstanding principal amount of the
Revolving Credit Notes on such date; and if no such principal is
outstanding, the Lenders whose aggregate Commitments constitute
more than fifty percent (50%) of the Total Commitment.
Responsible Officer . The chief executive officer, president
or chief financial officer of the Borrower. Any document delivered
hereunder that is signed by a Responsible Officer of the Borrower
shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of
the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.
Restricted Payment . In relation to the Borrower and its
Subsidiaries, any (a) Distribution or (b) payment or prepayment by
the Borrower or its Subsidiaries to (i) the Borrower’s or any
Subsidiary’s shareholders (or other equity holders), in each
case, other than to the Borrower, or (ii) to any Affiliate of the
Borrower or any Subsidiary or any Affiliate of the Borrower’s
or such Subsidiary’s shareholders (or other equity holders),
in each case, other than to the Borrower.
Revolving Credit Loan Maturity Date . April 28, 2008.
Revolving Credit Loans . Revolving credit loans made or to
be made by the Lenders to the Borrower pursuant to §2.
Revolving Credit Note Record . The grid attached to a
Revolving Credit Note, or the continuation of such grid, or any
other similar record, including computer records, maintained by any
Lender with respect to any Revolving Credit Loan referred to in
such Revolving Credit Note.
Revolving Credit Notes . See §2.4.
SARA . See §7.18(a).
Security Agreement . The Security Agreement, dated or to be
dated as of the Closing Date, between the Borrower, each Guarantor
and the Administrative Agent, and in form and substance
satisfactory to the Lenders and the Administrative Agent, as the
same may be amended, restated, supplemented or otherwise modified
and in effect from time to time.
Security Documents . The Security Agreement, the Stock
Pledge Agreement, the Cash Collateral Pledge Agreement and all
other instruments and documents, including without limitation,
Uniform Commercial Code financing statements (or the equivalent
thereof in any applicable foreign jurisdiction), required to be
executed or delivered pursuant to (a) any Security Document or (b)
§§8.16, 8.17 or 8.18.
Senior Funded Debt . At any time of determination, with
respect to the Borrower and its Subsidiaries, the sum, without
duplication, of (a) the aggregate amount of Indebtedness (excluding
Subordinated Debt) of the Borrower and its Subsidiaries, on a
consolidated basis, relating to (i) the borrowing of money or the
obtaining of credit, including the issuance of notes or bonds, (ii)
the deferred purchase price of assets (other than trade payables
incurred in the ordinary course of business), (iii) Capitalized
Leases, (iv) Rental Obligations, and (v) the maximum drawing amount
of all letters of credit outstanding plus (b) Indebtedness
of the type referred to in clause (a) of another Person guaranteed
by the Borrower or any of its Subsidiaries .
S&P . Standard & Poor’s Ratings Group.
Solvent . With respect to any Person on a particular date,
that on such date (a) the fair value of the assets of such Person
is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present
fair saleable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c)
such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments
as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature, and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business
or a transaction, for which such Person’s property would
constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will
be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured
liability.
Staff Loan Program . A program administered by the Borrower
pursuant to which the Borrower makes loans to employees;
provided , that the aggregate principal amount of loans
outstanding at any time under such program shall not exceed
$1,500,000, and that no more than an aggregate of $100,000 of which
may be unsecured.
Stock Pledge Agreement . The Stock Pledge Agreement, dated
or to be dated as of the Closing Date, between the Borrower,
certain Guarantors and the Administrative Agent, and in form and
substance satisfactory to the Lenders and the Administrative Agent
as the same may be amended, restated, supplemented and otherwise
modified and in effect from time to time.
Subordinated Debt . The Interpool Subordinated Debt and
other Indebtedness of the Borrower or any of its Subsidiaries that
is expressly subordinated and made junior to the payment and
performance in full of the Obligations, and evidenced as such by
the Subordination and Intercreditor Agreement or by another written
instrument containing subordination provisions in form and
substance approved by the Administrative Agent and the Lenders in
writing.
Subordinated Note Purchase Agreement . That certain Note
Purchase Agreement, dated as of April 30, 1998, between the
Borrower and Interpool, as amended by that certain Amendment No. 1,
dated as of April 28, 2000, that certain Amendment No. 2, dated as
of March 15, 2002, that certain Amendment No. 3, dated as of June
27, 2002, that certain Amendment No. 4, dated as of February 25,
2003, and as the same may be further amended from time to time in
accordance with §9.8 hereof, together with all other
documents, instruments, and other agreements entered into in
connection therewith, each in the form delivered to the
Administrative Agent prior to the Closing Date.
Subordination and Intercreditor Agreement . That certain
Amended and Restated Subordination and Intercreditor Agreement,
dated as of June 27, 2002, among the Administrative Agent,
Interpool and the Borrower and in form and substance satisfactory
to the Lenders and the Administrative Agent, as amended by
Amendment No. 1 thereto, dated as of the date hereof, and as the
same may be amended, restated, supplemented and in effect from time
to time.
Subordination Documents . The Subordination and
Intercreditor Agreement, the Subordinated Note Purchase Agreement
and all other documents, instruments, and other agreements entered
into in connection therewith.
Subsidiary . Any corporation, association, trust, or other
business entity of which the designated parent shall at any time
own directly or indirectly through a Subsidiary or Subsidiaries at
least a majority (by number of votes) of the outstanding Voting
Stock.
Swap Contract . (a) Any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond
price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and (b) any and all
transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “ Master
Agreement ”), including any such obligations or
liabilities under any Master Agreement.
Swing Line . The revolving credit facility made available by
the Swing Line Lender pursuant to §2.10.
Swing Line Borrowing . A borrowing of a Swing Line Loan
pursuant to §2.10.
Swing Line Lender . Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line lender
hereunder.
Swing Line Loan . See §2.10.1.
Swing Line Loan Notice . A notice of a Swing Line Borrowing
pursuant to §2.10.2, which, if in writing, shall be
substantially in the form of Exhibit F .
Swing Line Sublimit . An amount equal to the lesser of (a)
$10,000,000 and (b) the Total Commitment. The Swing Line Sublimit
is part of, and not in addition to, the Total Commitment.
Syndication Agent . See Introductory Paragraph.
Synthetic Lease . Any lease of goods or other property,
whether real or personal, which is treated as an operating lease
under GAAP and as a loan or financing for U.S. income tax
purposes.
Total Commitment . The sum of the Commitments of the
Lenders, as in effect from time to time. The Total Commitment on
the Closing Date is $175,000,000.
Total Leverage Ratio . As at any date of determination, the
ratio of (a) Consolidated Funded Debt as at such date to (b)
Consolidated EBITDAR for the Reference Period most recently
ended.
Type . As to any Revolving Credit Loan, its nature as a Base
Rate Loan or a Eurodollar Rate Loan.
Unpaid Reimbursement Obligation . Any Reimbursement
Obligation for which the Borrower does not reimburse the
Administrative Agent and the Lenders on the date specified in, and
in accordance with, §4.2.
Voting Stock . Stock or similar interests, of any class or
classes (however designated), the holders of which are at the time
entitled, as such holders, to vote for the election of a majority
of the directors (or persons performing similar functions) of the
corporation, association, trust or other business entity involved,
whether or not the right so to vote exists by reason of the
happening of a contingency.
Rules of Interpretation .
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(a) A reference to any
document or agreement shall include such document or agreement as
amended, modified or supplemented from time to time in accordance
with its terms and the terms of this Credit Agreement.
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(b) The singular includes
the plural and the plural includes the singular.
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(c) A reference to any
law includes any amendment or modification to such law.
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(d) A reference to any
Person includes its permitted successors and permitted assigns.
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(e) Accounting terms not
otherwise defined herein have the meanings assigned to them by GAAP
applied on a consistent basis by the accounting entity to which
they refer.
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(f) The words
“include”, “includes” and
“including” are not limiting.
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(g) All terms not
specifically defined herein or by GAAP, which terms are defined in
the Uniform Commercial Code as in effect in the State of New York,
have the meanings assigned to them therein, with the term “
instrument ” being that defined under Article 9 of the
Uniform Commercial Code.
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(h) Reference to a
particular “§” refers to that section of this
Credit Agreement unless otherwise indicated.
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(i) The words
“herein”, “hereof”, “hereunder”
and words of like import shall refer to this Credit Agreement as a
whole and not to any particular section or subdivision of this
Credit Agreement.
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(j) Unless otherwise
expressly indicated, in the computation of periods of time from a
specified date to a later specified date, the word
“from” means “from and including,” the
words “to” and “until” each mean “to
but excluding,” and the word “through” means
“to and including.”
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(k) This Credit Agreement
and the other Loan Documents are the result of negotiation among,
and have been reviewed by counsel to, among others, the
Administrative Agent and the Borrower and are the product of
discussions and negotiations among all parties. Accordingly, this
Credit Agreement and the other Loan Documents are not intended to
be construed against the Administrative Agent or any of the Lenders
merely on account of the Administrative Agent’s or any
Lender’s involvement in the preparation of such
documents.
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(l) Unless otherwise
specified herein, the amount of a Letter of Credit at any time
shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided , however , that with
respect to any Letter of Credit that, by its terms or the terms of
any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of
such Letter of Credit shall be deemed to be the maximum stated
amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect
at such time. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the “International Standby Practices 1998”
(ISP) published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the
time of issuance), such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to
be drawn.
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2.
THE REVOLVING CREDIT FACILITY .
2.1. Commitment to Lend .
Subject to the terms and conditions set forth in this
Credit Agreement, each of the Lenders severally agrees to lend to
the Borrower and the Borrower may borrow, repay, and reborrow from
time to time from the Closing Date until the Revolving Credit Loan
Maturity Date upon notice by the Borrower to the Administrative
Agent given in accordance with §2.6, such sums as are
requested by the Borrower up to a maximum aggregate amount
outstanding (after giving effect to all amounts requested) at any
one time equal to such Lender’s Commitment minus such
Lender’s Commitment Percentage of (i) the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations plus
(ii) the outstanding amount of Swing Line Loans, provided
that the sum of the outstanding amount of the Revolving Credit
Loans (after giving effect to all amounts requested) plus
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
plus the outstanding amount of Swing Line Loans shall not at
any time exceed the lesser of (i) the Total Commitment at such time
and (ii) the Borrowing Base at such time. The Revolving Credit
Loans shall be made pro rata in accordance with each
Lender’s Commitment Percentage. Each request for a Revolving
Credit Loan hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in §11
and §12, in the case of the initial Revolving Credit Loans to
be made on the Closing Date, and §12, in the case of all other
Revolving Credit Loans, have been satisfied on the date of such
request.
2.2. Commitment Fee . The
Borrower agrees to pay to the Administrative Agent for the accounts
of the Lenders in accordance with their respective Commitment
Percentages a commitment fee (the “ Commitment
Fee ”) calculated at the rate per annum of the
Applicable Margin with respect to the Commitment Fee as in effect
from time to time on the actual daily amount during each calendar
quarter or portion thereof from the Closing Date to the Revolving
Credit Loan Maturity Date by which the Total Commitment
minus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the outstanding amount of
Revolving Credit Loans (excluding Swing Line Loans) during such
calendar quarter. The Commitment Fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter for such
calendar quarter commencing on the first such date following the
Closing Date, with a final payment on the Revolving Credit Loan
Maturity Date or any earlier date on which the Commitments shall
terminate.
2.3. Reduction of Total Commitment .
The Borrower shall have the right at any time and from
time to time upon five (5) Business Days prior written notice to
the Administrative Agent to reduce by $500,000 or an integral
multiple thereof or to terminate entirely the Total Commitment,
whereupon the Commitments of the Lenders shall be reduced
pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or,
as the case may be, terminated. Promptly after receiving any notice
of the Borrower delivered pursuant to this §2.3, the
Administrative Agent will notify the Lenders of the substance
thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Lenders the full amount of any
Commitment Fee then accrued on the amount of the reduction. No
reduction or termination of the Commitments may be reinstated. If,
after giving effect to any reduction of the Total Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the
amount of the Total Commitments, such Sublimit shall be
automatically reduced by the amount of such excess.
2.4. Evidence of Debt. (a)
The Revolving Credit Loans made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of
the Revolving Credit Loans made by the Lenders to the Borrower and
the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts
and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender
made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a
promissory note of the Borrower in substantially the form of
Exhibit B hereto (each a “
Revolving Credit Note ”), which shall evidence
such Lender’s Revolving Credit Loans in addition to such
accounts or records. Each Lender may attach schedules to its
Revolving Credit Note and endorse thereon the date, amount,
interest rate and maturity of such Lender’s Revolving Credit
Loans and payments with respect thereto.
(b) In addition to the
accounts and records referred to in subsection (a) above, each
Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between
the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.5. Interest on Revolving Credit Loans and Swing
Line Loans . Except as otherwise provided in
§5.10,
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(a) Each Revolving Credit
Loan which is a Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at the rate per
annum equal to the Base Rate plus the Applicable Margin with
respect to Base Rate Loans as in effect from time to time;
provided , however , in the event that the interest
rate per annum applicable to Base Rate Loans is less than the
Eurodollar Rate then applicable for an Interest Period of one month
plus the Applicable Margin with respect to Eurodollar Rate
Loans in effect at such time, each Revolving Credit Loan which is a
Base Rate Loan shall bear interest at the rate per annum equal to
the Eurodollar Rate then applicable for an Interest Period of one
month plus the Applicable Margin with respect to Eurodollar
Rate Loans in effect at such time.
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(b) Each Revolving Credit
Loan which is a Eurodollar Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the
last day of the Interest Period with respect thereto at the rate
per annum equal to the Eurodollar Rate determined for such Interest
Period plus the Applicable Margin with respect to Eurodollar
Rate Loans as in effect from time to time.
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(c) Each Swing Line Loan
shall bear interest from the applicable Drawdown Date thereof at
the rate per annum equal to the Base Rate plus the
Applicable Margin with respect to Base Rate Loans as in effect from
time to time; provided , however , in the event that
the interest rate per annum applicable to Swing Line Loans is less
than the Eurodollar Rate then applicable for an Interest Period of
one month plus the Applicable Margin with respect to
Eurodollar Rate Loans in effect at such time, each Swing Line Loan
shall bear interest at the rate per annum equal to the Eurodollar
Rate then applicable for an Interest Period of one month
plus the Applicable Margin with respect to Eurodollar Rate
Loans in effect at such time.
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The Borrower promises to pay interest on each Revolving Credit
Loan and each Swing Line Loan in arrears on each Interest Payment
Date with respect thereto.
2.6. Requests for Revolving Credit Loans
. The Borrower shall give to the Administrative
Agent written notice in the form of Exhibit C
hereto (or telephonic notice confirmed in a writing in the form of
Exhibit C hereto) of each Revolving Credit
Loan requested hereunder (a “ Loan Request ”) no
less than (a) two (2) Business Days prior to the proposed Drawdown
Date of any Base Rate Loan and (b) four (4) Eurodollar Business
Days prior to the proposed Drawdown Date of any Eurodollar Rate
Loan. Each such notice shall specify (i) the principal amount of
the Revolving Credit Loan requested, (ii) the proposed Drawdown
Date of such Revolving Credit Loan, (iii) the Interest Period for
such Revolving Credit Loan and (iv) the Type of such Revolving
Credit Loan. Promptly upon receipt of any such notice, the
Administrative Agent shall notify each of the Lenders thereof. Each
Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Revolving Credit Loan
requested from the Lenders on the proposed Drawdown Date. Each Loan
Request relating to a Base Rate Loan shall be in a minimum
aggregate amount of $500,000 and each Loan Request relating to a
Eurodollar Rate Loan shall be in a minimum aggregate amount of
$1,000,000.
2.7. Conversion Options .
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2.7.1. Conversion to Different Type of Revolving
Credit Loan . The Borrower may elect from time
to time to convert any outstanding Revolving Credit Loan to a
Revolving Credit Loan of another Type, provided that (a)
with respect to any such conversion of a Eurodollar Rate Loan to a
Base Rate Loan, the Borrower shall give the Administrative Agent at
least four (4) Business Days prior written notice of such election;
(b) with respect to any such conversion of a Base Rate Loan to a
Eurodollar Rate Loan, the Borrower shall give the Administrative
Agent at least five (5) Eurodollar Business Days prior written
notice of such election; (c) with respect to any such conversion of
a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall
only be made on the last day of the Interest Period with respect
thereto and (d) no Revolving Credit Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has
occurred and is continuing. On the date on which such conversion is
being made each Lender shall take such action as is necessary to
transfer its Commitment Percentage of such Revolving Credit Loans
to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. All or any part of outstanding Revolving Credit
Loans of any Type may be converted into a Revolving Credit Loan of
another Type as provided herein, provided that any partial
conversion shall be in an aggregate principal amount of at least
$500,000, in the case of conversion to Base Rate Loans, and
$1,000,000 in the case of conversion to Eurodollar Rate Loans. Each
Conversion Request relating to the conversion of a Revolving Credit
Loan to a Eurodollar Rate Loan shall be irrevocable by the
Borrower.
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2.7.2. Continuation of Type of Revolving Credit
Loan . Any Revolving Credit Loan of any Type
may be continued as a Revolving Credit Loan of the same Type upon
the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in
§2.7.1; provided that no Eurodollar Rate Loan may be
continued as such when any Default or Event of Default has occurred
and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent active upon
the Borrower’s account have actual knowledge. In the event
that the Borrower fails to provide any such notice with respect to
the continuation of any Eurodollar Rate Loan as such, then such
Eurodollar Rate Loan shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating
thereto. The Administrative Agent shall notify the Lenders promptly
when any such automatic conversion contemplated by this §2.7
is scheduled to occur.
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2.7.3. Eurodollar Rate Loans .
Any conversion to or from Eurodollar Rate Loans shall
be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be
less than $1,000,000. No more than five (5) Eurodollar Rate Loans
having different Interest Periods may be outstanding at any
time.
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2.8. Funds for Revolving Credit Loans
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2.8.1. Funding Procedures .
Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Revolving Credit Loans, each of the Lenders
will make available to the Administrative Agent, at the
Administrative Agent’s Office, in immediately available
funds, the amount of such Lender’s Commitment Percentage of
the amount of the requested Revolving Credit Loans. Upon receipt
from each Lender of such amount, and upon receipt of the documents
required by §§11 and 12 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made available to
the Administrative Agent by the Lenders.
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2.8.2. Advances by Administrative Agent .
(a) The Administrative Agent may, unless notified to
the contrary by any Lender prior to a Drawdown Date, assume that
such Lender has made available to the Administrative Agent on such
Drawdown Date the amount of such Lender’s Commitment
Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Administrative Agent may (but it shall not
be required to), 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 Revolving Credit
Loan 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
in immediately available funds 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 (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans.
If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Revolving Credit Loan
to the Administrative Agent, then the amount so paid shall
constitute such Lender’s share of the such Revolving Credit
Loan. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed
to make such payment to the Administrative Agent.
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(b) Unless the
Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to
the Lenders or the L/C Issuer, as the case may be, the amount due.
In such event, if the Borrower has not in fact made such payment,
then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed
to such Lender, in immediately available funds with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and
a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
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(c) A notice of the
Administrative Agent to any Lender or any Borrower with respect to
any amount owing under §§2.8.2(a) and (b) shall be
conclusive, absent manifest error.
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2.8.3. Obligations of Lenders Several .
The obligations of the Lenders hereunder to make
Revolving Credit Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments pursuant to §14.7
are several and not joint. The failure of any Lender to make any
Revolving Credit Loan, to fund any such participation or to make
any payment under §14.7 on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do
so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Revolving Credit Loans, to
purchase its participation or to make its payment under
§14.7.
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2.9. Change in Borrowing Base .
The Borrowing Base shall be determined by the
Administrative Agent upon receipt of each Loan Request and, in any
case, no less frequently than monthly (and at such other intervals
as may be specified pursuant to §8.4(f)) by reference to the
Borrowing Base Report most recently delivered to the Lenders and
the Administrative Agent pursuant to §8.4(h) and other
information obtained by, or provided to, the Administrative Agent.
The Administrative Agent shall give to the Borrower written notice
of any change in the Borrowing Base determined by the
Administrative Agent. Prior to the time any such notice becomes
effective, the Borrowing Base shall be computed as it would have
been computed in the absence of such notice.
2.10. Swing Line Loans .
2.10.1. The Swing Line .
Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of
the other Lenders set forth in this §2.10, to make loans (each
such loan, a “ Swing Line Loan ”) to the
Borrower from time to time on any Business Day from the Closing
Date until the Revolving Credit Loan Maturity Date in an aggregate
amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans of the Lender acting as the Swing Line Lender, when
aggregated with such Lender’s Commitment Percentage of the
outstanding amount of Revolving Credit Loans plus such
Lender’s Commitment Percentage of the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations, may exceed
the amount of such Lender’s Commitment; provided ,
however , that after giving effect to any Swing Line Loan,
(x) the sum of the outstanding amount of the Revolving Credit
Loans, plus the Maximum Drawing Amount and all Unpaid
Reimbursement, Obligations plus the outstanding amount of
Swing Line Loans shall not at any time exceed the lesser of (i) the
Total Commitment at such time and (ii) the Borrowing Base at such
time, and (y) the aggregate outstanding amount of the Revolving
Credit Loans of any Lender, plus such Lender’s
Commitment Percentage of the outstanding amount of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations,
plus such Lender’s Commitment Percentage of the
outstanding amount of all Swing Line Loans shall not exceed such
Lender’s Commitment, and provided , further ,
that the Borrower shall not use the proceeds of any Swing Line Loan
to refinance any outstanding Swing Line Loan. Within the foregoing
limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this §2.10, prepay under §3.3,
and reborrow under this §2.10. Each Swing Line Loan shall be a
Base Rate Loan. Immediately upon the making of a Swing Line Loan,
each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to
the product of such Lender’s Commitment Percentage
times the amount of such Swing Line Loan. The Borrower
hereby promises to repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Swing Line Loan
is made and (ii) the Revolving Credit Loan Maturity Date.
2.10.2. Borrowing Procedure .
Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and
the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer
of the Borrower. Promptly after receipt by the Swing Line Lender of
any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including
at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of §2.10.1, or (B)
that one or more of the applicable conditions specified in
§§11 and 12 is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later
than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to
the Borrower.
2.10.3. Refinancing of Swing Line Loans .
(a) The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Revolving Credit Loan which
is a Base Rate Loan in an amount equal to such Lender’s
Commitment Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Request for purposes hereof)
and in accordance with the requirements of §§2.1 and 2.6,
without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Total Commitments and the conditions set
forth in §12. The Swing Line Lender shall furnish the Borrower
with a copy of the applicable Loan Request promptly after
delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Commitment Percentage of the
amount specified in such Loan Request available to the
Administrative Agent in immediately available funds for the account
of the Swing Line Lender at the Administrative Agent’s Office
not later than 1:00 p.m. on the day specified in such Loan Request,
whereupon, subject to §2.10.3(b), each Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to
the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lender.
(b) If for any reason any
Swing Line Loan cannot be refinanced by such a Committed Borrowing
in accordance with §2.10.3(a), the request for Base Rate Loan
submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the
Lenders fund its risk participation in the relevant Swing Line Loan
and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to §2.10.3(a) shall
be deemed payment in respect of such participation.
(c) If any Lender fails
to make available to the Administrative Agent for the account of
the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this §2.10.3 by the
time specified in §2.10.3(a), the Swing Line Lender shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date
on which such payment is immediately available to the Swing Line
Lender at a rate per annum equal to the greater of the Federal
Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation. A
certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts
owing under this clause (c) shall be conclusive absent manifest
error.
(d) Each Lender’s
obligation to make Revolving Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this
§2.10.3 shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance
of a Default or Event of Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided , however , that each Lender’s
obligation to make Revolving Credit Loans pursuant to this
§2.10.3 is subject to the conditions set forth in §12. No
such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
2.10.4. Repayment of Participations .
(a) At any time after any Lender has purchased and
funded a risk participation in a Swing Line Loan, if the Swing Line
Lender receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Lender its Commitment
Percentage of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender’s risk participation was funded) in the same funds as
those received by the Swing Line Lender.
(b) If any payment
received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the
Swing Line Lender in connection with any bankruptcy or insolvency
proceeding or otherwise (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Commitment Percentage
thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
2.10.5. Interest for Account of Swing Line
Lender . The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Lender funds its Base Rate Loan or risk
participation pursuant to this §2.10 to refinance such
Lender’s Commitment Percentage of any Swing Line Loan,
interest in respect of such Commitment Percentage shall be solely
for the account of the Swing Line Lender.
2.10.6. Payments Directly to Swing Line
Lender . The Borrower shall make all payments
of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
3.
REPAYMENT OF THE REVOLVING CREDIT LOANS .
3.1. Maturity . The Borrower
promises to pay on the Revolving Credit Loan Maturity Date, and
there shall become absolutely due and payable on the Revolving
Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and
unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit
Loans . If at any time the sum of the
outstanding principal amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations and
the outstanding amount of Swing Line Loans exceeds the lesser of
(a) the Total Commitment at such time and (b) the Borrowing Base at
such time, then the Borrower shall immediately pay the amount of
such excess to the Administrative Agent for the respective accounts
of the Lenders for application: first , to any Unpaid
Reimbursement Obligations; second , to the Swing Line Loans;
third , to the Revolving Credit Loans; and fourth ,
to provide to the Administrative Agent Cash Collateral for
Reimbursement Obligations as contemplated by §4.2(b) and (c).
Each payment of any Unpaid Reimbursement Obligations or prepayment
of Revolving Credit Loans shall be allocated among the Lenders, in
proportion, as nearly as practicable, to each Reimbursement
Obligation or (as the case may be) the respective unpaid principal
amount of each Lender’s Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
3.3. Optional Repayments of Revolving Credit
Loans and Swing Line Loans . (a) The Borrower
shall have the right, at its election, to repay the outstanding
amount of the Revolving Credit Loans, as a whole or in part, at any
time without penalty or premium, provided that any full or
partial prepayment of the outstanding amount of any Eurodollar Rate
Loans pursuant to this §3.3 may be made only on the last day
of the Interest Period relating thereto unless breakage costs
incurred by the Lenders in connection therewith are paid by the
Borrower in accordance with §5.9. The Borrower shall give the
Administrative Agent, no later than 10:00 a.m., Boston time, at
least three (3) Business Days’ prior written notice of any
proposed prepayment pursuant to this §3.3 of Base Rate Loans,
and four (4) Eurodollar Business Days’ prior written notice
of any proposed prepayment pursuant to this §3.3 of Eurodollar
Rate Loans, in each case specifying the proposed date of prepayment
of Revolving Credit Loans and the principal amount to be prepaid.
Each such partial prepayment of the Revolving Credit Loans shall be
in a principal amount of at least $200,000, shall be accompanied by
the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of
instruction by the Borrower, first, to the principal of Base Rate
Loans and then to the principal of Eurodollar Rate Loans, at the
Administrative Agent’s option. Each partial prepayment shall
be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each
Lender’s Revolving Credit Note, with adjustments to the
extent practicable to equalize any prior repayments not exactly in
proportion.
(b) The Borrower may,
upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.
4.
LETTERS OF CREDIT .
4.1. Letter of Credit Commitments .
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4.1.1. Commitment to Issue Letters of Credit
. (a) Subject to the terms and conditions hereof,
upon the execution and delivery by the Borrower of a letter of
credit application on the L/C Issuer’s customary form (a
“ Letter of Credit Application ”), the L/C
Issuer on behalf of the Lenders and in reliance upon the agreement
of the Lenders set forth in this §4 and upon the
representations and warranties of the Borrower contained herein,
agrees, in its individual capacity, to issue, extend and renew for
the account of the Borrower one or more standby letters of credit
(individually, a “ Letter of Credit ”), in such
form as may be requested from time to time by the Borrower and
agreed to by the L/C Issuer; provided , however ,
that, after giving effect to such request, (i) the sum of the
aggregate Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not exceed the Letter of Credit Sublimit at any
one time and (ii) the sum of (A) the Maximum Drawing Amount of all
Letters of Credit, (B) all Unpaid Reimbursement Obligations, and
(C) the principal amount of all Revolving Credit Loans and Swing
Line Loans outstanding shall not exceed the lesser of (x) the Total
Commitment at such time and (y) the Borrowing Base at such time.
Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the
Borrower that the issuance or amendment so requested complies with
the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower’s ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed
to have been issued pursuant hereto, and from and after the Closing
Date shall be subject to and governed by the terms and conditions
hereof.
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(b) The L/C Issuer shall
not issue any Letter of Credit, if:
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(i)
Subject to §4.1.6, the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Lenders have
approved such expiry date; or
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(ii)
the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders
have approved such expiry date.
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(c) The L/C Issuer shall
not be under any obligation to issue any Letter of Credit if:
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(i)
any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction
over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the L/C Issuer
with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the date hereof and which the L/C
Issuer in good faith deems material to it;
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(ii)
the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer;
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(iv)
such Letter of Credit is to be denominated in a currency other than
Dollars;
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(v)
such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder;
or
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(vi) a
default of any Lender’s obligations to fund under §4.1.4
exists or any Lender is at such time a Delinquent Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements
with the Borrower or such Lender to eliminate the L/C
Issuer’s risk with respect to such Lender.
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(d) The L/C Issuer shall
not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its
amended form under the terms hereof.
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(e) The L/C Issuer shall
be under no obligation to amend any Letter of Credit if (A) the L/C
Issuer would have no obligation at such time to issue such Letter
of Credit in its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
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(f) The L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C
Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in §14 with
respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of
Credit as fully as if the term “Administrative Agent”
as used in §14 included the L/C Issuer with respect to such
acts or omissions, and (B) as additionally provided herein with
respect to the L/C Issuer.
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4.1.2. Procedures for the Issuance and Amendment
of Letters of Credit . (a) Each Letter of
Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to
the Administrative Agent) in the form of Letter of Credit
Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later
than 11:00 a.m. at least two Business Days (or such later date and
time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case
of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B)
the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other
matters as the L/C Issuer may require. Additionally, the Borrower
shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter
of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may require.
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(b) Promptly after
receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such Letter of
Credit Application from the Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Unless
the L/C Issuer has received written notice from any Lender, the
Administrative Agent, the Borrower or any Guarantor, at least one
Business Day prior to the requested date of issuance or amendment
of the applicable Letter of Credit, that one or more applicable
conditions contained in §§11 or 12 shall not then be
satisfied, then, subject to the terms and conditions hereof, the
L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in
such Letter of Credit in an amount equal to the product of such
Lender’s Commitment Percentage times the amount of
such Letter of Credit.
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(c) Promptly after its
delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the
beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
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4.1.3. Applicability of the ISP and Uniform
Customs . Unless otherwise expressly agreed by
the L/C Issuer and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the “International Standby
Practices 1998” (ISP) published by the Institute of
International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
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4.1.4. Reimbursement Obligations of Lenders
. Each Lender severally agrees that it shall be
absolutely and unconditionally liable, without regard to the
occurrence of any Default or Event of Default or any other
condition precedent or circumstance whatsoever, including (A) any
setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever or (B) any other occurrence, event
or condition, whether or not similar to any of the foregoing, to
the extent of such Lender’s Commitment Percentage, to
reimburse the L/C Issuer through the Administrative Agent on demand
for the amount of each draft paid by the L/C Issuer under each
Letter of Credit to the extent that such amount is not reimbursed
by the Borrower pursuant to §4.2 (such agreement for a Lender
being called herein the “ Letter of Credit
Participation ” of such Lender).
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4.1.5. Participations of Lenders .
Each such payment made by a Lender shall be treated as
the purchase by such Lender of a participating interest in the
Borrower’s Reimbursement Obligation under §4.2 in an
amount equal to such payment. Each Lender shall share in accordance
with its participating interest in any interest which accrues
pursuant to §4.2 and in any applicable security for such
Reimbursement Obligation.
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4.1.6. Auto-Extension Letters of Credit .
If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “ Auto-Extension Letter of
Credit ”); provided that (i) any such
Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later
than on the date (the “ Non-Extension Notice Date
”) in each such twelve-month period as agreed upon at the
time such Letter of Credit is issued and (ii) any extension of a
Auto-Extension Letter of Credit shall not extend the expiry date of
such Letter of Credit to a date later than the Letter of Credit
Expiration Date. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the
L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date;
provided , however , that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
§4.1.1(b) or (c) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) on or before the day that
is five Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not
to permit such extension or (2) from the Administrative Agent, any
Lender, the Borrower or any Guarantor that one or more of the
applicable conditions specified in §12 is not then satisfied,
and in each such case directing the L/C Issuer not to permit such
extension.
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4.2. Reimbursement Obligation of the Borrower
. In order to induce the L/C Issuer to issue,
extend and renew each Letter of Credit and the Lenders to
participate therein, the Borrower hereby agrees to reimburse or pay
to the L/C Issuer, for the account of the L/C Issuer or (as the
case may be) the Lenders, with respect to each Letter of Credit
issued, extended or amended by the L/C Issuer hereunder,
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(a) except as otherwise
expressly provided in §4.2(b) and (c), not later than 11:00
a.m. (Boston time) on each date that any draft presented under such
Letter of Credit is honored (the “ Honor Date ”)
by the L/C Issuer, or the L/C Issuer otherwise makes a payment with
respect thereto, (i) the amount paid by the L/C Issuer under or
with respect to such Letter of Credit, and (ii) the amount of any
taxes, fees, charges or other costs and expenses whatsoever
incurred by the L/C Issuer or any Lender in connection with any
payment made by the L/C Issuer or any Lender under, or with respect
to, such Letter of Credit,
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(b) upon the reduction
(but not termination) of the Total Commitment to an amount less
than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Administrative Agent
for the benefit of the Lenders and the L/C Issuer as Cash
Collateral for all Reimbursement Obligations, and
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(c) upon the termination
of the Total Commitment, or the acceleration of the Reimbursement
Obligations with respect to all Letters of Credit in accordance
with §13, an amount equal to the then Maximum Drawing Amount
on all Letters of Credit, which amount shall be held by the
Administrative Agent for the benefit of the Lenders and the L/C
Issuer as Cash Collateral for all Reimbursement Obligations.
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Each such payment shall be made to the L/C Issuer at the
Administrative Agent’s Office in immediately available funds.
Interest on any and all amounts remaining unpaid by the Borrower
under this §4.2 at any time from the date such amounts become
due and payable (whether as stated in this §4.2, by
acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Administrative Agent, for
the benefit of the Lenders and the L/C Issuer, on demand at the
rate specified in §5.10 for overdue principal on the Revolving
Credit Loans.
4.3. Letter of Credit Payments .
(a) If any draft shall be presented or other demand for
payment shall be made under any Letter of Credit, the L/C Issuer
shall notify the Administrative Agent and the Borrower of the date
and amount of the draft presented or demand for payment and of the
date and time when it expects to pay such draft or honor such
demand for payment. If the Borrower fails to reimburse the L/C
Issuer as provided in §4.2 on or before the date that such
draft is paid or other payment is made by the L/C Issuer, the
Administrative Agent may at any time thereafter notify the Lenders
of the amount of any such Unpaid Reimbursement Obligation and the
amount of each Lender’s Commitment Percentage thereof. In
such event, the Borrower shall be deemed to have requested a Base
Rate Loan to be disbursed on the Honor Date in an amount equal to
the Unpaid Reimbursement Obligation, without regard to the minimum
and multiples specified in §2.6 for the principal amount of
Base Rate Loans, but subject to the other conditions set forth in
§§2.1, 2.6 and 12 (other than the delivery of a Loan
Request). Any notice given by the L/C Issuer or the Administrative
Agent pursuant to this §4.3 may be given by telephone if
immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice. Each Lender shall upon any notice
pursuant to §4.3 make funds available to the Administrative
Agent for the account of the L/C Issuer at the Administrative
Agent’s Office in an amount equal to its Commitment
Percentage of the Unpaid Reimbursement Obligation not later than
1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of
§4.3(b), each Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received
to the L/C Issuer.
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(b) With respect to any
Unpaid Reimbursement Obligation that is not fully refinanced by
Base Rate Loans because the conditions set forth in §12 cannot
be satisfied or for any other reason, the Borrower shall be deemed
to have incurred from the L/C Issuer an L/C Borrowing in the amount
of the Unpaid Reimbursement Obligation that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the rate set forth in
§5.10.1. In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to
§4.3(a) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation
obligation under this §4.
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(c) Until each Lender
funds its Commitment Percentage of the Loans or participations as
set forth in this §4.3 to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of
such Lender’s Commitment Percentage of such amount shall be
solely for the account of the L/C Issuer.
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(d) If any Lender fails
to make available to the Administrative Agent for the account of
the L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this §4.3 by the time
specified in §4.3, the applicable L/C Issuer shall be entitled
to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry
rules on interbank compensation. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
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(e) At any time after the
L/C Issuer has made a payment under any Letter of Credit and has
received from any Lender such Lender’s L/C Advance in respect
of such payment in accordance with §4.3, if the Administrative
Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its
Commitment Percentage thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which
such Lender’s L/C Advance was outstanding) in the same funds
as those received by the Administrative Agent. If any payment
received by the Administrative Agent for the account of the L/C
Issuer pursuant to §4.3 is required to be returned in
connection with any bankruptcy or insolvency proceeding or
otherwise (including pursuant to any settlement entered into by the
L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its
Commitment Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this
Agreement.
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4.4. Obligations Absolute .
The Borrower’s obligations under this §4
shall be absolute, irrevocable and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or
Event of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the Borrower may
have or have had against the L/C Issuer, the Administrative Agent,
any Lender or any beneficiary of a Letter of Credit. The Borrower
further agrees with the L/C Issuer, the Administrative Agent and
the Lenders that the L/C Issuer, the Administrative Agent and the
Lenders shall not be responsible for, and the Borrower’s
Reimbursement Obligations under §4.2 shall not be affected by,
among other things, the validity or genuineness of documents or of
any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Borrower, the beneficiary of
any Letter of Credit or any financing institution or other party to
which any Letter of Credit may be transferred or any claims or
defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The L/C Issuer, the
Administrative Agent and the Lenders shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. The Borrower agrees that any
action taken or omitted by the L/C Issuer, the Administrative Agent
or any Lender under or in connection with each Letter of Credit and
the related drafts and documents, if done in good faith and in the
absence of gross negligence or willful misconduct, shall be binding
upon the Borrower and shall not result in any liability on the part
of the L/C Issuer, the Administrative Agent or any Lender to the
Borrower. The Borrower shall promptly examine a copy of each Letter
of Credit and each amendment thereto that is delivered to it and,
in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower
will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as
aforesaid.
4.5. Role of Issuer . Each
Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the L/C Issuer shall not have any responsibility
to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document. None of the L/C Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer
Document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided , however , that
this assumption is not intended to, and shall not, preclude the
Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant
or assignee of the L/C Issuer shall be liable or responsible for
any of the matters described in §4.4; provided ,
however , that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to
it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not
be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
4.6. Letter of Credit Fees .
The Borrower agrees to pay to the Administrative Agent
in respect of each Letter of Credit the following fees (each, a
“ Letter of Credit Fee ”) computed for the
period from and including the date of issuance, extension or
amendment of such Letter of Credit to the expiry date of such
Letter of Credit equal to the Applicable Margin per annum with
respect to Letter of Credit Fees of the maximum amount available to
be drawn under such Letter of Credit, which shall be for the
accounts of the Lenders in accordance with their respective
Commitment Percentages. Such Letter of Credit Fees shall be payable
quarterly in arrears on the first Business Day of each calendar
quarter (or portion thereof) for the immediately preceding calendar
quarter and on the Revolving Credit Loan Maturity Date. In
addition, the Borrower agrees to pay a fronting
