CREDIT AGREEMENT dated as of February 7, 2011 among DIRECTV HOLDINGS LLC, as Borrower, CERTAIN SUBSIDIARIES OF THE BORROWER, as Guarantors, THE LENDERS PARTY HERETO, CITIBANK, N.A., as Administrative Agent, BARCLAYS CAPITAL, as Syndication Agent, CREDIT SUISSE SECURITIES (USA) LLC, J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, THE ROYAL BANK OF SCOTLAND PLC and UBS AG, STAMFORD BRANCH as Co-Documentation Agents, and CITIGROUP GLOBAL MARKETS INC., BARCLAYS CAPITAL, CREDIT SUISSE SECURITIES (USA) LLC, J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, RBS SECURITIES INC. and UBS AG, STAMFORD BRANCH as Joint Lead Arrangers and Joint Bookrunners TABLE OF CONTENTS

dated as of February 7, 2011

among

DIRECTV HOLDINGS LLC,

as Borrower,

CERTAIN SUBSIDIARIES OF THE BORROWER,

as Guarantors,

THE LENDERS PARTY HERETO,

CITIBANK, N.A.,

as Administrative Agent,

BARCLAYS CAPITAL,

as Syndication Agent,

CREDIT SUISSE SECURITIES (USA) LLC,

J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

 and

UBS AG, STAMFORD BRANCH

as Co-Documentation Agents,

and

CITIGROUP GLOBAL MARKETS INC.,

BARCLAYS CAPITAL,

CREDIT SUISSE SECURITIES (USA) LLC,

J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

 and

as Joint Lead Arrangers and Joint Bookrunners

 

 

 

 

 

Section 1.01. Defined Terms.

Section 1.02. Interpretive Provisions.

Section 1.03. Accounting Terms and Provisions.

Section 1.04. Rounding.

Section 1.05. Times of Day.

Section 1.06. Exchange Rates; Currency Equivalents.

Section 1.07. Additional Alternative Currencies.

Section 1.08. Change of Currency.

Section 1.09. Letter of Credit Amounts.

 

 

 

 

Section 2.01. Commitments.

Section 2.02. Borrowings, Conversions and Continuations.

Section 2.03. Additional Provisions with Respect to Letters of Credit.

Section 2.04. Additional Provisions with Respect to Swingline Loans.

Section 2.05. Repayment of Loans.

Section 2.06. Prepayments.

Section 2.07. Termination or Reduction of Revolving Commitments.

Section 2.08. Interest.

Section 2.09. Fees.

Section 2.10. Computation of Interest and Fees.

Section 2.11. Payments Generally; Administrative Agent’s Clawback.

Section 2.12. Sharing of Payments by Revolving Lenders.

Section 2.13. Evidence of Debt.

Section 2.14. Defaulting Lenders.

 

 

 

 

Section 3.01. Taxes.

Section 3.02. Illegality.

Section 3.03. Inability to Determine Rates.

Section 3.04. Increased Cost; Capital Adequacy.

Section 3.05. Compensation for Losses.

Section 3.06. Mitigation Obligations; Replacement of Lenders.

Section 3.07. Survival Losses.

 

 

 

 

Section 4.01. The Guaranty.

Section 4.02. Obligations Unconditional.

Section 4.03. Reinstatement.

Section 4.04. Certain Waivers.

Section 4.05. Remedies.

Section 4.06. Rights of Contribution.

Section 4.07. Guaranty of Payment; Continuing Guaranty.

Section 4.08. Release.

 

 

 

 

Section 5.01. Conditions to Initial Credit Extensions.

Section 5.02. Conditions to All Credit Extensions.

 

 

 

 

Section 6.01. Existence, Qualification and Power.

Section 6.02. Authorization; No Contravention.

Section 6.03. Governmental Authorization; Other Consents.

Section 6.04. Binding Effect.

Section 6.05. Financial Statements.

Section 6.06. No Material Adverse Effect.

Section 6.07. Litigation.

Section 6.08. No Default.

Section 6.09. Taxes.

Section 6.10. ERISA Compliance.

Section 6.11. Margin Regulations; Investment Company Act.

Section 6.12. Disclosure.

Section 6.13. Compliance with Laws.

Section 6.14. Solvency.

 

 

 

 

Section 7.01. Financial Statements.

Section 7.02. Certificates; Other Information.

Section 7.03. Preservation of Existence.

Section 7.04. Payment of Taxes.

Section 7.05. Compliance with Laws.

Section 7.06. Maintenance of Property.

Section 7.07. Insurance.

Section 7.08. ERISA Compliance.

Section 7.09. Books and Records.

Section 7.10. Inspection Rights.

Section 7.11. Use of Proceeds.

Section 7.12. Joinder of Subsidiaries as Guarantors.

 

 

 

 

Section 8.01. Liens.

Section 8.02. Subsidiary Indebtedness.

Section 8.03. Mergers and Dissolutions.

Section 8.04. Change in Nature of Business.

Section 8.05. Transactions with Affiliates.

Section 8.06. Financial Covenant.

 

 

 

 

Section 9.01. Events of Default.

Section 9.02. Remedies Upon Event of Default.

Section 9.03. Application of Funds.

 

 

 

 

Section 10.01. Appointment and Authority.

Section 10.02. Administrative Agent Individually.

Section 10.03. Duties of Administrative Agent; Exculpatory Provisions.

Section 10.04. Reliance by Administrative Agent.

Section 10.05. Delegation of Duties.

Section 10.06. Resignation of Administrative Agent.

Section 10.07. Non-Reliance on Administrative Agent and Other Lenders.

Section 10.08. No Other Duties, etc.

Section 10.09. Administrative Agent May File Proofs of Claim.

Section 10.10. Release of Guarantors.

 

 

 

 

Section 11.01. Amendments, etc.

Section 11.02. Notices; Effectiveness; Electronic Communication.

Section 11.03. No Waiver; Cumulative Remedies.

Section 11.04. Expenses; Indemnity; Damage Waiver.

Section 11.05. Payments Set Aside.

Section 11.06. Successors and Assigns.

Section 11.07. Confidentiality; Treatment of Certain Information.

Section 11.08. Right of Setoff.

Section 11.09. Interest Rate Limitation.

Section 11.10. Counterparts; Integration; Effectiveness.

Section 11.11. Survival of Representations and Warranties.

Section 11.12. Severability.

Section 11.13. Replacement of Lenders; Termination of Revolving Commitments.

Section 11.14. Governing Law; Jurisdiction; etc.

Section 11.15. Waiver of Jury Trial.

Section 11.16. USA PATRIOT Act Notice.

Section 11.17. Acknowledgements.

Schedule 2.01(a)                                Revolving Lenders and Revolving Commitments

Schedule 2.01(b)                                Initial L/C Fronting Sublimits

 

Exhibit 2.01(d)                         Form of Revolving Lender Joinder Agreement

Exhibit 2.02                         Form of Loan Notice

Exhibit 2.13-1                         Form of Revolving Note

Exhibit 2.13-2                         Form of Swingline Note

Exhibit 7.02(a)                         Form of Compliance Certificate

Exhibit 7.12                         Form of Joinder Agreement

Exhibit 11.06                         Form of Assignment and Assumption

 

This CREDIT AGREEMENT (this “Credit Agreement”) is entered into as of February 7, 2011, among DIRECTV HOLDINGS LLC, a Delaware limited liability company (the “Borrower”), the Guarantors identified herein, the Revolving Lenders party hereto and CITIBANK, N.A., as Administrative Agent.

 

 

WHEREAS, the Borrower and the Guarantors have requested that the Revolving Lenders provide a revolving credit facility for the purposes set forth herein; and

 

WHEREAS, the Revolving Lenders have agreed to make the requested facility available on the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

 

 

 

 

Definitions and Accounting Terms

 

Section 1.01 . Defined Terms.

 

As used in this Credit Agreement, the following terms have the meanings provided below:

 

“Act” has the meaning provided in Section 11.16.

 

“Activities” has the meaning provided in Section 10.02(b).

 

“Additional Notes” means promissory notes or other instruments or agreements evidencing unsecured senior or subordinated indebtedness issued by the Borrower or the Borrower and the Co-Issuer in the capital markets involving an initial issuance in an aggregate principal amount of more than $200,000,000 after the Closing Date.

 

“Administrative Agent” means Citibank in its capacity as administrative agent for the Revolving Lenders under any of the Credit Documents, or any successor administrative agent.

 

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth in Section 11.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Revolving Lenders.

 

“Administrative Questionnaire” means an administrative questionnaire for the Revolving Lenders in a form supplied by the Administrative Agent.

 

“Affiliate” means, 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’s Group” has the meaning provided in Section 10.02(b).

 

“Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving Lenders.

 

“Aggregate Revolving Committed Amount” has the meaning provided in Section 2.01(a).

 

“Alternative Currency” means each of Australian Dollars, Canadian Dollars, Euro, Sterling, Swiss Francs, Swedish Kroner, Yen and each other currency (other than Dollars) that is approved in accordance with Section 1.07.

 

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as reasonably determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

 

“Alternative Currency Sublimit” means $100,000,000.

 

“Applicable Percentage” means the following percentages per annum:

 

APPLICABLE PERCENTAGES FOR REVOLVING LOANS, LETTERS OF CREDIT AND REVOLVING COMMITMENTS
Pricing Level	Eurocurrency Rate Loans and Letter of Credit Fee	Base Rate Loans	Commitment Fee
I	1.000%	0.000%	0.20%
II	1.250%	0.250%	0.25%
III	1.500%	0.500%	0.30%
IV	1.750%	0.750%	0.35%
V	2.000%	1.000%	0.45%

 

Pricing Level I pricing shall apply if, on any date of determination, the Debt Rating is A- or higher by S&P or is A3 or higher by Moody’s.

 

Pricing Level II pricing shall apply if, on any date of determination, Pricing Level I pricing does not apply and the Debt Rating is BBB+ or higher by S&P or is Baa1 or higher by Moody’s.

 

Pricing Level III pricing shall apply if, on any date of determination, Pricing Level I and Pricing Level II pricing does not apply and the Debt Rating is BBB or higher by S&P or is Baa2 or higher by Moody’s.

 

Pricing Level IV pricing shall apply if, on any date of determination, Pricing Level I, Pricing Level II and Pricing Level III pricing does not apply and the Debt Rating is BBB- or higher by S&P or is Baa3 or higher by Moody’s.

 

Pricing Level V pricing shall apply if, on any date of determination, Pricing Level I, Pricing Level II, Pricing Level III and Pricing Level IV pricing does not apply.

 

The Applicable Percentages for Revolving Loans (including Swingline Loans and Letters of Credit) and the Commitment Fee will be based on the Borrower’s Debt Ratings and, if a Debt Rating is issued by each Rating Service, then the higher of such Debt Ratings shall apply; provided that (a) if Debt Ratings are provided by each of the Rating Services and the Debt Ratings by the Rating Services indicate different Pricing Levels of more than one level, then the applicable Pricing Level shall be determined by reference to the Debt Rating that is one level lower than the higher Debt Rating, (b) if there is only one (1) Debt Rating then the applicable Pricing Level shall be determined by reference to the Pricing Level indicated thereby and (c) if there is no Debt Rating, then the Appl icable Percentage shall be set at Pricing Level V. Each change in the Applicable Percentage resulting from a publicly announced change in the Debt Ratings shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

 

“Applicable Time” means, with respect to any Credit Extension or payment in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“Approved Electronic Communication” means each communication that any Person is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Credit Document or the transactions contemplated therein, including any financial statement, financial and other report, notice, request, certificate and other information material; provided that, solely with respect to delivery of any such communication by any Person to the Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s right to effect delivery of such communication by posting such communication to the Approved Electronic Platform or the protections afforded hereby to the Administrative Ag ent in connection with any such posting, “Approved Electronic Communication” shall exclude (i) any Loan Notice and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion or continuation of an existing, Borrowing, (ii) any notice pursuant to Section 2.06(a) and Section 2.06(b) and any other notice relating to the payment of any principal or other amount due under any Credit Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article 5 or any other condition to any Borrowing or other extension of credit hereunder or any condition pre cedent to the effectiveness of this Credit Agreement.

 

“Approved Electronic Platform” has the meaning provided in Section 11.02(d).

 

“Assignment and Assumption” means an assignment and assumption entered into by a Revolving Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06) and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06 or any other form approved by the Administrative Agent.

 

“Australian Dollar” means the lawful currency of Australia.

 

“Auto-Extension Letter of Credit” has the meaning provided in Section 2.03(b)(iii).

 

“Auto-Reinstatement Letter of Credit” has the meaning provided in Section 2.03(b)(iv).

 

“Barclays” means Barclays Bank PLC, together with its successors.

 

“Barclays Capital” means the investment banking division of Barclays.

 

“Base Rate” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of (a) the rate of interest announced publicly by Citibank in New York, New York from time to time, as Citibank’s base rate and (b) ½ of one percent per annum above the Federal Funds Rate.

 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

 

“Borrower” has the meaning provided in the recitals hereto, together with its successors and permitted assigns.

 

“Borrowing” means (a) a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period or (b) a borrowing of Swingline Loans, as appropriate.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in New York, New, York, and: (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Credit Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank market; (b) if such day relates to any dealings in Euro to be carried out pursuant to this Credit Agreement, means an y such day which is a TARGET Day and (c) if such day relates to any dealings in any Alternative Currency other than Euro to be carried out pursuant to this Credit Agreement, means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such Alternative Currency.

 

“Canadian Dollars” means the lawful currency of Canada.

 

“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

“Cash Collateralize” means, in respect of an obligation (a) to pledge cash collateral in Dollars (or other applicable currency as reasonably determined by the Administrative Agent) at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, securing on a first priority basis such obligation, (b) to provide a letter of credit backstopping such obligation in form and substance and from a letter of credit issuer satisfactory to the applicable L/C Issuer or the Swingline Lender benefiting from such letter of credit in its sole discretion or (c) other credit support for such obligation in form and substance satisfactory to the applicable L/C Issuer or the Swingline Lender benefiting from such other credit support in i ts sole discretion (and “Cash Collateralization” and “Cash Collateral” has a corresponding meaning).

 

“CGMI” means Citigroup Global Markets Inc., together with its successors.

 

“Change in Law” means the occurrence, after the date of this Credit Agreement (or, in the case of a permitted assignee of a Revolving Lender, after the date such assignee becomes a party hereto), of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, including, without limitation, any such change resulting from the enactment or issuance of any regulation or regulatory interpretation affecting an existing Law or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

“Change of Control” means either (a) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Parent Company becomes the “beneficial owner” (as that term is defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly (including through a Parent Company) of more than 50% of the Borrower’s outstanding Voting Stock, measured by voting power rather than number of shares or (b) the first day on which the majority of the members of the Borrower’s board of directors cease to be Continuing Directors.

 

“Citibank” means Citibank, N.A., together with its successors.

 

“Closing Date” means the date hereof, which date is the date upon which each of the conditions set forth in Section 5.01 has been satisfied or waived in accordance with Section 11.01.

 

“Co-Issuer” means DIRECTV Financing Co., Inc., a Delaware corporation.

 

“Commitment Fee” has the meaning provided in Section 2.09(a).

 

“Commitment Period” means the period from and including the Closing Date to the earlier of (a)(i) in the case of Revolving Loans and Swingline Loans, the Revolving Termination Date or (ii) in the case of the Letters of Credit, the L/C Expiration Date, or (b) in each case, the date on which the Revolving Commitments shall have been terminated as provided herein.

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit 7.02(a).

 

“Consolidated EBITDA” means, with respect to any Person for any period, an amount equal to (a) Consolidated Net Income (before discontinued operations) of such Person for such period plus (b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income of such Person for such period in accordance with GAAP, but without duplication, (i) any provision for income taxes, (ii) consolidated interest expense, (iii) loss from extraordinary items, (iv) depreciation, depletion and amortization of assets, including those related to intangibles, and financing or acquisition costs, (v) cash received during such period in respect of any non-cash gains to Consolidated Net Income accrued during a prior period and d educted in determining Consolidated EBITDA pursuant to clause (c)(iv) below and (vi) all other non-cash charges and non-cash losses for such period (including, but not limited to, stock-based compensation expense and restructuring and impairment charges), minus (c) the sum of, in each case to the extent included in the calculation of Consolidated Net Income of such Person for such period in accordance with GAAP, but without duplication, (i) any credit for income tax, (ii) gains from extraordinary items, (iii) cash payments made during such period in respect of any non-cash charges to income accrued during a prior period and added back in determining Consolidated EBITDA pursuant to clause (b)(vi) above and (iv) any other non-cash gains which have been added in determining Consolidated Net Income.

 

“Consolidated Group” means the Borrower and its consolidated Subsidiaries, as determined in accordance with GAAP.

 

“Consolidated Net Income” means, for any Person for any period, the net income (or loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis in conformity with GAAP.

 

“Consolidated Total Funded Debt” of any Person means all items that, in accordance with GAAP, would be classified as indebtedness on a consolidated balance sheet of such Person minus the aggregate of cash and cash equivalents held by such Person in excess of $25,000,000.

 

“Consolidated Total Leverage Ratio” means, as of the last day of each fiscal quarter, the ratio of (i) Consolidated Total Funded Debt on such day to (ii) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending as of such day.

 

“Continuing Directors” means, as of any date of determination, any member of a Person’s board of directors who (i) was a member of such board of directors on the date hereof or (ii) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election.

 

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

 

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

 

“Credit Agreement” has the meaning provided in the recitals hereto, as the same may be amended and modified from time to time.

 

“Credit Documents” means this Credit Agreement, the Notes, the Fee Letters, the Issuer Documents, the Joinder Agreements and the Revolving Lender Joinder Agreements.

 

“Credit Extension” means each of the following: (a) a Borrowing, and (b) an L/C Credit Extension.

 

“Credit Parties” means, collectively, the Borrower and the Guarantors.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“Debt Ratings” means the Borrower’s long-term senior unsecured, non-credit enhanced debt ratings provided by the Rating Services.

 

“Default” means any event, act or condition that constitutes an Event of Default or that, with notice, the passage of time, or both, would constitute an Event of Default.

 

“Default Rate” means an interest rate equal to (a) with respect to Obligations other than (i) Eurocurrency Rate Loans and (ii) Letter of Credit Fees, the Base Rate plus the Applicable Percentage applicable to such Loans plus two percent (2.0%) per annum; (b) with respect to Eurocurrency Rate Loans, the Eurocurrency Rate plus the Applicable Percentage applicable to such Loans plus two percent (2.0%) per annum; and (c) with respect to Letter of Credit Fees, a rate equal to the Applicable Percentage p lus two percent (2.0%) per annum.

 

“Defaulting Lender” means, at any time, a Revolving Lender as to which (i) such Revolving Lender has failed for three (3) or more Business Days to comply with its obligations under this Credit Agreement to make a Loan, make a payment to the applicable L/C Issuer in respect of an Unreimbursed Amount or make a payment to the Swingline Lender in respect of a Swingline Loan (each a “funding obligation”), (ii) such Revolving Lender has notified the Administrative Agent, or has stated publicly, that it will not comply with any such funding obligation hereunder, or has defaulted on its funding obligations under any other loan agreement, credit agreement or other similar financing agreement, (iii) such Revolving Lender has, for three (3) or more Business Days, failed to confirm in writing to the Administrative Agent and the Borrower, in response to a written request of the Administrative Agent or the Borrower, that it will comply with its funding obligations hereunder or (iv) a Revolving Lender Insolvency Event has occurred and is continuing with respect to such Revolving Lender (provided that neither the reallocation of funding obligations provided for in Section 2.14(b) as a result of a Revolving Lender's being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Any determination that a Revolving Lender is a Defaulting Lender under clauses (i) through (iv) above will be made by the Administrative Agent in its reasonable judgment acting in good faith. The Administrative Agent will promptly send notice of such determination to the Borrower, the L/C Issuers, the Swingline Lender and the Revolving Lenders.

 

“Defaulting Lender Exposure” means, with respect to a Defaulting Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding L/C Obligations and Swingline Loans.

 

“Dollar” or “$” means the lawful currency of the United States.

 

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to any amount denominated in an Alternative Currency, the amount converted into Dollars as reasonably determined by the Administrative Agent using the 12:00 noon (New York City) OANDA rate for such Alternative Currency on the most recent Revaluation Date or, if such day is not a Business Day, on the immediately preceding Business Day.

 

“Eligible Assignee” means (a) a Revolving Lender; (b) an Affiliate of a Revolving Lender; (c) any financial institution whose home office is domiciled in a country that is a member of the Organization for Economic Cooperation and Development and has capital and surplus in excess of $500,000,000 and (d) any other Person (other than a natural person) approved by the Borrower in its sole discretion and approved by the other party or parties whose approval is required under Section 11.06(b); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries; provided further that no Revolving Lender that is a Defaulting Lender, nor an Affiliate of such Defaulting Lender, shall be an Eligible Assignee unless consented to in writing by the Borrower, the Administrative Agent and each L/C Issuer.

 

“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

“Environmental Laws” means any and all applicable federal, state, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

 

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

 

“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a 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 a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemploye r Plan; (e) an event or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any 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.

 

“EURIBO Rate” means for any Interest Period with respect to any Loan denominated in Euro, the rate per annum equal to the rate per annum determined by the Banking Federation of the European Union for the relevant period, as published by Reuters (or other commercially available source providing quotations of such rate as designated by the Administrative Agent from time to time) or, if such rate is not available, the arithmetic mean of the rate (rounded upwards to the nearest four decimal places) quoted by three major banks reasonably selected by the Administrative Agent at the request of the Administrative Agent to leading banks in the European interbank market, at or about 11:00 a.m., Brussels time, two (2) Business Days prior to the commencement of such Interest Period.

 

“Euro” means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

 

“Eurocurrency Base Rate” has the meaning specified in the definition of Eurocurrency Rate.

 

“Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

Eurocurrency Rate =	Eurocurrency Base Rate
	1.00 minus Eurocurrency Reserve Percentage

 

Where,

 

(i)           “Eurocurrency Base Rate” means, for such Interest Period, (i) in the case of any Loan denominated in Dollars or any Alternative Currency other than Euro, 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 (2) Business Days prior to the commencement of such Interest Period, for deposits in the applicable currency (for delivery on the first day of such Interest Period) with a term equivalent to such In terest Period. If such rate is not available at such time for any reason, then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the arithmetic average of the rates at which deposits in such currency approximately equal in principal amount to $5,000,000 and for a maturity comparable to such Interest Period are offered to the principal London offices of the Reference Banks (or, if any Reference Bank does not at the time maintain a London office, the principal London office of any Affiliate of such Reference Bank) in Same Day Funds in the London interbank market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period and (ii) in the case of any Loan denominated in Euro, the EURIBO Rate.

 

(ii)           “Eurocurrency Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five (5) decimal places) in effect on such day, whether or not applicable to any Revolving 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 Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective date of a ny change in the Eurocurrency Reserve Percentage.

 

“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

 

“Eurocurrency Reserve Percentage” has the meaning specified in the definition of Eurocurrency Rate.

 

“Event of Default” has the meaning provided in Section 9.01.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Excluded Taxes” means, with respect to the Administrative Agent, any Revolving Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated) and franchise Taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Revolving Lender, in which its applicable Lending Office is located or as a result of a present or former connection between such Person and the jurisdiction of the Governmental Authority imposing such Tax (other than connections arising solely from such Person having exec uted, delivered, or become a party to, performed its obligations or received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of a recipient (other than an assignee pursuant to a request by the Borrower under Section 11.13), any withholding Tax that is imposed on amounts payable to such recipient at the time such recipient becomes a party hereto (or designates a new Lending Office) or is attributable to such recipient’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new Le nding Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a) and (d) any U.S. federal withholding tax that would not have been imposed but for a failure by the Administrative Agent, any Revolving Lender, or any L/C Issuer (or any financial institution through which any payment is made to such party by or on account of any obligation of the Borrower hereunder) to comply with the applicable requirements of Sections 1471-1474 of the Internal Revenue Code.

 

“Existing Credit Agreement” means the Credit Agreement, dated as of April 13, 2005, among the Borrower, the lenders party thereto from time to time, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A., as Syndication Agent and the other parties thereto as amended or modified from time to time.

 

“Existing Senior Notes” means the senior notes issued by the Borrower and the Co-Issuer in the capital markets and outstanding on the date hereof.

 

“Federal Funds Rate” means, 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 immediately 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 necessar y, to the multiple of 1/100th of 1%) charged to Citibank on such day on such transactions as reasonably determined by the Administrative Agent.

 

“Fee Letters” means (a) the fee letter, dated as of January 12, 2011, among the Borrower, CGMI and Barclays Bank and (b) the administrative agent fee letter, dated as of January 12, 2011, between the Borrower and CGMI.

 

“Foreign Lender” means any Revolving Lender or L/C Issuer that is not a United States person under Section 7701(a)(30) of the Internal Revenue Code.

 

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

 

“GAAP” means generally accepted accounting principles in effect in the United States from time to time; provided, that, the Borrower may elect by written notice to the Administrative Agent that its financial statements be prepared and maintained in accordance with International Financial Reporting Standards and, in such event, “GAAP” shall mean the International Financial Reporting Standards as in effect from time to time, subject to the provisions of Section 1.03.

 

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra- national bodies such as the European Union or the European Central Bank).

 

“Granting Lender” has the meaning specified in Section 11.06(h).

 

“Guaranteed Obligations” has the meaning provided in Section 4.01(a).

 

“Guarantors” means, collectively, each Subsidiary of the Borrower identified on the signature pages hereto as a “Guarantor” and each other Subsidiary of the Borrower that becomes a Guarantor pursuant to the terms hereof, in each case, together with their successors and permitted assigns.

 

“Hazardous Materials” means all materials, substances or wastes characterized, classified or regulated as hazardous, toxic, pollutant, contaminant or radioactive under Environmental Laws, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.

 

“Honor Date” has the meaning provided in Section 2.03(c)(i).

 

“Incremental Revolving Commitments” has the meaning provided in Section 2.01(d).

 

“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than ninety (90) days incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such prop erty), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit (but only to the extent of all drafts drawn thereunder), (g) all Support Obligations in respect of Indebtedness of other Persons and (h) all Indebtedness referred to in clauses (a) through (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

 

“Indemnified Taxes” means Taxes other than Excluded Taxes.

 

“Indemnitee” has the meaning provided in Section 11.04(b).

 

“Information” has the meaning specified in Section 11.07(a).

 

“Initial L/C Issuer” means each of Citibank, Barclays, Bank of America, N.A., JPMorgan Chase Bank, N.A. and Mizuho Corporate Bank, Ltd.

 

“Interest Payment Date” means, (a) as to any Base Rate Loan (including Swingline Loans), the last Business Day of each March, June, September and December and the Revolving Termination Date and, in the case of any Swingline Loan, any other dates as may be mutually agreed upon by the Borrower and the Swingline Lender, and (b) as to any Eurocurrency Rate Loan, the last Business Day of each Interest Period for such Loan, the date of repayment of principal of such Loan and the Revolving Termination Date and in addition, where the applicable Interest Period exceeds three (3) months, the date every three (3) months after the beginning of such Interest Period. If an Interest Payment Date falls on a date that is not a Business Day, such Interest Payment Date shall be deemed to b e the immediately succeeding Business Day.

 

“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one (1), two (2), three (3) or six (6) and, with prior written consent of all applicable Revolving Lenders, nine (9) or twelve (12) months thereafter, as selected by the Borrower in its Loan Notice or such other period that is twelve months or less requested by the Borrower and consented to by all Revolving Lenders; provided that:

 

(a)           any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the immediately succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately preceding Business Day;

 

(b)           any Interest Period that begins on the last 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 Business Day of the calendar month at the end of such Interest Period; and

 

(c)           no Interest Period with respect to any Revolving Loan shall extend beyond the Revolving Termination Date.

 

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

 

“IRS” means the United States Internal Revenue Service.

 

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

“Issuer Documents” means, with respect to any Letter of Credit, the L/C Application and any other document, agreement or instrument (including such Letter of Credit) entered into by the Borrower (or any Subsidiary) and the applicable L/C Issuer (or in favor of such L/C Issuer), relating to such Letter of Credit.

 

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 7.12 executed and delivered in accordance with the provisions of Section 7.12.

 

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, including, without limitation, Environmental Laws.

 

“L/C Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any L/C Borrowing. All L/C Advances shall be denominated in Dollars.

 

“L/C Application” means, with respect to each L/C Issuer, an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by such L/C Issuer.

 

“L/C Borrowing” means any extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed or refinanced as a Borrowing of Revolving Loans. Each L/C Borrowing shall be denominated in Dollars.

 

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

 

“L/C Expiration Date” means the day that is five (5) Business Days prior to the Revolving Termination Date.

 

“L/C Fronting Sublimit” means, (i) for each Initial L/C Issuer, the amount of such L/C Issuer’s commitment to issue and to honor payment obligations under Letters of Credit, as set forth on Schedule 2.01(b) hereto and (ii) for each other L/C Issuer, the amount agreed between such L/C Issuer and the Borrower.

 

“L/C Issuer” means (a) each Initial L/C Issuer and (b) any other Revolving Lender requested by the Borrower that has agreed to act as an L/C Issuer and reasonably acceptable to the Administrative Agent, in its capacity as issuer of Letters of Credit hereunder, together with its successors in such capacity.

 

“L/C Obligations” means, at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so rema ining available to be drawn.

 

“L/C Sublimit” has the meaning provided in Section 2.01(b).

 

“Lending Office” means, as to any Revolving Lender, the office or offices of such Revolving Lender set forth in such Revolving Lender’s Administrative Questionnaire or such other office or offices as a Revolving Lender may from time to time notify the Borrower and the Administrative Agent.

 

“Letter of Credit” means each standby letter of credit issued hereunder.

 

“Letter of Credit Fee” has the meaning provided in Section 2.09(b)(i).

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property and any financing lease having substantially the same economic effect as any of the foregoing).

 

“Loan” means any Revolving Loan or Swingline Loan, and the Base Rate Loans and Eurocurrency Rate Loans comprising such Loans.

 

“Loan Notice” means a notice of (a) a Borrowing of Loans (including Swingline Loans), (b) a conversion of Loans from one (1) Type to the other, or (c) a continuation of Eurocurrency Rate Loans, which, if in writing, shall be substantially in the form of Exhibit 2.02.

 

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets or financial condition of the Consolidated Group taken as a whole; (b) a material impairment of the ability of the Credit Parties (taken as a whole) to perform their obligations under the Credit Documents; or (c) a material adverse effect upon the legality, validity, binding effect or the enforceability against any Credit Party of any Credit Document to which it is a party.

 

“Material Subsidiary” means, at any time and without duplication, (a) each Guarantor and (b) each Subsidiary of the Borrower whose book value of total assets comprised at least 10% of the book value of total assets of the Borrower and its Subsidiaries, on a consolidated basis, as of the last day of the fiscal quarter most recently ended for which financial statements have been furnished to the Administrative Agent pursuant to Section 7.01.

 

“Maximum Rate” has the meaning provided in Section 11.09.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“Multiemployer Plan” means any employee pension benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

“Non-Consenting Lender” has the meaning provided in Section 11.13(b).

 

“Non-Defaulting Lender” means, at any time, a Revolving Lender that is not a Defaulting Lender.

 

“Non-Extension Notice Date” has the meaning provided in Section 2.03(b)(iii).

 

“Non-Reinstatement Deadline” has the meaning provided in Section 2.03(b)(iv).

 

“Notes” means the Revolving Notes and the Swingline Note.

 

“OANDA” means the OANDA Corporation.

 

“Obligations” means, without duplication, all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicabl e, any certificate or articles of formation or organization of such entity.

 

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

 

“Outstanding Amount” means (a) with respect to Revolving Loans and Swingline Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of Revolving Loans and Swingline Loans, as the case may be, occurring on such date and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

 

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Rate, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Citibank in the applicable offshore interbank market for such currency to major banks in such interbank market.

 

“Parent” means DIRECTV, a Delaware corporation, and any of its successors.

 

“Parent Company” means Parent and any direct or indirect Subsidiary of Parent that owns any of the Borrower’s Capital Stock.

 

“Participant” has the meaning specified in Section 11.06(d).

 

“Participating Member State” means each state so described in any EMU Legislation.

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

“Permitted Business” means any of developing, owning, engaging in and dealing with all or any part of the business of domestic and international media, entertainment, electronics, communications, voice, data and network services and reasonably related extensions thereof, including but not limited to the purchase, ownership, operation, leasing and selling of, and generally dealing in or with, one or more communications satellites and the transponders thereon, and communications uplink centers and related terrestrial infrastructure, the acquisition, transmission, broadcast, production and other provision of programming relating thereto and the manufacturing, distribution and financing of equipment (including consumer electronic equipment) relating thereto.

 

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

 

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.

 

“Property” means an interest of any kind in any property or asset, whether real, personal or mixed, and whether tangible or intangible.

 

“Proposed Change” has the meaning provided in Section 11.13(b).

 

“Rating Service” means each of S&P and Moody’s.

 

“Reference Bank” means both Citibank and Barclays.

 

“Register” has the meaning provided in Section 11.06(c).

 

“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.

 

“Related Parties” means, 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.

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

“Request for Credit Extension” means (a) with respect to a Borrowing of Loans (including Swingline Loans) a Loan Notice and (b) with respect to an L/C Credit Extension, a L/C Application.

 

“Required Lenders” means, as of any date of determination, Revolving Lenders having more than fifty percent (50%) of the Aggregate Revolving Commitments or, if the Revolving Commitments shall have expired or been terminated, Revolving Lenders holding in the aggregate more than fifty percent (50%) of the aggregate principal amount of Revolving Obligations (including, in each case, the aggregate principal amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swingline Loans); provided that, the Revolving Commitments of any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders in accordance with Section 11.01.

 

“Responsible Officer” means the chief executive officer, the president, the general counsel, the chief financial officer or the treasurer of Parent or the Borrower or any officer designated as a “Responsible Officer” for purposes of this Credit Agreement by any of the foregoing officers of a Credit Party. Any document delivered hereunder that is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such entity and such Responsible Officer shall be conclusively presumed to have acted on behalf of such entity.

 

“Restricting Information” has the meaning provided in Section 11.07(b).

 

“Revaluation Date” means (a) with respect to any Eurocurrency Rate Loan denominated in an Alternative Currency, (i) the most recent date upon which one of the following shall have occurred (x) the date of Borrowing of such Eurocurrency Rate Loan, (y) each date of a continuation of such Eurocurrency Rate Loan pursuant to Section 2.02, and (z) each date a payment is made in Dollars in lieu of the applicable Alternative Currency and (ii) such other dates determined by the Administrative Agent in its reasonable judgment and (b) with respect to any Letter of Credit denominated in any Alternative Currency, (i) the most recent date upon which one of the following shall have occurred: (x) the date of issuance of such Letter of Credit, (y) the date on which the applicable L/C Iss uer was or is, as applicable, required to deliver a notice of non-renewal with respect to such Letter of Credit and (z) the first Business Day of each month, commencing on the first Business Day following the issuance of such Letter of Credit and (ii) such other dates determined by the Administrative Agent in its reasonable judgment.

 

“Revolving Commitment” means, for each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans (and to share in Revolving Obligations) hereunder.

 

“Revolving Commitment Percentage” means, for each Revolving Lender, a fraction (expressed as a percentage carried to the ninth decimal place), the numerator of which is such Revolving Lender’s Revolving Committed Amount and the denominator of which is the Aggregate Revolving Committed Amount. The initial Revolving Commitment Percentages are set forth in Schedule 2.01(a).

 

“Revolving Committed Amount” means, for each Revolving Lender, the amount of such Revolving Lender’s Revolving Commitment. The initial Revolving Committed Amounts are set forth in Schedule 2.01(a).

 

“Revolving Lender” means each of the Persons identified as a “Lender” on the signature pages hereto (and, as appropriate, includes the Swingline Lender) and each Person who joins as a Revolving Lender pursuant to the terms hereof, together with their respective successors and permitted assigns.

 

“Revolving Lender Insolvency Event” means that (i) a Revolving Lender or its Revolving Lender Parent Company is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (ii) such Revolving Lender or its Revolving Lender Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Revolving Lender or its Revolving Lender Parent Company, or such Revolving Lender or its Revolving Lender Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Revolving Lender Insolvency Event shall not occur solely by virtue of the ownership or acquisition by a Governmental Authority or an instrumentality thereof of any equity interest in such Revolving Lender or Revolving Lender Parent Company if and for so long as such ownership interest does not result in or provide such Revolving Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Revolving Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Revolving Lender, including, without limitation. this Credit Agreement.

 

“Revolving Lender Joinder Agreement” means a joinder agreement, substantially in the form of Exhibit 2.01(d), executed and delivered in accordance with the provisions of Section 2.01(d)(vi).

 

“Revolving Lender Parent Company” means, with respect to a Revolving Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Revolving Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Revolving Lender.

 

“Revolving Lender Party Appointment Period” has the meaning provided in Section 10.06(a).

 

“Revolving Loan” has the meaning provided in Section 2.01(a).

 

“Revolving Notes” means the promissory notes, if any, given to evidence the Revolving Loans, as amended, restated, modified, supplemented, extended, renewed or replaced. A form of Revolving Note is attached as Exhibit 2.13-1.

 

“Revolving Obligations” means the Revolving Loans, the L/C Obligations and the Swingline Loans.

 

“Revolving Termination Date” means February 7, 2016.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

 

“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Securities Laws” means the Securities Act of 1933, the Exchange Act, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.

 

“Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities of such Person, (b) the present fair salable 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 does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) 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 an unreasonably small capital.

 

“SPC” has the meaning specified in Section 11.06(h).

 

“Spot Rate” for a currency means the rate determined by the Administrative Agent using the 12:00 noon (New York City) OANDA rate for such currency on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that if such rate is not available at such time for any reason, then the Administrative Agent shall determine such rate (i) to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office or (ii) the rate obtained from another financial institution designated by the Administrative Agent if the Person acting in such capacit y does not have as of the date of determination a spot buying rate for any such currency; provided further that the Administrative Agent may use such rate determined or obtained on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.

 

“Sterling” means the lawful currency of the United Kingdom.

 

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise provided, “Subsidiary” shall refer to a Subsidiary of the Borrower.

 

“Successor Corporation” has the meaning provided in Section 8.03(c).

 

“Support Obligations” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash fl ow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Support Obligations shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Support Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

 

“Swedish Kroner” means the lawful currency of Sweden.

 

“Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to Section 2.01(c).

 

“Swingline Lender” means Citibank, in its capacity as such, together with any Revolving Lender requested by the Borrower and reasonably acceptable to the Administrative Agent that has agreed to act as the successor Swingline Lender, in its capacity as the Swingline Lender.

 

“Swingline Loan” has the meaning provided in Section 2.01(c).

 

“Swingline Note” means the promissory note given to evidence the Swingline Loans, as amended, restated, modified, supplemented, extended, renewed or replaced. A form of Swingline Note is attached as Exhibit 2.13-2.

 

“Swingline Sublimit” has the meaning provided in Section 2.01(c).

 

“Swiss Francs” means the lawful currency of Switzerland.

 

“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Trade Date” has the meaning provided in Section 11.06(b)(i).

 

“Trust Indenture Act" has the meaning provided in Section 10.02(d).

 

“Type” means, with respect to any Revolving Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

“UCC” means the Uniform Commercial Code in effect in any applicable jurisdiction from time to time.

 

“United States” or “U.S.” means the United States of America.

 

“Unreallocated Portion” has the meaning provided in Section 2.14(b)(ii).

 

“Unreimbursed Amount” has the meaning provided in Section 2.03(c)(i).

 

“Voting Stock” means, with respect to any Person, securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock or other relevant equity interests has voting power by reason of any contingency) to vote in the election of members of the board of directors of such Person.

 

“Wholly Owned Subsidiary” means, with respect to any direct or indirect Subsidiary of any Person, that one hundred percent (100%) of the Capital Stock with ordinary voting power issued by such Subsidiary (other than directors’ qualifying shares and investments by foreign nationals mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.

 

“Yen” means the lawful currency of Japan.

 

Section 1.02 . Interpretive Provisions.

 

With reference to this Credit Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:

 

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning a nd effect as the word “shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Credit Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Docume nt in its entirety and not to any particular provision thereof, (iv) all references in a Credit Document to “Articles”, “Sections”, “Exhibits” and “Schedules” shall be construed to refer to articles and sections of, and exhibits and schedules to, the Credit Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

(b) 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”.

 

(c) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Credit Agreement or any other Credit Document.

 

Section 1.03 . Accounting Terms and Provisions.

 

Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immed iately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and provided further, that, if the Borrower elects to prepare and maintain its financial statements in accordance with the International Financial Reporting Standards, then (i) the Borrower shall notify the Administrative Agent of such election, (ii) compliance with the financial covenant set forth in Section 8.06 shall continue to be determined by reference to GAAP as in effect prior to such election and (iii) the Borrower shall deliver, together with any Compliance Certificate furnished pursuant to Section 7.02(a) or any other similar document, a reconciliation of its calculations with respect to Section 8.06 to its financial statements prepared in accordance with International Financial Reporting Standards and any other documents and information reasonably requested by the Administrative Agent relating t hereto. Notwithstanding the foregoing, for purposes of determining compliance with the financial covenant set forth in Section 8.06, indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

Section 1.04 . Rounding.

 

Any financial ratios required to be maintained by the Borrower pursuant to this Credit Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.05 . Times of Day.

 

Unless otherwise provided, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

Section 1.06 . Exchange Rates; Currency Equivalents.

 

(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of L/C Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Credit Parties hereunder or calculating the financial covenant hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Equivalent amount as so reasonably determined by the Administrative Agent.

 

(b) Wherever in this Credit Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as reasonably determined by the Administrative Agent.

 

Section 1.07 . Additional Alternative Currencies.

 

(a) The Borrower may from time to time request that Eurocurrency Rate Loans be made or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to (i) the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Revolving Lenders in their sole discretion and (ii) the issuance of Letters of Credit, such request shall be subject to the approv al of the Administrative Agent and the applicable L/C Issuer in their sole discretion.

 

(b) Any such request shall be made to the Administrative Agent not later than 2:00 p.m., ten (10) Business Days prior to the date of the desired Credit Extension (or such earlier time or date as may be agreed by the Administrative Agent, and in the case of any such request with respect to Letters of Credit, the applicable L/C Issuer, in its or their reasonable judgment). In the case of any such request with respect to Revolving Loans, the Administrative Agent shall promptly notify each Revolving Lender thereof; and in the case of any such request with respect to Letters of Credit, the Administrative Agent shall promptly notify the applicable L/C Issuer thereof. Each Revolving Lender (in the case of any such request with respect to Re volving Loans) or the applicable L/C Issuer (in the case of a request with respect to Letters of Credit) shall notify the Administrative Agent, not later than 2:00 p.m. five (5) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

 

(c)           Any failure by a Revolving Lender or the applicable L/C Issuer, as the case may be, to respond to such request within the time period specified in clause (b) above shall be deemed to be a refusal by such Revolving Lender or such L/C Issuer, as the case may be, to permit Revolving Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Revolving Lenders consent to making Revolving Loans in such requested currency, the Administrative Agent shall promptly so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Revolving Loans. If the Administrative Agent and the applicable L/C Issuer consent to the issuance of Letters of Cre dit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes by such L/C Issuer to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by such L/C Issuer. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.07, the Administrative Agent shall promptly so notify the Borrower.

 

Section 1.08 . Change of Currency.

 

(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Credit Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the E uro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

 

(b) Each provision of this Credit Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

(c) Each provision of this Credit Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

 

Section 1.09 . Letter of Credit Amounts.

 

All references herein to the amount of a Letter of Credit shall be deemed to mean the Dollar Equivalent of the amount available to be drawn on such Letter of Credit in effect at such time; provided that for purposes of Sections 2.01(a) and 2.01(b), the Outstanding Amount of L/C Obligations and Revolving Obligations shall include the maximum face amount available to be drawn of each Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at such time.

 

 

 

 

Commitments and Credit Extensions

 

Section 2.01 . Commitments.

 

Subject to the terms and conditions set forth herein:

 

(a) Revolving Loans. During the Commitment Period, each Revolving Lender severally agrees to make revolving credit loans (the “Revolving Loans”) to the Borrower in Dollars or in one or more Alternative Currencies, on any Business Day; provided that after giving effect to any such Revolving Loan, (i) with regard to the Revolving Lenders collectively, the Outstanding Amount of Revolving Obligations shall not exceed TWO BILLION DOLLARS ($2,000,000,000) (as such amount may be increased or decreased in accordance with the provisions hereof, the “Aggregate Revolving Committed Amount”), (ii) with regard to each Revolving Lender individually, such Revolving Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount and (iii) the Outstanding Amount of Revolving Obligations denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Revolving Loans may consist of Base Rate Loans, Eurocurrency Rate Loans or a combination thereof, as the Borrower may request, and may be made in Dollars or in one or more Alternative Currencies, and may be repaid and reborrowed in accordance with the provisions hereof.

 

(b) Letters of Credit. Subject to Section 2.14, during the Commitment Period, (i) each L/C Issuer, in reliance upon the commitments of the Revolving Lenders set forth herein, agrees (A) to issue Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or any member of the Consolidated Group on any Business Day, (B) to amend or extend Letters of Credit previously issued hereunder, and (C) to honor drawings under Letters of Credit issued by it; and (ii) the Revolving Lenders severally agree to purchase from each L/C Issuer a participation interest in Letters of Credit issued by it hereunder in an amount equal to such Revolving Lender’s Revolving Commitment Percentage thereof; provided that (A) the Outstanding Amount of L/C Obligations shall not exceed THREE HUNDRED MILLION DOLLARS ($300,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “L/C Sublimit”), (B) the Outstanding Amount of Revolving Obligations denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit, (C) with regard to the Revolving Lenders collectively, the Outstanding Amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount, (D) with regard to each Revolving Lender individually, such Revolving Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount and (E) with regard to each L/C Issuer individually, the Outstanding Amount of L/C Obli gations with respect to Letters of Credit issued by such L/C Issuer shall not exceed its respective L/C Fronting Sublimit. 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 obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

(c) Swingline Loans. Subject to Section 2.14, during the Commitment Period, the Swingline Lender agrees, in reliance upon the commitments of the other Revolving Lenders set forth herein, to make revolving credit loans (the “Swingline Loans”) to the Borrower on any Business Day; provided that (i) the Outstanding Amount of Swingline Loans shall not exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such amount may be decreased in accordance with the provisions hereof, the “Swingline Sublimit”), (ii) with respect to the Revolving Lenders collectively, the Outstanding Amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed Amount and (iii) with respect to each Revolving Lender individually, such Revolving Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving Committed Amount. Swingline Loans shall be comprised solely of Base Rate Loans denominated in Dollars, and may be repaid and reborrowed in accordance with the provisions hereof. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a participation interest in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Revolving Commitment Percentage thereof.

 

(d) Incremental Revolving Commitments. Any time after the Closing Date, the Borrower may, upon written notice to the Administrative Agent, increase the Aggregate Revolving Commitments hereunder as provided in this Section 2.01(d) (the “Incremental Revolving Commitments”); provided that:

 

(i) the aggregate principal amount of all the Incremental Revolving Commitments established after the Closing Date will not exceed $500,000,000;

 

(ii) no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to any such Incremental Revolving Commitments;

 

(iii) the conditions to the making of a Credit Extension under Section 5.02 shall be satisfied;

 

(iv) the Borrower will provide supporting resolutions, legal opinions, promissory notes and other items as may be reasonably required by the Administrative Agent and the Revolving Lenders providing Incremental Revolving Commitments;

 

(v) any new Revolving Lender providing an Incremental Revolving Commitment must be reasonably acceptable to the Administrative Agent, each of the L/C Issuers, the Swingline Lender and the Borrower;

 

(vi) Revolving Lenders providing Incremental Revolving Commitments pursuant to this Section 2.01(d) will provide a Revolving Lender Joinder Agreement or other agreement reasonably acceptable to the Administrative Agent;

 

(vii) additional Incremental Revolving Commitments will be in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof; and

 

(viii) if any Revolving Loans are outstanding at the time of any such increase, the Borrower will make such payments and adjustments on the Revolving Loans (including payment of any break-funding amounts owing under Section 3.05) as may be necessary to give effect to the revised commitment amounts and percentages.

 

Any Revolving Loans made in connection with the Incremental Revolving Commitments established hereunder shall have terms identical to the Revolving Loans existing on the Closing Date, except for fees payable to Revolving Lenders providing Incremental Revolving Commitments. In connection with the establishment of any Incremental Revolving Commitments, (A) none of CGMI, Barclays Capital, Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBS Securities Inc. and UBS AG, Stamford Branch, as the joint lead arrangers hereunder, shall have any obligation to arrange for or assist in arranging for any Incremental Revolving Commitments without their prior written approval and shall be subject to such conditions, including fee arrangements, as may be provided in connection therewi th, (B) none of the Revolving Lenders, including Citibank and Barclays, shall have any obligation to provide any Incremental Revolving Commitments without their prior written approval and (C) Schedule 2.01(a) will be revised to reflect the Revolving Lenders, Loans, Revolving Commitments and Revolving Commitment Percentages after giving effect to the establishment of any Incremental Revolving Commitments.

 

Section 2.02 . Borrowings, Conversions and Continuations.

 

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone by a Responsible Officer. Each such notice must be received by the Administrative Agent not later than (x) 2:00 p.m. (i) with respect to Eurocurrency Rate Loans denominated in Dollars, three (3) Business Days prior to the requested date of or (ii) with respect to Eurocurrency Rate Loans denominated in an Alternative Currency, four (4) Business Days prior to the requested date of or (y) 12:00 noon with respect to Base Rate Loans on the requested date of, in each case any Borrowing, conversion or c ontinuation. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer. Except as provided in Sections 2.03(c) and 2.04(b), each Borrowing, conversion or continuation shall be in a principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether such request is for a Borrowing, conversion or continuation, (ii) the requested date of such Borrowing, conversion or continuation (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed, converted or continued, (v) if applicable, the duration of the Interest Period with respect thereto, and (vi) the currency of the Loans to be borrowe d or continued. If the Borrower fails to specify a Type of Loan in a Loan Notice, then for all purposes of the Credit Agreement (including Section 3.05), the Borrower shall be deemed to have timely requested that the applicable Loans be made as Base Rate Loans. If the Borrower fails to give a notice requesting a continuation of Eurocurrency Rate Loans by 2:00 p.m. on the third Business Day prior to the last day of the applicable Interest Period, then the Borrower shall be deemed to have timely requested that the applicable Eurocurrency Rate Loans be continued as Eurocurrency Rate Loans denominated in Dollars with an Interest Period of one month; provided, however, that in the case of a failure to timely request a continuation of Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month. An y such automatic conversion shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice, but fails to specify an Interest Period, the Interest Period will be deemed to be one (1) month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.

 

(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Revolving Lender of the amount of its pro rata share (determined in accordance with its respective Revolving Commitment Percentage) of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Revolving Lender of the details of any automatic conversion or continuation described in the preceding subsection. In the case of a Borrowing, each Revolving Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Citibank with the amount of such funds or (ii) wire transfer of such funds, in each case, in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

 

(c) Except as otherwise provided herein, without the consent of the Required Lenders, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of a Default or Event of Default at the request of the Required Lenders, (i) no Loan may be requested as, converted to or continued as a Eurocurrency Rate Loan, (ii) any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency shall be prepaid or redenominated into Dollars in the amount of the Dollar Equivalent thereof and (iii) any outstanding Eurocurrency Rate Loan shall be converted to a Base Rate Loan on the last day of the Interest Period with respect thereto ; provided that, upon the occurrence of an Event of Default, all of the then outstanding Eurocurrency Rate Loans denominated in Australian Dollars and Swedish Kroner shall, without further act of the Administrative Agent or the Revolving Lenders, be prepaid or redenominated into Dollars in the amount of the Dollar Equivalent thereof.

 

(d) The Administrative Agent shall promptly notify the Borrower and the Revolving Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Revolving Lenders of any change in Citibank’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

Section 2.03 . Additional Provisions with Respect to Letters of Credit.

 

(a) Obligation to Issue or Amend.

 

(i) No L/C Issuer shall issue any Letter of Credit if:

 

(A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or

 

(B) the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all the Revolving Lenders have approved such expiry date.

 

(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

 

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall im pose upon such L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date and that such L/C Issuer in good faith deems material to it;

 

(B) the issuance of such Letter of Credit would violate any Law or one or more policies of such L/C Issuer applicable to letters of credit generally;

 

(C) except as otherwise agreed by such L/C Issuer and the Administrative Agent, such Letter of Credit is in an initial stated amount less than $50,000;

 

(D) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;

 

(E) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;

 

(F) except as otherwise agreed by such L/C Issuer, such Letter of Credit contains provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

 

(G) the conditions set forth in Section 5.02 are not satisfied.

 

(iii) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

 

(iv) No L/C Issuer shall be under any obligation to amend any Letter of Credit if:

 

(A) such 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.

 

(b) Procedures for Issuance and Amendment; Auto-Extension Letters of Credit.

 

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a L/C Application, appropriately completed and signed by a Responsible Officer. Such L/C Application, as completed and signed and including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable L/C Issuer, must be received by the applicable L/C Issuer and the Administrative Agent (A) not later than 2:00 p.m. at least one (1) Business Day prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars and (B) not later than 2:00 p.m. at least four (4) Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in an Alternative Currency (or, in each case, such later date and time as the applicable L/C Issuer and the Administrative Agent 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 L/C Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency 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 a s such L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the applicable 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 such L/C Issuer may require. Additionally, the Borrower shall furnish to the applicable 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 such L/C Issuer or the Administrative Agent may require.

 

(ii) Promptly after receipt of any L/C Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such L/C Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from the Administrative Agent, any Revolving Lender or any Credit Party, at least one (1) 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 Article 5 shall not then be satisfied, then, subject to the terms and conditio ns hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or Subsidiary) or enter into the applicable amendment, as the case may be, in each case, in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to such Revolving Lender’s Revolving Commitment Percentage thereof.

 

(iii) If the Borrower so requests in any applicable L/C Application, the applicable 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 any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extensi on Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued (but in any event not later than thirty (30) days prior to the scheduled expiry date thereof). Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A) such 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 o f Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five (5) 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 Revolving Lender or the Borrower that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each case directing such L/C Issuer not to permit such extension.

 

(iv) If the Borrower so requests in any applicable L/C Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non- reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions specified in Section 5.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing such L/C Issuer not to permit such reinstatement.

 

(v) 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 applicable 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.

 

(c) Drawings and Reimbursements; Funding of Participations.

 

(i) Upon any drawing under any Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse such L/C Issuer in such Alternative Currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Borrower will reimburse such L/C I ssuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the Administrative Agent shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 2:00 p.m. on the second Business Day following the date of any payment by such L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the second Business Day following the date of any payment by the applicable L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify each Revo lving Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Revolving Lender’s Revolving Commitment Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed as set forth in Section 2.03(c)(ii) in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02(a) (but subject to the unutilized portion of the Revolving Commitments) for the principal amount of Base Rate Loans. Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) 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.

 

(ii) Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Revolving Commitment Percentage of the Unreimbursed Amount not later than (x) if such notice is received by such Revolving Lender at or prior to 3:00 p.m. on any Business Day, 5:00 p.m. on such Business Day (or such later time and date as shall be specified in such notice) and (y) if such notice is received by such Revolving Lender after 3:00 p.m. on any Business Day, 1:00 p.m. on the Business Day following such Business Day (or such later time and d ate as shall be specified in such notice), whereupon, in either case, subject to the provisions of Section 2.03(c)(iii) and satisfaction of the conditions precedent set forth in Section 5.02, each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars, or if requested by such L/C Issuer, the equivalent amount thereof in an Alternative Currency as reasonably determined by the Administrative Agent at such time on the basis of the Spot Rate (determined as of such funding date) for the purchase of such Alternative Currency with Dollars.

 

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans for any reason (including failure to satisfy the conditions precedent set forth in Section 5.02) and if the Borrower fails to reimburse the applicable L/C Issuer within the time period set forth in Section 2.03(c)(i), the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced which L/C Borrowing shall bear interest at the Default Rate and be due and payable on demand (together with interest thereon). In such event, each Revolving Lender’s payment to the Administrative Agent for the account o f the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv) If the L/C Issuer shall fund any drawing under a Letter of Credit, then, unless the Borrower shall reimburse such amount in full on the date such payment is made, the unpaid amount thereof shall bear interest, for each day from and including the date such payment is made to but excluding the date that the Borrower reimburses such amount (or such amount is refinanced with an L/C Advance or a Base Rate Loan as contemplated by foregoing clauses (ii) and (iii)).  Until a Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Revolving LenderR 17;s Revolving Commitment Percentage of such amount shall be solely for the account of such L/C Issuer.

 

(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, (C) with respect to funding participations in L/C Borrowings, non-compliance with the conditions set forth in Section 5.02, or (D ) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that such L/C Issuer shall have complied with the provisions of Section 2.03(b)(ii). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi) If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Revolving 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 such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect as reasonably de termined by such L/C Issuer.

 

(d) Repayment of Participations.

 

(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such 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 Revolving Lender its Revolving Commitment Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the per iod of time during which such Revolving Lender’s L/C Advance was outstanding) in Dollars and in the same type of funds as those received by the Administrative Agent.

 

(ii) If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Revolving 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 Revolving Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Credit Agreement.

 

(e) Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Credit Agreement under all circumstances, including the following:

 

(i) any lack of validity or enforceability of such Letter of Credit, this Credit Agreement or any other Credit Document;

 

(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Credit Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

(iv) any payment by such L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

 

(v) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally; or

 

(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.

 

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to such Borrower and, in the event of any claim of non-compliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.

 

(f) Role of the L/C Issuers in such Capacity. Each Revolving Lender and the Borrower agrees that, in paying any drawing under a Letter of Credit, the applicable 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 Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Revolving Lender for (i) a ny action taken or omitted in connection herewith at the request or with the approval of the Revolving 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 such Borrower’s 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 the Borrower may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against any L/C Issuer, and such 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 that the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such 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, each 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 such 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, that may prove to be invalid or ineffective for any reason.

 

(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if any L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the date of such L/C Borrowing or the L/C Expiration Date, as the case may be). The Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations. The Borrower hereby grants to the Administrative Agent, for the benefit of the applicable L/C Issuer and the Revolving Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash collateral shall be maintained in blocked, interest bearing deposit accounts or money market fund accounts at the Administrative Agent.

 

(h) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.

 

(i) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, any Subsidiary of the Borrower, the Borrower shall be obligated to reimburse the applicable L/C Issuer for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of the Borrower’s Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

(j) Letter of Credit Fees. The Borrower shall pay Letter of Credit fees as set forth in Section 2.09(b)(i).

 

(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

(l) Letter of Credit Reports. To the extent any Letters of Credit issued by an L/C Issuer are outstanding, such L/C Issuer shall furnish to the Administrative Agent (which shall furnish to each Revolving Lender (with a copy to the Borrower)) on the first Business Day of each month (A) a written report summarizing issuance and expiration dates of Letters of Credit issued by such L/C Issuer during the preceding month and drawings during such month under all such Letters of Credit and (B) a written report setting forth the average daily aggregate face amount during the preceding calendar quarter of all Letters of Credit issued by such L/C Issuer.

 

Section 2.04 . Additional Provisions with Respect to Swingline Loans.

 

(a) Borrowing Procedures. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by telephone by a Responsible Officer. Each such notice must be received by the Swingline Lender and the Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a written Loan Notice, appropriately c ompleted and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swingline Lender of any telephonic Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 2:30 p.m. on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in this Article 2, or (B) that one or more of the applicable conditions specified in Article 5 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will, not later than 3:00 p.m. on the borrowing date specified in such Loan Notice, make the amount of its Swingline Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swingline Lender in immediately available funds.

 

(b) Refinancing.

 

(i) The Swingline Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Revolving Loan that is a Base Rate Loan in an amount equal to such Revolving Lender’s Revolving Commitment Percentage of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, the unutilized portion of the Aggreg ate Revolving Commitments or the conditions set forth in Section 5.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Revolving Commitment Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 2:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(b)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.

 

(ii) If for any reason any Swingline Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.04(b)(i), the request for Revolving Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(b)(i) shall be deemed payment in respect of such participation.

 

(iii) If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(b) by the time specified in Section 2.04(b)(i), the Swingline Lender shall be entitled to recover from such Revolving 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 Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Sw ingline Lender in accordance with banking industry rules on interbank compensation. A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

(iv) Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(b) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, (C) non-compliance with the conditions set forth in Section 5.02, or (D) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that the Swingline Lender has complied with the provisions of Section 2.04(a). No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.

 

(c) Repayment of Participations.

 

(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Revolving Commitment Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s risk participation was funded) in the same funds as those received by the Swingline Lender.

 

(ii) If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Revolving 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 reque st of the Swingline Lender. The obligations of the Revolving Lenders under this clause (ii) shall survive the payment in full of the Obligations and the termination of this Credit Agreement.

 

(d) Interest for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving Lender funds its Revolving Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Revolving Commitment Percentage of any Swingline Loan, interest in respect thereof shall be solely for the account of the Swingline Lender.

 

(e) Payments Directly to Swingline Lender. The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.

 

Section 2.05 . Repayment of Loans.

 

(a) Revolving Loans. The Borrower shall repay to the Revolving Lenders the Outstanding Amount of Revolving Loans on the Revolving Termination Date.

 

(b) Swingline Loans. The Borrower shall repay to the Swingline Lender the Outstanding Amount of the Swingline Loans on the earlier to occur of (i) the date of demand by the Swingline Lender and (ii) the Revolving Termination Date.

 

Section 2.06 . Prepayments.

 

(a) Voluntary Prepayments. The Loans may be repaid in whole or in part without premium or penalty (except, in the case of Loans other than Base Rate Loans, amounts payable pursuant to Section 3.05 and as otherwise provided for herein); provided that:

 

(i) in the case of Loans other than Swingline Loans, (A) notice thereof must be received by 2:00 p.m. by the Administrative Agent on the date of prepayment and (B) any such prepayment shall be a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof or, if less, the entire remaining principal amount thereof; and

 

(ii) in the case of Swingline Loans, (A) notice thereof must be received by the Swingline Lender by 2:00 p.m. on the date of prepayment (with a copy to the Administrative Agent), and (B) any such prepayment shall be in the same minimum principal amounts as for advances thereof (or any lesser amount that may be acceptable to the Swingline Lender).

 

Each such notice of voluntary prepayment hereunder shall be irrevocable and shall specify the date and amount of prepayment and the Loans and Types of Loans that are being prepaid. The Administrative Agent will give prompt notice to each applicable Revolving Lender of any prepayment on the Loans and such Revolving Lender’s interest therein. Prepayments of Eurocurrency Rate Loans hereunder shall be accompanied by accrued interest on the amount prepaid and breakage or other amounts due, if any, under Section 3.05.

 

(b) Mandatory Prepayments.

 

(i) If at any time (A) the Outstanding Amount of Revolving Obligations shall exceed the Aggregate Revolving Committed Amount, (B) the Outstanding Amount of L/C Obligations shall exceed the L/C Sublimit, or (C) the Outstanding Amount of Swingline Loans shall exceed the Swingline Sublimit, the Borrower shall immediately prepay the Revolving Obligations (including Cash Collateralizing the L/C Obligations) in an amount equal to such excess; provided, however, that, except with respect to clause (ii), L/C Obligations will not be Cash Collateralized hereunder until the Revolving Loans and Swingline Loans have been paid in full .

 

(ii) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Revolving Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within three (3) Business Days after receipt of such notice, the Borrower shall prepay the Revolving Obligations (including Cash Collateralizing the L/C Obligations) denominated in Alternative Currencies in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time and from time to time after the initial prepayment or deposit of such Cash Collateral, request that additional Revolving Obligations be repaid and additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.

 

(iii) If there occurs any Change of Control with respect to the Borrower, then within five (5) Business Days of such Change of Control, the Borrower shall (A) prepay the then Outstanding Amount of the Revolving Loans and the Swingline Loans, (B) Cash Collateralize the then Outstanding Amount of all L/C Obligations and (C) pay all accrued and unpaid interest and fees hereunder.

 

(c) Application. Within each Loan, prepayments will be applied first to Base Rate Loans, then to Eurocurrency Rate Loans in direct order of Interest Period maturities. Prepayments on the Revolving Obligations will be paid by the Administrative Agent to the Revolving Lenders ratably in accordance with their respective interests therein.

 

Section 2.07 . Termination or Reduction of Revolving Commitments.

 

(a) The Revolving Commitments hereunder may be permanently reduced in whole or in part by notice from the Borrower to the Administrative Agent; provided that (i) any such notice thereof must be received by 2:00 p.m. on the Business Day of the date of reduction or termination and any such prepayment shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof and (ii) the Revolving Commitments may not be reduced to an amount less than the Revolving Obligations then outstanding thereunder. The Administrative Agent will give prompt notice to the Revolving Lenders of any such reduction in Revolving Commitments. Any reduction of the Ag gregate Revolving Commitments shall be applied ratably to the commitment of each Revolving Lender according to its Revolving Commitment Percentage thereof. All commitment or other fees accrued with respect thereto through the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.

 

(b) If there occurs any Change of Control with respect to the Borrower, the Revolving Commitments shall terminate on the date that is five (5) Business Days after the date of such Change of Control and the Borrower shall pay all accrued and unpaid interest and fees hereunder.

 

Section 2.08 . Interest.

 

(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Percentage; (ii) each Loan that is a Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Percentage; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Percentage.

 

(b)  (i)           If any amount of principal of any Revolving Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.

 

(ii) If any amount (other than principal of any Revolving Loan) payable by the Borrower under any Credit Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.

 

(iii) Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Revolving Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Law.

 

(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c) Interest on each Revolving Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

Section 2.09 . Fees.

 

(a) Commitment Fee. Subject to Section 2.14(d), the Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Revolving Commitment Percentage thereof, a commitment fee (the “Commitment Fee”) equal to the Applicable Percentage of the actual daily amount by which the Aggregate Revolving Committed Amount exceeds the sum of (i) the Outstanding Amount of Revolving Loans plus (ii) the Outstanding Amount of L/C Obligations. The Commitment Fee shall accrue at all times during the Com mitment Period, including at any time during which one or more of the conditions in Article 5 is not met, and shall be due and payable quarterly in arrears on the last day of each of March, June, September and December (for the Commitment Fee accrued during the previous calendar quarter), commencing with the first such date to occur after the Closing Date, and on the Revolving Termination Date. The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Percentage during any quarter, the actual daily unused amount shall be computed and multiplied by the Applicable Percentage separately for each period during such quarter that such Applicable Percentage was in effect. For purposes hereof, Swingline Loans shall not be counted toward or be considered as usage of the Aggregate Revolving Committed Amount.

 

(b) Letter of Credit Fees.

 

(i) Letter of Credit Fees. Subject to Section 2.14(d), the Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Revolving Commitment Percentage, a Letter of Credit fee, in Dollars, for each Letter of Credit, an amount equal to the Applicable Percentage multiplied by the daily stated amount available to be drawn under such Letter of Credit on such day (the “Letter of Credit Fees”). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determin ed in accordance with Section 1.09. The Letter of Credit Fees shall be computed on a quarterly basis in arrears, and shall be due and payable on the last day of each of March, June, September and December (for the Letter of Credit Fees accrued during the previous calendar quarter), commencing with the first such date to occur after the issuance of such Letter of Credit and on the L/C Expiration Date and thereafter on demand. If there is any change in the Applicable Percentage during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Percentage separately for each period during such quarter that such Applicable Percentage was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

 

(ii) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee at a rate per annum to be agreed by the Borrower and such L/C Issuer, computed on the daily stated amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the last day of each of March, June, September and December (for fronting fees accrued during the previous calendar quarter or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit and on the L/C Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other documentary and processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

(c) Other Fees.

 

(i) The Borrower shall pay to Citibank, CGMI and Barclays, for their own respective accounts, fees in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

(ii) The Borrower shall pay to the Revolving Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

Section 2.10 . Computation of Interest and Fees.

 

All computations of interest for Base Rate Loans when the Base Rate is determined by Citibank’s prime rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year or, in the case of interest in respect of Eurocurrency Rate Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one (1) day.

 

Section 2.11 . Payments Generally; Administrative Agent’s Clawback.

 

(a) General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the Revolving Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrower with respect to principal a nd interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the Revolving Lenders to which such payment is owed, at the Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent to the Borrower (of which the Borrower shall have received at least three (3) Business Days’ advance notice) on the dates specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent as of the applicable Revaluation Date of such Alternative Currency payment. The Administrative Agent will promptly distribute to each Revolving Lender its pro rata share of such payment in like funds as received by wire transfer to such Revolving Lender’s Lending Office. All payments received by the Administrative Agent (i) a fter 2:00 p.m. in the case of payments in Dollars or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in each case be deemed received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of “Interest Period”, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

(b) (i)             Funding by Revolving Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Revolving Lender prior to the proposed date (in the case of Eurocurrency Rate Loans) or 90 minutes prior to the proposed time (in the case of Base Rate Loans) of any Borrowing that such Revolving Lender will not make available to the Administrative Agent such Revolving Lender’s share of such Borrowing, the Administrative Agent may assume that such Revolving Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Revolving Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Revolving 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 Revolving 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 such Borrowing. If the Borrower and such Revolving L ender 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 Revolving Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Revolving Lender’s Loan included in such Borrowing, and to the extent such amount has not been paid to the Borrower, the Administrative Agent will transmit such amount to the Borrower in Same Day Funds. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Revolving Lender that shall have failed to make such payment to the Administrative Agent.

 

(ii) Payments by Borrower; Presumptions by Administrative Agent. 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 Revolving Lenders or any L/C Issuer 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 Revolving Lenders or such 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 Revolving Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Revolving Lender or such L/C Issuer, in Same Day 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.

 

(c) Failure to Satisfy Conditions Precedent. If any Revolving Lender makes available to the Administrative Agent funds for any Loan to be made by such Revolving Lender as provided in the foregoing provisions of this Article 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 5 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Revolving Lender) to such Revolving Lender, without interest.

 

(d) Obligation of the Revolving Lenders Several. The obligations of the Revolving Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Revolving Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Revolving Lender of its corresponding obligation to do so on such date, and no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make its Loan, to purchase its participation or to make its payment under Section 11.04(c).

 

(e) Funding Source. Nothing herein shall be deemed to obligate any Revolving Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Revolving Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

Section 2.12 . Sharing of Payments by Revolving Lenders. If any Revolving Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, interest on or fees in respect of any of the Loans made by it or Revolving Commitments held by it, or the participations in L/C Obligations or in Swingline Loans held by it resulting in such Revolving Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest and fees thereon greater than its pro rata share thereof as provided herein, then the Revolving Le nder receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline Loans of the other Revolving Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Revolving Lenders ratably in accordance with the aggregate amount of principal of and accrued interest and fees on their respective Loans and Revolving Commitments and other amounts owing them, provided that:

 

(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii) the provisions of this Section 2.12 shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Credit Agreement or (y) any payment obtained by a Revolving Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.12 shall apply).

 

Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Revolving Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Revolving Lender were a direct creditor of such Credit Party in the amount of such participation.

 

Section 2.13 . Evidence of Debt.

 

(a) The Credit Extensions made by each Revolving Lender shall be evidenced by one or more accounts or records maintained by such Revolving Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f. 103-1(c) as agent for the Borrower, in each case, in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Revolving Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Revolving 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 o bligation 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 Revolving 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 Revolving Lender made through the Administrative Agent, the Borrower shall execute and deliver to the Administrative Agent a Note for such Revolving Lender, which shall evidence such Revolving Lender’s Loans in addition to such accounts or records. Each Revolving Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(b) In addition to the accounts and records referred to in subsection (a) above, each Revolving Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Revolving Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Revolving Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

(c) Each Revolving Lender having sold a participation in any of its Obligations, acting solely for this purpose as agent for the Borrower, shall maintain a register for the recordation of the names and addresses of such Participants (and each change thereto, whether by assignment or otherwise) and the rights, interest or obligation of such Participants in any Obligation, in any Revolving Commitment and in any right to receive any payments hereunder; provided that no Revolving Lender shall have any obligation to disclose all or any portion of such register to any Person (including the identity of any Participant or any information relating to a Participant's interest in any Revolving Commitments, Loans or its other obligations under a ny Credit Document) except to the extent that such disclosure is necessary to establish that such Revolving Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.

 

Section 2.14 . Defaulting Lenders.

 

(a) Cash Collateral Call. If any Revolving Lender becomes, and during the period it remains, a Defaulting Lender, if any Letter of Credit or Swingline Loan is at the time outstanding, the applicable L/C Issuer and the Swingline Lender, as the case may be, may (except, in the case of a Defaulting Lender, to the extent the Revolving Commitments have been fully reallocated pursuant to Section 2.14(b)), by notice to the Borrower and such Defaulting Lender through the Administrative Agent, require the Borrower to Cash Collateralize the obligations of the Borrower to such L/C Issuer or the Swingline Lender in respect of such Letter of Credit or Swingline Loan in amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender in respect thereof, or to make other arrangements satisfactory to the Administrative Agent, and to such L/C Issuer or the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender.

 

(b) Defaulting Lender Exposure. If a Revolving Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to the Defaulting Lender Exposure of such Defaulting Lender:

 

(i) the Defaulting Lender Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Revolving Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Commitment Percentage of the Revolving Obligations may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) ne ither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, any L/C Issuer, the Swingline Lender or any other Revolving Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;

 

(ii) to the extent that any portion (the “Unreallocated Portion”) of the Defaulting Lender’s Defaulting Lender Exposure cannot be so reallocated, whether by reason of the proviso in clause (i) above or otherwise, the Borrower will, not later than three (3) Business Days after demand by the Administrative Agent (at the direction of the applicable L/C Issuer and/or the Swingline Lender, as the case may be), (A) Cash Collateralize the obligations of the Borrower to such L/C Issuer and the Swingline Lender in respect of such Defaulting Lender Exposure in an amount at least equal to the aggregate amount of the u nreallocated portion of such Defaulting Lender Exposure, (B) in the case of the Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline Loans, prepay (subject to clause (iii) below) in full the unreallocated portion thereof or (C) make other arrangements satisfactory to the Administrative Agent, and to the applicable L/C Issuer or the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender (it is understood and agreed that the L/C Issuers and the Swingline Lender shall be under no obligation to issue or amend Letters of Credit or make additional Swingline Loans during such three (3) Business Day period unless the Borrower shall have satisfied its obligations pursuant to this clause (ii) or the applicable Defaulting Lender shall cease to be a Defaulting Lender in accordance with the terms hereof; and

 

(iii) any amount paid by the Borrower for the account of a Defaulting Lender under this Credit Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.14(c)) the termination of the Revolving Commitments and payment in full of all Obligations of the Borrower hereunder, and will be applied by the Administrative Agent, to the fullest extent permitted by Law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Credit Agreement, second to the payment of any amounts owing by such Defaulting Lender to the L/C Issuers and the Swingline Lender (pro rata as to the respective amounts owing to each of them) under this Credit Agreement, third to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal and unreimbursed L/C Advances then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders and seventh after the termination of the Revolving Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Credit Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.

 

(c) Change in Status. If the Borrower, the Administrative Agent, the L/C Issuers and the Swingline Lender agree in writing in their discretion that a Revolving Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.14(b)), such Revolving Lender will, to the extent applicable, purchase such portion of outstanding Loans of the other Re volving Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Obligations to be held by each Revolving Lender in accordance with its Revolving Commitment Percentage, whereupon such Revolving Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and each Revolving Lender’s risk participations in L/C Obligations and Swingline Loans will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to No n-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.

 

(d) Fees. Anything herein to the contrary notwithstanding, during such period as a Revolving Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Section 2.09(a) or (b) (without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees); provided that (a) to the extent that a portion of the Defaulting Lender Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.14(b), such fees that would have accr ued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments and (b) to the extent any portion of such Defaulting Lender Exposure cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the L/C Issuers and the Swingline Lender as their interests appear (and the pro rata payment provisions of Section 2.11 will automatically be deemed adjusted to reflect the provisions of this Section 2.14(d).

 

 

 

 

Taxes, Yield Protection and Illegality

 

Section 3.01 . Taxes.

 

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Credit Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the Borrower, or the Administrative Agent, as the case may be, shall be required by applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable by the Borrower shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.01(a)) the Administrative Agent, any Revolving Lender or any L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower, or the Administrative Agent, as the case may be, shall make such deductions and (iii) the Borrower, or the Administrative Agent, as the case may be, shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law. To the extent that amounts are so deducted and paid over to the appropriate Governmental Authority by the Borrower, or the Administrative Agent, as the case may be, such deducted amounts shall be treated for all purposes of this Credit Agreement as having been paid to the Administrative Agent, such Revolving Lender or such L/C Issuer, as the case may be, with respect to which the relevant deduction was made. If the Administrative Agent, any Revolving Lender or any L/C Issuer is entitled to any paym ent under this subsection (a) due to a Change in Law, such party shall provide notice to the Administrative Agent and the Borrower to the effect thereof, provided that the failure to give such notice shall not affect the right to payment for such party.

 

(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law.

 

(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent, each Revolving Lender and each L/C Issuer, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable by the Borrower under this Section 3.01(c)) paid by the Administrative Agent, such Revolving Lender or such L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto (other than any penalty imposed as a result of any gross negligence or unlawful mis conduct of the Administrative Agent, such Revolving Lender or such L/C Issuer, as the case may be), whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Revolving Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Revolving Lender or an L/C Issuer, shall be conclusive absent manifest error; provided that promptly following written request therefor, any such Revolving Lender or L/C Issuer or the Administrative Agent shall deliver a statement to the Borrower setting forth in reasonable detail the basis for amount set forth in such certificate.

 

Each Revolving Lender and each L/C Issuer shall severally indemnify the Administrative Agent, within ten (10) days after written demand therefor, for the full amount of any Taxes attributable to such Revolving Lender or such L/C Issuer that are payable or paid by the Administrative Agent, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Revolving Lender or such L/C Issuer by the Administrative Agent shall be conclusive absent manifest error.

 

(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholdin g. In addition, any Revolving Lender or L/C Issuer, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Revolving Lender is subject to withholding or information reporting requirements.

 

Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Revolving Lender under this Credit Agreement, on or prior to the date on which any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally able to do so), whichever of the following is applicable:

 

(i) duly completed and signed copies of IRS Form W-8BEN (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party,

 

(ii) duly completed and signed copies of IRS Form W-8ECI (or successor form),

 

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed and signed copies of IRS Form W-8BEN (or successor form), or

 

(iv) any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed and signed together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower to determine the withholding or deduction required to be made.

 

Any Revolving Lender or L/C Issuer that is a United States person under Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Revolving Lender or L/C Issuer becomes a Revolving Lender or L/C Issuer, as applicable, under this Credit Agreement, on or prior to the date on which any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Revolving Lender or L/C Issuer is legally able to do so), duly completed and signed copies of Internal Revenue Service Form W-9 (or any successor form) certifying that such Revolving Lender or L/C Issuer is entitled to an exemption from U.S. backup withholding tax.

 

(f) Treatment of Certain Refunds. If the Administrative Agent, any Revolving Lender or any L/C Issuer determines in good faith that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of, and any loss or gain realized in the conversion of such funds from or to another currency incurred by, the Administrative Agent, such Revolving Lender or such L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, such Revolving Lender or such L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Revolving Lender or such L/C Issuer in the event the Administrative Agent, such Revolving Lender or such L/C Issuer is required to repay such refund to such Governmental Authority. This subsection (f) shall not be construed to require the Admini strative Agent, any Revolving Lender or any L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

 

Section 3.02 . Illegality.

 

If any Revolving Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Revolving Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Revolving Lender to purchase or sell, or to take deposits of, (i) Dollars or any Alternative Currency other than Euro in the London interbank market or (ii) Euro in the European interbank market, then, in either case, on notice thereof by such Revolving Lender to the Borrower through the Administrative Agent, any obligation of such Revolving Lender to make or continue E urocurrency Rate Loans in the affected currency or currencies or to convert Loans that are Base Rate Loans to Eurocurrency Rate Loans shall be suspended until such Revolving Lender notifies the Administrative Agent and the Borrower in the affected currency or currencies that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Revolving Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all such Eurocurrency Rate Loans of such Revolving Lender in the affected currency or currencies to Base Rate Loans, either on the last day of the Interest Period therefor, if such Revolving Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Revolving Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

Section 3.03 . Inability to Determine Rates.

 

If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in the London or European interbank market, as the case may be, for the applicable currency, amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to such Eurocurrency Rate Loan or (c) the Eurocurrency Rate for any requested Interest Period with respect to such Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Revolving Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Revolv ing Lender. Thereafter, the obligation of the Revolving Lenders to make or maintain such Eurocurrency Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of such Eurocurrency Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Loans that are Base Rate Loans in the amount specified therein.

 

Section 3.04 . Increased Cost; Capital Adequacy.

 

(a) Increased Costs Generally. If any Change in Law shall:

 

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Revolving Lender (except any reserve requirement reflected in the Eurocurrency Rate) or any L/C Issuer; or

 

(ii) impose on any Revolving Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Credit Agreement or Eurocurrency Rate Loans made by such Revolving Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Revolving Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Revolving Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Revolving Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Revolving Lender or such L/C Issuer, the Borrower will pay to such Revolving Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Revolving Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered. For the avoidance of doubt, this Section 3.04(a) shall not apply with respect to Taxes that are subject to, or excluded from Section 3.01.

 

(b) Capital Requirements. If any Revolving Lender or any L/C Issuer determines that any Change in Law affecting such Revolving Lender or such L/C Issuer or any Lending Office of such Revolving Lender or such Revolving Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Revolving Lender’s or such L/C Issuer’s capital or on the capital of such Revolving Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Credit Agreement, Revolving Commitments of such Revolving Lender or the Loans made by, or participations in Letters of Credit held by, such Revolving Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Revolving Lender or such L/C Issuer or such Revolving Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Revolving Lender’s or such L/C Issuer’s policies and the policies of such Revolving Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Revolving Lender or such L/C Issuer, as the case may be, such additional amount or amounts, as determined in good faith, as will compensate such Revolving Lender or such L/C Issuer or such Revolving Lender’s or such L/C Issuer’s holding company for any such reduction suffered.

 

(c) Certificates for Reimbursement. A certificate of a Revolving Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Revolving Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsections (a) or (b) of this Section 3.04 shall be delivered to the Borrower. The Borrower shall pay such Revolving Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

(d) Delay in Requests. Failure or delay on the part of any Revolving Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Revolving Lender’s or such L/C Issuer’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Revolving Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Revolv ing Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Revolving Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

Section 3.05 . Compensation for Losses.

 

Upon demand of any Revolving Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Revolving Lender for and hold such Revolving Lender harmless from any reasonable loss, cost or expense incurred by it as a result of:

 

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

 

(b) any failure by the Borrower (for a reason other than the failure of such Revolving Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

 

(c) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13; or

 

(d)           any payment by the Borrower of the principal of or interest on any Revolving Loan or of any drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency in a different currency from the Alternative Currency in which the applicable Loan or Letter of Credit is denominated (except to the extent the applicable L/C Issuer has required payment of any drawing under a Letter of Credit in Dollars pursuant to Section 2.03(c)(i)(A));

 

including any reasonable loss or expense (including foreign exchange losses) arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Borrower shall also pay any customary and reasonable administrative fees charged by such Revolving Lender in connection with the foregoing.

 

For purposes of calculating amounts payable by the Borrower to the Revolving Lenders under this Section 3.05, each Revolving Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London or European interbank market, as the case may be, for a comparable amount in such currency for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.

 

Section 3.06 . Mitigation Obligations; Replacement of Lenders.

 

(a) Designation of a Different Lending Office. If any Revolving Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Revolving Lender or any Governmental Authority for the account of any Revolving Lender pursuant to Section 3.01, or if any Revolving Lender gives a notice pursuant to Section 3.02, then such Revolving Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if , in the judgment of such Revolving Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Revolving Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Revolving Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Revolving Lender in connection with any such designation or assignment.

 

(b) Replacement of Lenders. If any Revolving Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Revolving Lender or any Governmental Authority for the account of any Revolving Lender pursuant to Section 3.01, the Borrower may replace such Revolving Lender in accordance with Section 11.13.

 

(c) Limitation on Additional Amounts, etc. Notwithstanding anything to the contrary contained in this Article 3 of this Credit Agreement, unless a Revolving Lender gives notice to the Borrower that it is obligated to pay an amount under this Article 3 within six (6) months after the later of (i) the date the Revolving Lender incurs the respective increased costs, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital or (ii) the date such Revolving Lender has actual knowledge of its incurrence of the respective increased costs, loss, expense or liability, reductions in amounts received or receivable or reduction in return on capital, then such Revolving Lender shall only be entitled to be compensated for such amount by the Borrower pursuant to this Article 3, to the extent of the costs, loss, expense or liability, reduction in amounts received or receivable or reduction in return on capital that are incurred or suffered on or after the date which occurs six (6) months prior to such Revolving Lender giving notice to the Borrower that it is obligated to pay the respective amounts pursuant to this Article 3.

 

Section 3.07 . Survival Losses.

 

All of the Borrower’s obligations under this Article 3 shall survive termination of the Aggregate Revolving Commitments and repayment of all other Obligations hereunder.

 

 

 

 

Guaranty

 

Section 4.01 . The Guaranty.

 

(a) Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent and each of the holders of the Obligations, as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations (the “Guaranteed Obligations”) in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralizat ion or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal.

 

(b) Notwithstanding any provision to the contrary contained herein, in any other of the Credit Documents, or other documents relating to the Guaranteed Obligations, the obligations of each Guarantor under this Credit Agreement and the other Credit Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law.

 

Section 4.02 . Obligations Unconditional.

 

The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Credit Documents or other documents relating to the Guaranteed Obligations, or any substitution, compromise, release, impairment or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guaran tor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this Article 4 until such time as the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto have expired or been terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

 

(a) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

(b) any of the acts mentioned in any of the provisions of any of the Credit Documents, or other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to therein shall be done or omitted;

 

(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Credit Documents or other documents relating to the Guaranteed Obligations, or any other agreement or instrument referred to therein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

 

(d) any Lien granted to, or in favor of, the Administrative Agent or any of the holders of the Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail to attach or be perfected; or

 

(e) any of the Guaranteed Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).

 

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest, notice of acceptance of the guaranty given hereby and of extensions of credit that may constitute obligations guaranteed hereby, notices of amendments, waivers and supplements to the Credit Documents and other documents relating to the Guaranteed Obligations, or the compromise, release or exchange of collateral or security, and all notices whatsoever, and any requirement that the Administrative Agent or any holder of the Guaranteed Obligations exhaust any right, power or remedy or proceed against any Person under any of the Credit Documents or any other documents relating to the Guaranteed Obligations or any other agreement or instrument referred to therein, or against any other Person under any other guar antee of, or security for, any of the Guaranteed Obligations.

 

Section 4.03 . Reinstatement.

 

Neither the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release or limitation of the liability of the Borrower, by reason of the Borrower’s bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the Guaranteed Obligations. The obligations of the Guarantors under this Article 4 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings pursuant to any Debtor Relief Law or otherwis e, and each Guarantor agrees that it will indemnify the Administrative Agent and each holder of Guaranteed Obligations on demand for all reasonable costs and expenses (including all reasonable fees, expenses and disbursements of any law firm or other counsel) incurred by the Administrative Agent or such holder of Guaranteed Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.

 

Section 4.04 . Certain Waivers.

 

Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the necessity at any time of having to take recourse against the Borrower hereunder or against any collateral securing the Guaranteed Obligations or otherwise, (b) it will not assert any right to require the action first be taken against the Borrower or any other Person (including any co-guarantor) or pursuit of any other remedy or enforcement any other right and (c) nothing contained herein shall prevent or limit action being taken against the Borrowe r hereunder, under the other Credit Documents or the other documents and agreements relating to the Guaranteed Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other rights or remedies available in respect thereof, if neither the Borrower nor the Guarantors shall timely perform their obligations, and the exercise of any such rights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, the Guaranteed Obligations shall have been indefeasibly paid in full and the commitments relating thereto shall have expired or been terminated, it being the purpose and intent that the Guarantors’ obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances.

 

Section 4.05 . Remedies.

 

The Guarantors agree that, to the fullest extent permitted by Law, as between the Guarantors, on the one hand, and the Administrative Agent and the holders of the Guaranteed Obligations, on the other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9.02) for purposes of Section 4.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Guaranteed Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed to have become automat ically due and payable), the Guaranteed Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01.

 

Section 4.06 . Rights of Contribution.

 

The Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Guarantor shall have a right of contribution from each other Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated, and none of the Guarantors shall exercise any such contribution rights until the Guaranteed Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated.

 

Section 4.07 . Guaranty of Payment; Continuing Guaranty.

 

The guarantee in this Article 4 is a guaranty of payment and not of collection, and is a continuing guarantee, shall apply to all Guaranteed Obligations whenever arising and, subject to the terms of this Article 4, is irrevocable and shall remain in full force and effect until the Guaranteed Obligations are paid in full and the Revolving Commitments are terminated.

 

Section 4.08 . Release.

 

A Guarantor shall be released and relieved of its obligations under the guaranty set forth in this Article 4 if no Default or Event of Default shall have occurred and be continuing (or would exist after giving effect to such release) and such Guarantor is concurrently released from its guarantees under all of the Existing Senior Notes and any Additional Notes then outstanding. In connection with the release of any Guarantor, the Administrative Agent shall execute and deliver any documents reasonably required by the Borrower to evidence the release of such Guarantor from its obligations under the guaranty set forth in this Article 4, subject to receipt by the Administrative Agent from the Borrower of a certification as to matters set forth in the preceding sentence, upon which the Administrative Agent shall be entitled to rely.