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8-K - FORM 8-K - Willbros Group, Inc.\NEW\d434387d8k.htm
EX-4 - FIFTH SUPPLEMENTAL INDENTURE - Willbros Group, Inc.\NEW\d434387dex4.htm

Exhibit 10

Execution Version

This AMENDMENT AND RESTATEMENT AGREEMENT dated as of November 8, 2012, and effective as of the Restatement Effective Date (as defined below) (this “Amendment and Restatement Agreement”), to the Credit Agreement dated as of June 30, 2010, by and among Willbros United States Holdings, Inc., as Borrower, Willbros Group, Inc. and certain Subsidiaries thereof, as Guarantors, the Lenders from time to time party thereto, Crédit Agricole Corporate and Investment Bank, as Administrative Agent, Collateral Agent, and Issuing Bank, UBS Securities, LLC, as Syndication Agent, and Natixis, The Bank of Nova Scotia and Capital One, N.A., as Co-Documentation Agents, as amended by Amendment No. 1 to Credit Agreement, dated as of March 4, 2011, and Amendment No. 2 to Credit Agreement, dated as of March 19, 2012 (as so amended, the “Existing Credit Agreement”). Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Amended and Restated Credit Agreement (as defined below) or, in the case of capitalized terms that are expressly used by reference to the Existing Credit Agreement, the Existing Credit Agreement.

INTRODUCTION

A. The Borrower has requested each Revolving Lender under the Existing Credit Agreement to extend the final maturity date that would otherwise apply to such Revolving Lender’s Revolving Commitment and extensions of credit thereunder, and each Revolving Lender under the Existing Credit Agreement whose name is set forth on Schedule 2.01 to the Amended and Restated Credit Agreement under the heading “Extending Revolving Lenders” (such Revolving Lenders under the Existing Credit Agreement being collectively referred to as the “Extending Revolving Lenders”) has agreed, subject to the terms and conditions set forth herein, so to extend such final maturity date in respect of the principal amount of such Revolving Lender’s Revolving Commitment set forth on such Schedule 2.01 opposite the name of such Revolving Lender as its Extended Revolving Commitment (such Revolving Commitments being collectively referred to as the “Extended Revolving Commitments”);

B. The Borrower has requested the making of Incremental Term Loans in an aggregate principal amount equal to $60,000,000, and each Person that is indicated on Schedule 2.01 to the Amended and Restated Credit Agreement as having an Incremental Term Commitment (such Persons being collectively referred to as the “Incremental Term Lenders”) has agreed, subject to the terms and conditions set forth herein and in the Amended and Restated Credit Agreement, to make an Incremental Term Loan to the Borrower on the Restatement Effective Date in an amount not to exceed the amount set forth on such Schedule 2.01 opposite the name of such Incremental Term Lender as its Incremental Term Commitment; and

C. The Borrower desires and has requested, and the other parties hereto have agreed, to amend and restate the Existing Credit Agreement in its entirety to be in the form of Annex A hereto (the Existing Credit Agreement, as so amended and restated, being referred to as the “Amended and Restated Credit Agreement”) and further to modify certain Schedules and Exhibits to the Existing Credit Agreement as set forth herein;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

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SECTION 1. Extension of Revolving Commitments. (a) The Borrower and each Extending Revolving Lender agree that, on the Restatement Effective Date, such Extending Revolving Lender’s Revolving Commitment under the Existing Credit Agreement shall be converted into an Extended Revolving Commitment under the Amended and Restated Credit Agreement, in each case in the principal amount set forth under the heading “Extended Revolving Commitments” on Schedule 2.01 to the Amended and Restated Credit Agreement opposite the name of such Extending Revolving Lender. The terms and conditions of the Extended Revolving Commitments shall be as set forth in the Amended and Restated Credit Agreement. For all purposes of the Amended and Restated Credit Agreement and the other Loan Documents, (i) each Extending Revolving Lender shall have, as of the Restatement Effective Date, an Extended Revolving Commitment (as defined in the Amended and Restated Credit Agreement) in the amount set forth on Schedule 2.01 to the Amended and Restated Credit Agreement opposite the name of such Extending Revolving Lender and (ii) each Extending Revolving Lender shall, as of the Restatement Effective Date, be an Extending Revolving Lender (as defined in the Amended and Restated Credit Agreement) and shall have all the rights and obligations of an Extending Revolving Lender under the Amended and Restated Credit Agreement and the other Loan Documents.

(b) The Revolving Commitments (or any portion thereof) under the Existing Credit Agreement of any Revolving Lender that are not converted into Extended Revolving Commitments pursuant to Section 1(a) above (such Revolving Commitments being collectively referred to as the “Non-Extended Revolving Commitments”, and such Revolving Lenders under the Existing Credit Agreement being collectively referred to as the “Non-Extending Revolving Lenders”) shall constitute “Non-Extended Revolving Commitments” under the Amended and Restated Credit Agreement. The terms and conditions of the Non-Extended Revolving Commitments shall be as set forth in the Amended and Restated Credit Agreement. For all purposes of the Amended and Restated Credit Agreement and the other Loan Documents, (i) each Non-Extending Revolving Lender shall have, as of the Restatement Effective Date, a Non-Extended Revolving Commitment (as defined in the Amended and Restated Credit Agreement) in the amount set forth on Schedule 2.01 to the Amended and Restated Credit Agreement opposite the name of such Non-Extending Revolving Lender and (ii) each Non-Extending Revolving Lender shall, as of the Restatement Effective Date, be a Non-Extending Revolving Lender (as defined in the Amended and Restated Credit Agreement) and shall have all the rights and obligations of a Non-Extending Revolving Lender under the Amended and Restated Credit Agreement and the other Loan Documents.

SECTION 2 Incremental Term Loans. Each Incremental Term Lender agrees that, for all purposes of the Amended and Restated Credit Agreement and the other Loan Documents, (a) such Incremental Term Lender shall have, as of the Restatement Effective Date, an Incremental Term Commitment (as defined in the Amended and Restated Credit Agreement) in the amount set forth on Schedule 2.01 to the Amended and Restated Credit Agreement opposite the name of such Incremental Term Lender and (b) each Incremental Term Lender shall, as of the Restatement Effective Date, be an Incremental Term Lender (as defined in the Amended and Restated Credit Agreement) and shall have all the rights and obligations of an Incremental Term Lender under the Amended and Restated Credit Agreement and the other Loan Documents.

 

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SECTION 3 Amendment and Restatement of the Existing Credit Agreement. Effective as of the Restatement Effective Date:

(a) the Existing Credit Agreement shall be amended and restated in its entirety to be in the form attached as Annex A hereto;

(b) Exhibit B to the Existing Credit Agreement shall be amended and restated to be in the form attached hereto as Exhibit B hereto, Exhibits C, H and I to the Existing Credit Agreement shall be deemed to be deleted in their entirety from the Amended and Restated Credit Agreement and each of the other Exhibits to the Amended and Restated Credit Agreement shall be deemed to be in the form attached as the corresponding Exhibit to the Existing Credit Agreement; and

(c) Schedules 1.01(a), 2.01, 4.08, 4.11, 4.13, 4.14, 6.01, 6.02, 6.05, 6.08 and 10.02 to the Existing Credit Agreement shall be amended and restated to be in the form attached as such Schedules to the Amended and Restated Credit Agreement, and each of the other Schedules to the Amended and Restated Credit Agreement shall be deemed to be in the form attached as the corresponding Schedule to the Existing Credit Agreement.

SECTION 4. Representations and Warranties. Each Loan Party jointly and severally represents and warrants, as of the Restatement Effective Date, that:

(a) after giving effect to this Amendment and Restatement Agreement and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing;

(b) (i) the execution, delivery and performance by each Loan Party of this Amendment and Restatement Agreement have been duly authorized by all necessary corporate action and do not and will not require any registration with, consent or approval of, notice to or action by, any Person (including any Governmental Authority) in order for this Amendment and Restatement Agreement to be effective and enforceable against such Loan Party and (ii) this Amendment and Restatement Agreement constitutes the legal, valid and binding obligation of each Loan Party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally, concepts of reasonableness and general equitable principles (whether enforcement is sought by proceedings in equity or at law); and

(c) after giving effect to this Amendment and Restatement Agreement and the transactions contemplated hereby, the representations and warranties of the Loan Parties set forth in Article IV of the Amended and Restated Credit Agreement and the other Loan Documents are true and correct in all material respects (provided that to the extent any representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects) on and as of the Restatement Effective Date as though made on and as of each such date, except to the extent that any such representation or warranty relates to an earlier date, in which case such representation and warranty is true and correct in all material respects (provided that to the extent any representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects) as of such earlier date.

 

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SECTION 5. Effectiveness of this Amendment and Restatement Agreement and the Amended and Restated Credit Agreement. The effectiveness of this Amendment and Restatement Agreement, including the amendment and restatement of the Existing Credit Agreement to be in the form of the Amended and Restated Credit Agreement, shall be subject to the satisfaction (or waiver in accordance with Section 10.01 of the Existing Credit Agreement) of the following conditions precedent (the date on which all of such conditions shall first be satisfied being referred to as the “Restatement Effective Date”):

(a) Documentation. The Administrative Agent shall have executed a counterpart of this Amendment and Restatement Agreement and shall have received the following:

(i) executed counterparts of this Amendment and Restatement Agreement from (A) the Parent, the Borrower and each other Loan Party, (B) Lenders representing at least the Majority Lenders under the Existing Credit Agreement, (C) Lenders representing at least the Majority Revolving Lenders under the Existing Credit Agreement, (D) Lenders representing at least the Majority Term Lenders under the Existing Credit Agreement, (E) each Extending Revolving Lender, (F) each Incremental Term Lender and (G) each Issuing Bank;

(ii) a certificate dated the Restatement Effective Date from a Responsible Officer of the Parent stating that all representations and warranties of the Loan Parties set forth in Section 4 of this Amendment and Restatement Agreement are true and correct as of the Restatement Effective Date;

(iii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Restatement Effective Date and certifying (A) that attached thereto is a true and complete copy of the Organizational Documents of such Loan Party, including all amendments thereto, as in effect on the Restatement Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, certified by the Secretary of State (or equivalent Governmental Authority) of the state of its organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or Persons performing similar functions) of such Loan Party authorizing the Transactions to be entered into by such Loan Party and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or Notices of Borrowing;

(iv) a certificate of another officer of each Loan Party dated the Restatement Effective Date and certifying as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (iii) above;

 

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(v) certificates from the appropriate Governmental Authority certifying as to the good standing, existence and authority of each Loan Party in the jurisdiction of its incorporation or formation;

(vi) a certificate from a Financial Officer of the Parent dated the Restatement Effective Date and addressed to the Administrative Agent and each of the Lenders party hereto, which shall be in form and in substance reasonably satisfactory to the Administrative Agent, certifying that each of the Parent, the Borrower, and the Parent and its Subsidiaries, taken as a whole, in each case after giving effect to the Incremental Term Loans contemplated to be made under the Amended and Restated Credit Agreement on the Restatement Effective Date and the other transactions contemplated hereby and thereby, is or are Solvent;

(vii) an opinion reasonably acceptable to the Administrative Agent, dated the Restatement Effective Date, of Cravath, Swaine & Moore LLP, special counsel to the Loan Parties;

(viii) opinions reasonably acceptable to the Administrative Agent, in each case dated the Restatement Effective Date, from local counsel located in each of Delaware, Texas, Oklahoma and Pennsylvania;

(ix) the Perfection Certificate, dated as of the Restatement Effective Date and executed by a Responsible Officer of the Parent;

(x) a certification from the American Flood Research, Inc., or any successor agency thereto, regarding each Mortgaged Property and, if any such Mortgaged Property is located in a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), flood insurance in such total amount as required by Regulation H of the Federal Reserve Board; provided that to the extent such certifications are not provided as of the Restatement Effective Date, the Borrower shall provide evidence of flood insurance for each Mortgaged Property as if such property were determined to be in a flood zone; and

(xi) a certificate of the Secretary or Assistant Secretary of the Parent dated as of the date hereof certifying that attached thereto is a true and complete copy of the Fourth Supplemental Indenture and Fifth Supplemental Indenture to the 6.5% Indenture and that such agreements have not been modified, rescinded, revoked or amended and are in full force and effect.

(b) Financial Statements. The Administrative Agent shall have received true and correct copies of (i) the Audited Financial Statements, (ii) the Interim Financial Statements and (iii) the Projections.

(c) Patriot Act Disclosures. No later than five (5) Business Days prior to the Restatement Effective Date, the Administrative Agent, on behalf of itself and the Lenders party hereto, shall have received all documentation and other information that the Administrative

 

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Agent or any such Lender shall have requested in order to comply with its obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case to the extent such documentation and other information shall have been requested ten (10) Business Days in advance of such date.

(d) Payment of Fees and Expenses. The Borrower shall have paid in immediately available funds (i) to Crédit Agricole CIB, all fees and expenses required to be paid to it for its own account pursuant to the Engagement Letter dated September 27, 2012, by and among the Parent, the Borrower and Crédit Agricole CIB, (ii) to the Administrative Agent, for the account of each Lender under the Existing Credit Agreement that executes and delivers a counterpart of this Amendment and Restatement Agreement to the Administrative Agent prior to 12:00 p.m., New York City time, on November 8, 2012, a cash consent fee equal to 0.25% of the aggregate principal amount of the Term Loans and the Revolving Commitment (whether used or unused) of such Lender, in each case, outstanding or in effect under the Existing Credit Agreement as of the Restatement Effective Date (but prior to giving effect to the transactions contemplated hereby), (iii) to the Administrative Agent, for the account of each Extending Revolving Lender that executes and delivers a counterpart of this Amendment and Restatement Agreement to the Administrative Agent prior to 12:00 p.m., New York City time, on November 8, 2012, a cash extension fee equal to 2.00% of the Extended Revolving Commitment of such Extending Revolving Lender as of the Restatement Effective Date and (iv) to the Administrative Agent, for its own account, all expenses of the Administrative Agent required to be reimbursed pursuant to Section 10.04 of the Amended and Restated Credit Agreement for which invoices have been presented to the Borrower prior to such date.

SECTION 6. Effect of Amendment. (a) Except as expressly set forth herein or in the Amended and Restated Credit Agreement, this Amendment and Restatement Agreement shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in any Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect (it being agreed and understood that, for the avoidance of doubt, as of the Restatement Effective Date all the obligations of the Loan Parties under the Existing Credit Agreement shall be superseded in their entirety by their obligations under the Amended and Restated Credit Agreement and no term or condition of the Existing Credit Agreement shall affect any term or condition of, or give rise to any Default or Event of Default under, the Amended and Restated Credit Agreement). The amendment and restatement of the Existing Credit Agreement shall not constitute a novation of any of the Loan Documents.

(b) Each Loan Party acknowledges that on and as of the Restatement Effective Date all monetary obligations under the Loan Documents in effect on such date are payable without defense, offset, counterclaim or recoupment. Each Loan Party reaffirms its monetary obligations under the Existing Credit Agreement, as amended and restated hereby, and acknowledges and agrees that such obligations are not impaired in any respect by this Amendment and Restatement Agreement. Each Loan Party hereby agrees that all liens and security interests securing payment of the Obligations under the Existing Credit Agreement are hereby collectively renewed, ratified and brought forward as security for the payment and performance of the Obligations under the Amended and Restated Credit Agreement.

 

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(c) On and after the Restatement Effective Date, each reference to the “Credit Agreement” or words of like import in any Loan Document shall be deemed a reference to the Amended and Restated Credit Agreement. This Amendment and Restatement Agreement shall constitute a “Loan Document” for all purposes of the Amended and Restated Credit Agreement and the other Loan Documents.

SECTION 7. Governing Law; Counterparts; Successors and Assigns.

(a) THIS AMENDMENT AND RESTATEMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND RESTATEMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) This Amendment and Restatement Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. This Amendment and Restatement Agreement may be executed by facsimile signature and all such signatures shall be effective as originals. Headings in this Amendment and Restatement Agreement are included herein for convenience of reference only and shall not constitute a part of this Amendment and Restatement Agreement for any other purpose or be given any substantive effect.

(c) This Amendment and Restatement Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Amended and Restated Credit Agreement.

[Remainder of page intentionally blank]

 

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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment and Restatement Agreement as of the date first written above.

 

PARENT:
WILLBROS GROUP, INC.
By:   /s/ Richard W. Russler
Name:   Richard W. Russler
Title:   Vice President and Treasurer

 

BORROWER:
WILLBROS UNITED STATES HOLDINGS, INC.
By:   /s/ Richard W. Russler
Name:   Richard W. Russler
Title:   Treasurer

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


GUARANTORS:

 

CONSTRUCTION & TURNAROUND SERVICES, L.L.C.,
CONSTRUCTION & TURNAROUND SERVICES OF CALIFORNIA, INC.,
WILLBROS DOWNSTREAM, LLC,
WILLBROS DOWNSTREAM OF OKLAHOMA, INC.,
WILLBROS CONSTRUCTION CALIFORNIA (U.S.), INC.,
WILLBROS CONSTRUCTION (U.S.), LLC,
WILLBROS ENERGY SERVICES COMPANY,
WILLBROS ENGINEERS (U.S.), LLC,
WILLBROS ENGINEERING CALIFORNIA (U.S.), INC.,
WILLBROS GOVERNMENT SERVICES (U.S.), LLC,
WILLBROS MIDSTREAM SERVICES (U.S.), LLC,
WILLBROS PROJECT SERVICES (U.S.), LLC,
WILLBROS REFINERY AND MAINTENANCE SERVICES (U.S.), LLC,
WILLBROS T&D SERVICES, LLC,
WILLBROS ENGINEERS, LLC,
WILLBROS UTILITY T&D HOLDINGS, LLC,
CHAPMAN CONSTRUCTION MANAGEMENT CO., INC.,
CHAPMAN HOLDING CO., INC.,
CHAPMAN CONSTRUCTION CO., L.P.,
WILLBROS UTILITY T&D GROUP COMMON PAYMASTER, LLC,
BEMIS, LLC,
HALPIN LINE CONSTRUCTION LLC,
HAWKEYE, LLC,
PREMIER UTILITY SERVICES, LLC,
LINEAL INDUSTRIES, INC.,
SKIBECK PIPELINE COMPANY, INC.,
TRAFFORD CORPORATION,
UTILX CORPORATION,
UTILX OVERSEAS HOLDINGS, INC.,

 

By:   /s/ Richard W. Russler
Name:   Richard W. Russler
Title:   Treasurer; Authorized Representative

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as the Administrative

Agent, the Collateral Agent, an Issuing Bank and a Lender,

By:   /s/ David Gurghigian
Name:   David Gurghigian
Title:   Managing Director
By:   /s/ Michael D. Willis
Name:   Michael D. Willis
Title:   Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  NATIXIS
By:  

/s/ Carlos Quinteros

Name:  

Carlos Quinteros

Title:  

Managing Director

For any Lender requiring a second signature block:

 

By:  

/s/ Kenyatta Gibbs

Name:  

Kenyatta Gibbs

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  THE BANK OF NOVA SCOTIA
By:  

/s/ John Frazell

Name:  

John Frazell

Title:  

Director

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

CREDIT SUISSE AG, Cayman Islands Branch, as a lender

By:

  

/s/ James Morn

Name:

  

James Morn

Title:

  

Managing Director

For any Lender requiring a second signature block:

 

By:

  

/s/ Tyler R. Smith

Name:

  

Tyler R. Smith

Title:

  

Associate

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  UBS LOAN FINANCE LLC
By:  

/s/ Irja R. Otsa

Name:  

Irja R. Otsa

Title:  

Associate Director

For any Lender requiring a second signature block:

 

By:  

/s/ Joselin Fernandes

Name:  

Joselin Fernandes

Title:  

Associate Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Capital One, N.A.
By:  

/s/ Bobby Hamilton

Name:  

Bobby Hamilton

Title:  

Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  LANDMARK VI CDO LTD
 

By:    Aladdin Capital Management LLC, as Lender

By:  

/s/ William Lowry

Name:  

William Lowry

Title:  

Designated Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  LANDMARK V CDO LIMITED
 

By:    Aladdin Capital Management LLC, as Lender

By:  

/s/ William Lowry

Name:  

William Lowry

Title:  

Designated Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  LANDMARK VII CDO LTD
 

By:    Aladdin Capital Management LLC, as Lender

By:  

/s/ William Lowry

Name:  

William Lowry

Title:  

Designated Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  GREYROCK CDO LTD.
 

By:    Aladdin Capital Management LLC, as Lender

By:  

/s/ William Lowry

Name:  

William Lowry

Title:  

Designated Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Valcour Floating Rate Fund
By:  

/s/ Todd Murray

Name:  

Todd Murray

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  ABCLO 2007-1, Ltd.
 

By:   AllianceBernstein L.P.

By:  

/s/ Michael Sohr

Name:  

Michael Sohr

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  AllianceBernstein High Income Fund
 

By:   AllianceBernstein L.P.

By:  

/s/ Michael Sohr

Name:  

Michael Sohr

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

AllianceBernstein Institutional Investments –

High Yield Loan Portfolio

 

By:   AllianceBernstein L.P.

By:  

/s/ Michael Sohr

Name:  

Michael Sohr

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO III, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO IV, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO VI, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC VII, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO V, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO IX, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

AMMC CLO X, LIMITED

By:    American Money Management Corp., as Collateral Manager

By:  

/s/ Chester M. Eng

Name:  

Chester M. Eng

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  CONTINENTAL CASUALTY COMPANY
By:  

/s/ Lynne Gugenheim

Name:  

Lynne Gugenheim

Title:  

Senior Vice President and Deputy General Counsel

Attest:  
By:  

/s/ David B. Lehman

  Assistant Secretary

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  The Hartford Floating Rate Fund, as Lender
By:  

Wellington Management Company,

LLP as its Investment Adviser

By:  

/s/ Steven M. Hoffman

Name:  

Steven M. Hoffman

Title:  

Vice President and Counsel

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  The Hartford Floating Rate High Income Fund, as Lender
By:  

Wellington Management Company,

LLP as its Investment Adviser

By:  

/s/ Steven M. Hoffman

Name:  

Steven M. Hoffman

Title:  

Vice President and Counsel

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  AVALON CAPITAL LTD. 3
 

By:    INVESCO Senior Secured Management, Inc.

          As Asset Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  AVALON IV CAPITAL LTD
 

By:    Invesco Senior Secured Management, Inc.

          As Asset Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  BELHURST CLO LTD.
 

By:    INVESCO Senior Secured Management, Inc.

          As Collateral Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Confluent 3 Limited.
 

By:    Invesco Senior Secured Management, Inc.

          As Investment Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  DIVERSIFIED CREDIT PORTFOLIO LTD.
 

By:    INVESCO Senior Secured Management, Inc.

          As Investment Adviser

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

HUDSON CANYON FUNDING II, LTD

By:    INVESCO Senior Secured Management, Inc.

          As Collateral Manager & Attorney InFact

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

Invesco Floating Rate Fund

By:    INVESCO Senior Secured Management, Inc.

          As Sub-Adviser

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Invesco Van Kampen Dynamic Credit Opportunities Fund
 

By:    Invesco Senior Secured Management, Inc.

          As Sub-Adviser

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Invesco Van Kampen Senior Income Trust

By:   Invesco Senior Secured Management, Inc.

         As Sub-Adviser

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Invesco Van Kampen Senior Loan Fund

By:   Invesco Senior Secured Management, Inc.

         As Sub-Adviser

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

LIMEROCK CLO I

By:   INVESCO Senior Secured Management, Inc.

         As Investment Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

MOSELLE CLO S.A.

By:   INVESCO Senior Secured Management, Inc.

         As Collateral Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Morgan Stanley Investment Management Croton, Ltd.

By:   Invesco Senior Secured Management, Inc.

         As Collateral Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

MSIM Peconic Bay, Ltd.

By:   Invesco Senior Secured Management, Inc.

         As Collateral Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

NAUTIQUE FUNDING LTD.

By:   INVESCO Senior Secured Management, Inc.

         As Collateral Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

QUALCOMM Global Trading Pte. Ltd.

By:   Invesco Senior Secured Management, Inc. as Investment Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

SARATOGA CLO I, LIMITED

By:   INVESCO Senior Secured Management, Inc.

         As the Asset Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

WASATCH CLO LTD

By:   INVESCO Senior Secured Management, Inc.

         As Portfolio Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Invesco Zodiac Funds – Invesco US Senior Loan Fund

By:    Invesco Management S.A. As Investment Manager

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Marea CLO, Ltd.

By:   Invesco Senior Secured Management Inc.

By:  

/s/ Thomas Ewald

Name:  

Thomas Ewald

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Redwood Master Fund, Ltd.,

by Its Investment Manager, Redwood Capital Management, LLC

By:  

/s/ Jonathan Kolatch

Name:  

Jonathan Kolatch

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Redwood Opportunity Master Fund, Ltd.,

by Its Investment Manager, Redwood Capital Management, LLC

By:  

/s/ Jonathan Kolatch

Name:  

Jonathan Kolatch

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

 

 
By:  

/s/ Russell F. Bryant

Name:  

Russell F. Bryant

Title:  

Chief Financial Officer

  Quadrant Capital Advisors, Inc.
  Investment Advisor to Pontus Trust

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

BELL ATLANTIC MASTER TRUST

By:    Crescent Capital Group LP, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  FARAKER INVESTMENT PTE LTD.
 

By:    Crescent Capital Group LP, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  FIRST 2004-II CLO, LTD.
 

By:    TCW-WLA JV Venture LLC, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  ILLINOIS STATE BOARD OF INVESTMENT
 

By:    Crescent Capital Group LP, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

MAC CAPITAL, LTD.

By:    TCW-WLA JV Venture LLC, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

MOMENTUM CAPITAL FUND, LTD.

By:    TCW-WLA JV Venture LLC, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

PALMETTO INVESTORS MASTER FUND, LLC.

By:   Crescent Capital Group LP, its sub-adviser

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

RGA REINSURANCE COMPANY

By:    Crescent Capital Group LP, its sub-adviser

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Trust Company of the West

As trustee of TCW Capital Trust

By:  

/s/ John A. Fekete

Name:  

John A. Fekete

Title:  

Managing Director

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Crescent Senior Secured Floating Rate Loan Fund, LLC

By:   Crescent Capital Group LP, its advisor

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

TCW SENIOR SECURED LOAN FUND, LP

By:   Crescent Capital Group LP, its sub-adviser

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

VITESSE CLO LTD.

By:   TCW-WLA JV Venture LLC, its sub-adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

WEST BEND MUTUAL INSURANCE COMPANY

By:   Crescent Capital Group LP, its sub-adviser

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Crescent Capital High Income Fund L.P.

Business Name: Crescent Capital LP High Income Fund

By:   Crescent Capital Group LP, its adviser

By:

  

/s/ Gil Tollinchi

Name:

  

Gil Tollinchi

Title:

  

Senior Vice President

For any Lender requiring a second signature block:

 

By:

  

/s/ Jonathan R. Insull

Name:

  

Jonathan R. Insull

Title:

  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

ATLAS SENIOR LOAN FUND, LTD.

By:   Crescent Capital Group LP, its adviser

By:  

/s/ Gil Tollinchi

Name:  

Gil Tollinchi

Title:  

Senior Vice President

For any Lender requiring a second signature block:

 

By:  

/s/ Jonathan R. Insull

Name:  

Jonathan R. Insull

Title:  

Managing Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Corporate Credit Partners L.P.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Debt Investors II (2006) (Ireland) L.P.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2005-1, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2005-2, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2006-1, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2007-A, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2007-1, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Oregon Public Employees Retirement Fund
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Ace Tempest Reinsurance Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Maryland State Retirement and Pension System
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  KKR Financial CLO 2011-1, Ltd.
By:  

/s/ Philip Davidson

Name:  

Philip Davidson

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Consumer Program Administrators, Inc.

By:    Onex Credit Partners, LLC, its investment manager

By:

  

/s/ Steven Gutman

Name:

  

Steven Gutman

Title:

  

General Counsel

For any Lender requiring a second signature block:

 

By:

  

 

Name:

  

 

Title:

  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  IDEO
By:  

/s/ Arlene Arellano

Name:  

Arlene Arellano

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

N/A

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

OCP Investment Trust

By:   Onex Credit Partners, LLC, its manager

By:

  

/s/ Steven Gutman

Name:

  

Steven Gutman

Title:

  

General Counsel

For any Lender requiring a second signature block:

 

By:

  

 

Name:

  

 

Title:

  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Onex Debt Opportunity Fund, Ltd.

By:    Onex Credit Partners, LLC, its investment manager

By:

  

/s/ Steven Gutman

Name:

  

Steven Gutman

Title:

  

General Counsel

For any Lender requiring a second signature block:

 

By:

  

 

Name:

  

 

Title:

  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Onex Senior Credit II, LP

By:    Onex Credit Partners, LLC, its investment manager

By:

  

/s/ Steven Gutman

Name:

  

Steven Gutman

Title:

  

General Counsel

For any Lender requiring a second signature block:

 

By:

  

 

Name:

  

 

Title:

  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

Onex Senior Credit Fund, L.P.

By:    Onex Credit Partners, LLC, its investment manager

By:

  

/s/ Steven Gutman

Name:

  

Steven Gutman

Title:

  

General Counsel

For any Lender requiring a second signature block:

 

By:

  

 

Name:

  

 

Title:

  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  UBS AG, STAMFORD BRANCH
By:  

/s/ Irja R. Otsa

Name:  

Irja R. Otsa

Title:  

Associate Director

For any Lender requiring a second signature block:

 

By:  

/s/ Darlene Arias

Name:  

Darlene Arias

Title:  

Director

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  Green Island CBNA Loan Funding LLC
 

 

By:   Citibank N.A.

By:  

/s/ Lynette Thompson

Name:  

Lynette Thompson

Title:  

Director

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

CANARAS SUMMIT CLO LTD.

By:    Canaras Capital Management, LLC As Sub-Investment Adviser

By:  

/s/ Richard Vratanina

Name:  

Richard Vratanina

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

Edison 1 Loan Funding LLC

 

By:   Citibank N.A.

By:  

/s/ Tina Tran

Name:  

Tina Tran

Title:  

Associate Director

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

FS ENERGY AND POWER FUND

 

By:    GSO Capital Partners LP as Sub-Adviser

By:  

/s/ Daniel H. Smith

Name:  

Daniel H. Smith

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

 

WALNUT STREET FUNDING LLC

 

By:    FS Investment Corporation, as Sole Member

 

By:    GSO / Blackstone Debt Funds Management LLC as Sub-Adviser

By:  

/s/ Daniel H. Smith

Name:  

Daniel H. Smith

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Name of the Lender (with each Lender that is an Issuing Bank executing and delivering a counterpart hereof both in its capacity as a Lender and an Issuing Bank):

 

  LAKE PLACID FUNDING
By:  

/s/ Arlene Arellano

Name:  

Arlene Arellano

Title:  

Authorized Signatory

For any Lender requiring a second signature block:

 

By:  

 

Name:  

 

Title:  

 

 

Signature Page to Amendment and Restatement Agreement of Willbros United States Holdings, Inc.


Annex A

FORM OF AMENDED AND RESTATED CREDIT AGREEMENT

Execution Version

 

 

 

CREDIT AGREEMENT

Dated as of June 30, 2010,

As amended and restated as of November 8, 2012,

among

WILLBROS UNITED STATES HOLDINGS, INC.

as Borrower,

WILLBROS GROUP, INC.

and

CERTAIN SUBSIDIARIES THEREOF,

as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Administrative Agent, Collateral Agent, and Issuing Bank,

UBS SECURITIES LLC,

as Syndication Agent,

and

NATIXIS, THE BANK OF NOVA SCOTIA and CAPITAL ONE, N.A.,

as Co-Documentation Agents

 

 

 

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

Revolving Credit Facility Sole Lead Arranger and Sole Bookrunner

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK

Term Loan Facility Sole Lead Arranger and Sole Bookrunner


Table of Contents

 

     Page  

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

     2   

Section 1.01 Certain Defined Terms

     2   

Section 1.02 Computation of Time Periods

     41   

Section 1.03 Accounting Terms; Pro Forma Calculations

     41   

Section 1.04 Classes and Types of Loans

     42   

Section 1.05 Exchange Rates; Currency Equivalents

     42   

Section 1.06 Additional Alternative Currencies

     43   

Section 1.07 Miscellaneous

     43   

ARTICLE II LOANS AND LETTERS OF CREDIT

     44   

Section 2.01 Commitments

     44   

Section 2.02 Borrowings, Conversions and Continuations of Loans

     45   

Section 2.03 Letters of Credit

     49   

Section 2.04 Evidence of Indebtedness; Notes

     57   

Section 2.05 Reductions of the Revolving Commitments

     57   

Section 2.06 Fees

     58   

Section 2.07 Repayment

     60   

Section 2.08 Prepayments

     61   

Section 2.09 Interest

     64   

Section 2.10 Breakage Costs

     66   

Section 2.11 Increased Costs

     67   

Section 2.12 Payments and Computations

     69   

Section 2.13 Taxes

     70   

Section 2.14 Sharing of Payments, Etc

     72   

Section 2.15 Applicable Lending Offices

     73   

Section 2.16 Replacement of Lenders

     73   

Section 2.17 Defaulting Lenders

     74   

Section 2.18 Revolving Commitment Extensions

     76   

ARTICLE III CONDITIONS OF LENDING

     77   

Section 3.01 Conditions Precedent to the Amendment and Restatement

     77   

Section 3.02 Conditions Precedent to each Subsequent Loan and Letter of Credit

     77   

ARTICLE IV REPRESENTATIONS AND WARRANTIES

     78   

Section 4.01 Existence

     78   

Section 4.02 Power and Authority

     78   

Section 4.03 No Contravention

     78   

Section 4.04 Authorizations and Approvals

     78   

Section 4.05 Enforceable Obligations

     79   

Section 4.06 Financial Statements; No Material Adverse Effect

     79   

Section 4.07 True and Complete Disclosure

     79   

 

i


Table of Contents

(continued)

 

     Page  

Section 4.08 Litigation

     80   

Section 4.09 Compliance with Laws

     80   

Section 4.10 No Default

     80   

Section 4.11 Subsidiaries; Corporate Structure

     81   

Section 4.12 Condition of Properties

     81   

Section 4.13 Environmental Condition

     81   

Section 4.14 Insurance

     82   

Section 4.15 Taxes

     82   

Section 4.16 ERISA Compliance

     82   

Section 4.17 Security Interests

     83   

Section 4.18 Bank Accounts

     84   

Section 4.19 Labor Relations

     84   

Section 4.20 Intellectual Property

     85   

Section 4.21 Solvency

     85   

Section 4.22 Margin Regulations

     85   

Section 4.23 Investment Company Act

     85   

Section 4.24 Names and Locations

     85   

Section 4.25 Use of Proceeds

     85   

Section 4.26 Foreign Assets Control Regulations, etc

     85   

ARTICLE V AFFIRMATIVE COVENANTS

     86   

Section 5.01 Preservation of Existence, Etc

     86   

Section 5.02 Compliance with Laws, Etc

     86   

Section 5.03 Maintenance of Property

     86   

Section 5.04 Maintenance of Insurance

     86   

Section 5.05 Payment of Taxes

     87   

Section 5.06 Reporting Requirements

     87   

Section 5.07 Other Notices

     90   

Section 5.08 Books and Records; Inspection

     91   

Section 5.09 Agreement to Grant Acceptable Security Interest

     92   

Section 5.10 Additional Guarantors

     93   

Section 5.11 Hedging Arrangements

     94   

Section 5.12 Further Assurances in General

     94   

Section 5.13 Post-Closing Obligations

     94   

ARTICLE VI NEGATIVE COVENANTS

     95   

Section 6.01 Liens

     95   

Section 6.02 Debts

     96   

Section 6.03 Merger or Consolidation

     98   

Section 6.04 Asset Dispositions

     99   

Section 6.05 Investments and Acquisitions

     100   

Section 6.06 Restricted Payments

     102   

Section 6.07 Change in Nature of Business

     103   

 

ii


Table of Contents

(continued)

 

     Page  

Section 6.08 Transactions with Affiliates

     103   

Section 6.09 Agreements Restricting Liens and Distributions

     103   

Section 6.10 Limitation on Accounting Changes or Changes in Fiscal Periods

     104   

Section 6.11 Limitation on Speculative Hedging

     104   

Section 6.12 Use of Proceeds

     104   

Section 6.13 Sale and Leaseback Transactions and Synthetic Leases

     105   

Section 6.14 6.5% Convertible Senior Notes

     105   

Section 6.15 Maximum Capital Expenditures

     105   

Section 6.16 Minimum Interest Coverage Ratio

     105   

Section 6.17 Maximum Total Leverage Ratio

     106   

Section 6.18 Amendment of Organizational Documents

     106   

ARTICLE VII EVENTS OF DEFAULT

     106   

Section 7.01 Events of Default

     106   

Section 7.02 Optional Acceleration of Maturity

     108   

Section 7.03 Automatic Acceleration of Maturity

     109   

Section 7.04 Non-exclusivity of Remedies

     109   

Section 7.05 Right of Set-off

     109   

Section 7.06 Application of Proceeds

     110   

Section 7.07 Letters of Credit

     111   

ARTICLE VIII THE GUARANTY

     112   

Section 8.01 Liabilities Guaranteed

     112   

Section 8.02 Nature of Guaranty

     112   

Section 8.03 Agent’s Rights

     112   

Section 8.04 Guarantor’s Waivers

     112   

Section 8.05 Maturity of Obligations, Payment

     113   

Section 8.06 Agent’s Expenses

     114   

Section 8.07 Liability

     114   

Section 8.08 Events and Circumstances Not Reducing or Discharging any Guarantor’s Obligations

     114   

Section 8.09 Subordination of All Guarantor Claims

     116   

Section 8.10 Claims in Bankruptcy

     117   

Section 8.11 Payments Held in Trust

     117   

Section 8.12 Benefit of Guaranty

     117   

Section 8.13 Reinstatement

     117   

Section 8.14 Liens Subordinate

     118   

Section 8.15 Guarantor’s Enforcement Rights

     118   

Section 8.16 Limitation

     118   

Section 8.17 Contribution Rights

     118   

Section 8.18 Release of Guarantors

     119   

 

iii


Table of Contents

(continued)

 

     Page  

ARTICLE IX THE AGENTS AND THE ISSUING BANK

     119   

Section 9.01 Appointment and Authority

     119   

Section 9.02 Rights as a Lender

     119   

Section 9.03 Exculpatory Provisions

     120   

Section 9.04 Reliance by the Agents and the Issuing Banks

     121   

Section 9.05 Delegation of Duties

     121   

Section 9.06 Resignation of an Agent or the Issuing Bank

     121   

Section 9.07 Non-Reliance on Administrative Agent and Other Lenders; Certain Acknowledgments

     122   

Section 9.08 Indemnification

     123   

Section 9.09 Collateral and Guaranty Matters

     123   

Section 9.10 No Other Duties, Etc

     125   

Section 9.11 Administrative Agent May File Proofs of Claim

     125   

ARTICLE X MISCELLANEOUS

     126   

Section 10.01 Amendments, Etc

     126   

Section 10.02 Notices, Etc

     128   

Section 10.03 No Waiver; Cumulative Remedies; Enforcement

     130   

Section 10.04 Costs and Expenses

     131   

Section 10.05 Indemnification

     131   

Section 10.06 Successors and Assigns

     132   

Section 10.07 Confidentiality

     137   

Section 10.08 Execution in Counterparts

     138   

Section 10.09 Survival of Representations; Termination

     138   

Section 10.10 Severability

     139   

Section 10.11 Payments Set Aside

     139   

Section 10.12 Governing Law

     140   

Section 10.13 Submission to Jurisdiction

     140   

Section 10.14 Waiver of Jury

     140   

Section 10.15 Collateral Matters; Hedging Counterparties

     140   

Section 10.16 Judgment Currency

     141   

Section 10.17 Entire Agreement

     141   

Section 10.18 Patriot Act Notice

     141   

Section 10.19 Amendment and Restatement

     142   

Section 10.20 Amendments to Financial Covenants

     142   

 

iv


EXHIBITS:

 

Exhibit A    —      Form of Assignment and Acceptance Agreement
Exhibit B    —      Form of Compliance Certificate
Exhibit C    —      Reserved
Exhibit D    —      Form of Letter of Credit Request
Exhibit E-1    —      Form of Revolving Note
Exhibit E-2    —      Form of Term Note
Exhibit F    —      Form of Notice of Borrowing
Exhibit G    —      Form of Notice of Conversion or Continuation
Exhibit H    —      Reserved
Exhibit I    —      Reserved
Exhibit J    —      Form of Supplemental Perfection Certificate

SCHEDULES:

 

Schedule 1.01 (a)    —      Existing Letters of Credit
Schedule 2.01    —      Commitments
Schedule 4.08    —      Litigation
Schedule 4.11    —      Subsidiaries
Schedule 4.13    —      Environmental Matters
Schedule 4.14    —      Insurance
Schedule 6.01    —      Existing Liens
Schedule 6.02    —      Existing Debt
Schedule 6.05    —      Existing Investments
Schedule 6.08    —      Affiliate Transactions
Schedule 10.02    —      Addresses for Notices


CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of June 30, 2010, as amended and restated as of November 8, 2012, is among Willbros United States Holdings, Inc., a Delaware corporation (the “Borrower”), the Guarantors, the Lenders, Crédit Agricole Corporate and Investment Bank, as Administrative Agent, Collateral Agent, and Issuing Bank, UBS Securities, LLC, as Syndication Agent, and Natixis, The Bank of Nova Scotia and Capital One, N.A., as Co-Documentation Agents.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower, the Guarantors, the Lenders, the Issuing Banks, the Agents, the Syndication Agent and the Co-Documentation Agents hereby agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01 Certain Defined Terms. As used in this Agreement (including in the introduction), the following terms shall have the following meanings (unless otherwise indicated, such meanings to be equally applicable to both the singular and plural forms of the terms defined):

17th Street Facility” means the owned real property of the Borrower located at 5104 – 17th Street NW, Edmonton, Alberta, Canada and the fixtures and other interests relating thereto.

6.5% Convertible Senior Notes” means the $84,500,000 in original principal amount of 6.5% convertible senior notes due 2012 issued by the Parent pursuant to the 6.5% Indenture.

6.5% Indenture” means the Indenture dated as of December 23, 2005, by and among the Parent, the Borrower, as guarantor, and Bank of Texas, N.A., as successor in interest to The Bank of New York, as trustee, as supplemented.

Acceleration Date” means the first date after the Restatement Effective Date on which there shall occur an acceleration of the Loans and termination of the Commitments pursuant to Section 7.02 or 7.03.

Acceptable Security Interest” in any property means a Lien which (a) exists in favor of the Collateral Agent for the benefit of the Secured Parties, (b) secures the Obligations, and (c) is perfected and enforceable against the Loan Party that created such Lien in preference, subject to Section 5.09(e), to any rights of any Person therein, other than Permitted Liens.

Account Control Agreement” shall mean, with respect to any deposit or securities account of any Loan Party held with a financial institution or financial intermediary that is not the Collateral Agent, an agreement in form and substance reasonably acceptable to the Collateral Agent among the Collateral Agent, such financial institution or financial intermediary and the applicable Loan Party establishing control over such deposit account or securities account of such Loan Party.


Acquisition” means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which the Parent or any of its Subsidiaries (a) acquires any going business or all or substantially all of the assets of any corporation, partnership, limited liability company, or other entity, or a division thereof, whether through purchase of assets, merger or otherwise, or (b) acquires at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership, limited liability company or other entity.

Adjusted Base Rate” means, for any day, a fluctuating rate of interest per annum equal to the highest of (a) the Prime Rate in effect for such day, (b) the sum of the Federal Funds Effective Rate in effect for such day plus  1/2 of 1.0% per annum, (c) the sum of the Eurocurrency Rate in effect for such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in Dollars with a maturity of one month plus 1.0% per annum and (d) with respect to Term Loans, any Revolving Advances made by an Extending Revolving Lender on or after July 1, 2013 and for all Revolving Outstanding Amounts owing to any Extending Revolving Lender on and after July 1, 2013, 3.0% per annum. Any change in the Adjusted Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate.

Administrative Agent” means Crédit Agricole CIB, in its capacity as administrative agent for the Lenders under the Loan Documents, and any successor administrative agent appointed pursuant to Section 9.06.

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

Affiliate” of any Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person; provided, however, that with respect to any Loan Party, the term “Affiliate” also means any Person that possesses directly or indirectly, the power to vote or direct the voting of 10% or more of the outstanding shares of Voting Stock of such Loan Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.

Agent” means either the Administrative Agent or the Collateral Agent.

Agent Parties” has the meaning set forth in Section 10.02(d).

Agreement” means this Credit Agreement, dated as of June 30, 2010, as amended and restated as of November 8, 2012, among the Borrower, the Guarantors, the Lenders, the Issuing Banks, the Agents, the Syndication Agent and the Co-Documentation Agents.

Allocable Amount” has the meaning set forth in Section 8.17(b).

Alternative Currency” means Canadian Dollars, Australian Dollars, Euro and each other currency (other than Dollars) that is approved in accordance with Section 1.06.

 

-3-


Amendment and Restatement Agreement” means the Amendment and Restatement Agreement dated as of November 8, 2012, among the parties thereto, providing for the amendment and restatement of the Original Credit Agreement to be in the form hereof.

Applicable Commitment Fee Rate” means, for any day, the applicable rate per annum set forth below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.06(c) and subject to Section 2.09(f):

 

Fee Rate Level

   Total Leverage Ratio   Applicable
Commitment Fee Rate

4

   ³2.50:1     0.75%

3

   <2.50:1 but ³2.00:1   0.625%

2

   <2.00:1 but ³1.50:1     0.50%

1

   <1.50:1     0.50%

Any increase or decrease in the Applicable Commitment Fee Rate resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.06(c); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then the Fee Rate Level 4 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until such Compliance Certificate is delivered. The Applicable Commitment Fee Rate in effect as of the Restatement Effective Date shall be Fee Rate Level 4 until the first Business Day immediately following the first delivery after the Restatement Effective date of a Compliance Certificate pursuant to Section 5.06(c).

Applicable Lender”, when used with respect to the Term Loan Facility or the Revolving Credit Facility, means a Lender that has a Commitment with respect to such Facility or holds a Term Loan or a Revolving Advance, respectively.

Applicable Lending Office” means (a) with respect to any Lender, the office, branch, Subsidiary, Affiliate or correspondent bank of such Lender specified in its Administrative Questionnaire or such other office, branch, Subsidiary, Affiliate or correspondent bank as such Lender may from time to time specify in a notice to the Borrower and the Administrative Agent and (b) with respect to the Administrative Agent, the address specified for the Administrative Agent on Schedule 10.02 or such other address, facsimile number, electronic mail address or telephone number as shall be designated by the Administrative Agent in a notice to the other parties hereto.

 

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Applicable Margin” means: (a) with respect to Term Loans that are Base Rate Loans, 6.50% per annum, (b) with respect to Term Loans that are Eurocurrency Rate Loans, 7.50% per annum and (c) with respect to Revolving Advances of any Type or letter of credit fees in respect of Performance Letters of Credit, the applicable rate per annum set forth below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.06(c) and subject to Section 2.09(f):

 

Pricing Level

   Total
Leverage
Ratio
  Revolving
Borrowing
Eurocurrency
Rate until the
Revolving
Maturity
Date
  Revolving
Borrowing
Base Rate
until the
Revolving
Maturity
Date
  Performance
Letters of
Credit
  Revolving
Borrowing
Eurocurrency
Rate for
Extended
Revolving
Borrowings
beginning
July 1, 2013
until the
Extended
Revolving
Maturity
Date
  Revolving
Borrowing
Base Rate
for
Extended
Revolving
Borrowings
beginning
July 1, 2013

until the
Extended
Revolving
Maturity
Date

4

   ³2.50:1   3.75%   2.75%   3.25%   7.50%   6.50%

3

   <2.50:1 but ³2.00:1   3.50%   2.50%   3.00%   7.50%   6.50%

2

   <2.00:1 but ³1.50:1   3.25%   2.25%   2.75%   7.50%   6.50%

1

   <1.50:1   3.00%   2.00%   2.50%   7.50%   6.50%

Any increase or decrease in the Applicable Margin resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.06(c); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then the Pricing Level 4 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until such Compliance Certificate is delivered. The Applicable Margin in effect as of the Restatement Effective Date shall be Pricing Level 4 until the first Business Day immediately following the first delivery after the Restatement Effective date of a Compliance Certificate pursuant to Section 5.06(c).

 

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Applicable Percentage” means, at any time, (a) with respect to any Revolving Lender, subject to any adjustment as provided in Section 2.17(a)(iv), the percentage (carried out to the ninth decimal place) of the aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, provided that if all the Revolving Commitments have terminated, the Applicable Percentages of the Revolving Lenders shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments, and (b) with respect to any Term Lender, (i) prior to the termination of the Incremental Term Commitments, the percentage (carried out to the ninth decimal place) of the aggregate Incremental Term Commitments represented by such Lender’s Incremental Term Commitment at such time and (ii) following the termination of the Incremental Term Commitments, the percentage (carried out to the ninth decimal place) of the aggregate principal amount of the Term Loans represented by such Lender’s Term Loans at such time.

Applicable Period” has the meaning set forth in Section 2.09(f).

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arrangers” means the Revolving Credit Facility Arranger and the Term Loan Facility Arranger.

Asset Disposition” means any disposition, whether by sale, lease, license, transfer or otherwise, of any or all of the property of the Parent or any of its Subsidiaries, other than (a) any sale or issuance of Equity Interests of any Subsidiary to the Parent or any other Subsidiary, (b) dispositions of cash and Cash Equivalents in the ordinary course of business or for any purposes permitted under this Agreement, (c) sales of inventory in the ordinary course of business, (d) dispositions of assets which have become obsolete or, in the Parent’s reasonable judgment, no longer used or useful in the business of the Parent and its Subsidiaries, (e) dispositions of any Governmental Fueling Facility, (f) leases and subleases of equipment in the ordinary course of business, and (g) any loss, destruction or damage of such property, or any actual condemnation, seizure or taking, by exercise of eminent domain or otherwise, of such property, or any confiscation or requisition of the use of such property; provided that, for purposes of Section 2.08(c)(v) and the related definitions, the term “Asset Disposition” shall mean Asset Dispositions by the Parent or any of its Subsidiaries made in reliance on Section 6.04(c), 6.04(g), and 6.04(i) of property the Net Proceeds of which is $1,000,000 or more with respect to any such Asset Disposition and $2,000,000 or more with respect to all such Asset Dispositions consummated during any one fiscal year.

Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Acceptance” shall mean an Assignment and Acceptance entered into by a Lender and an Eligible Assignee and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent in its sole discretion.

 

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Attributable Indebtedness” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries as of December 31, 2011, together with the related consolidated statements of operations, stockholders’ equity and comprehensive income (loss) and cash flows for the fiscal year ended December 31, 2011 of the Parent and its Subsidiaries, including the notes thereto.

Australian Dollars” or “AU$” means the lawful money of Australia.

Base Rate Loan” means a Loan that bears interest at a rate determined by reference to the Adjusted Base Rate.

Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act.

Bookrunner” means Crédit Agricole CIB in its capacity as the Revolving Credit Facility bookrunner and Crédit Agricole CIB in its capacity as Term Loan Facility bookrunner, as the context may require.

Borrower” has the meaning set forth in the introductory paragraph hereto.

Borrower Materials” has the meaning set forth in Section 5.06.

Borrowing” means a Revolving Borrowing or a Term Borrowing, as the context may require.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to remain closed under the laws of, or in fact remain closed in, New York and, if such day relates to any Eurocurrency Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market; provided that, if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, or any other dealings in any currency other than Dollars to be carried out pursuant to this Agreement, such day is also a day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

Canadian Dollars” and “C$” means the lawful money of Canada.

Capital Expenditures” means all expenditures of the Parent and its Subsidiaries in respect of the purchase or other acquisition, construction or improvement of any fixed or capital assets that are required to be capitalized under GAAP on a consolidated balance sheet of the Parent and its Subsidiaries as property, plant, equipment or other fixed assets; provided, however, that Capital Expenditures shall in any event exclude (a) normal replacements and maintenance which are properly charged to current operations, (b) expenditures made on account of any loss, destruction or damage of any fixed or capital assets, or any actual condemnation, seizure or taking, by exercise of eminent domain or otherwise, of any fixed or capital assets, or

 

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any confiscation or requisition of the use of any fixed or capital assets, to the extent such expenditures do not exceed the amount of the insurance proceeds, condemnation awards or damage recovery proceeds relating thereto, (c) any Qualified Investment made pursuant to any Reinvestment Notice, (d) any such expenditures in the form of a substantially contemporaneous exchange of similar fixed or capital assets, except to the extent of cash or other consideration (other than the assets so exchanged), if any, paid or payable by the Parent and its Subsidiaries, (e) any Investment or Acquisition, and (f) expenditures in connection with the construction, development and/or operation and maintenance of any Governmental Fueling Facility.

Capital Lease” of a Person means any lease of any property by such Person as lessee that would, in accordance with GAAP (but subject to Section 1.03(a)), be required to be classified and accounted for as a capital lease on the balance sheet of such Person.

Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of the Secured Parties, as collateral for the Letter of Credit Exposure, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent and the applicable Issuing Bank (which documentation is hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.

Cash Equivalents” means:

(a) investments in direct obligations of the United States of America or any agency thereof,

(b) investments in certificates of deposit of maturities less than one year or less than two years (provided that such investment lasting longer than one year but less than two years may be converted into cash within three (3) Business Days without unreasonable premium or penalty) issued by, or time deposits with, Amegy Bank, N.A., Bank of Texas, N.A., or commercial banks in the United States having capital and surplus in excess of $500,000,000,

(c) investments in commercial paper of maturities less than one year rated A1 or P1 (or higher) by S&P or Moody’s, respectively, or any equivalent rating from any other rating agency reasonably satisfactory to the Administrative Agent,

(d) investments in securities purchased under repurchase obligations pursuant to which arrangements are made with selling financial institutions (being a financial institution with a rating of A1 or P1 (or higher) by S&P or Moody’s, respectively) for such financial institutions to repurchase such securities within 30 days from the date of purchase, and other similar short-term investments made in connection with cash management practices of the Parent and its Subsidiaries,

(e) investments in institutional money market mutual funds that meet the criteria set forth by rule 2a-7 of the Investment Company Act of 1940, and

(f) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.

 

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CFC” means (a) each Person that is a “controlled foreign person” for purposes of the Code and (b) each Subsidiary of any such controlled foreign person.

Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority 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 the occurrence of any of the following events:

(a) the consummation of any transaction (including any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act, but excluding any employee benefit plan of the Parent or any of its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) or related persons constituting a “group” (as such term is used in Rule 13d-5 under the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more than 40% of the Voting Stock of the Parent, measured by voting power rather than number of shares; or

(b) the first day on which a majority of the members of the Board of Directors of the Parent are not Continuing Directors.

Class” has the meaning set forth in Section 1.04.

Closing Date” means June 30, 2010.

Code” means the United States Internal Revenue Code of 1986 and any successor statute and all rules and regulations promulgated thereunder.

Co-Documentation Agents” means Natixis, The Bank of Nova Scotia and Capital One, N.A., in their capacities as co-documentation agents for the Facilities.

Collateral” means (a) all the “Collateral”, “Property”, and “Premises” and other similar terms as defined in, or used in, any Security Document and (b) all other property of any Loan Party subject to, or intended to be subject to, any Security Document as collateral covered thereby.

Collateral Agent” means Crédit Agricole CIB, in its capacity as collateral agent under the Loan Documents, and any successor collateral agent appointed pursuant to Section 9.06.

Collateral Agent Account” means an interest-bearing deposit account maintained with the Collateral Agent for the benefit of the Secured Parties and subject to an Acceptable Security Interest.

Commitments” means the Revolving Commitments and/or the Incremental Term Commitments, as the context may require.

 

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Compliance Certificate” means a Compliance Certificate signed by a Financial Officer of the Parent in substantially the form of the attached Exhibit B.

Consolidated Debt” means, as of any date of determination, all Debt of the Parent and its Subsidiaries as of such date, calculated on a consolidated basis in accordance with GAAP.

Consolidated EBITDA” means, for any period, without duplication, the sum of the following, in each case calculated for such period:

(a) Consolidated Net Income, excluding the results of discontinued operations for such period (as determined in accordance with GAAP); plus

(b) to the extent deducted in determining such Consolidated Net Income, (i) Consolidated Interest Expense, (ii) charges against income for foreign, federal, state, and local Taxes, (iii) depreciation and amortization expense, (iv) other non-cash charges or losses (other than non-cash charges related to the SEC/DOJ Investigation), (v) extraordinary or non-recurring expenses or losses, and (vi) amortization, write-off or write-down of debt discount, capitalized interest and debt issuance costs and commissions, discounts and other fees and charges associated with letters of credit or Debt; minus

(c) to the extent included in determining such Consolidated Net Income, extraordinary or non-recurring gains; minus (in the case of a gain) or plus (in the case of a loss);

(d) to the extent included (or deducted) in determining such Consolidated Net Income, any gains or losses on sales of assets of the Parent or any of its Subsidiaries (other than in the ordinary course of business); minus

(e) to the extent included in determining such Consolidated Net Income, the income of any Person (other than any Wholly Owned Subsidiary of the Parent) in which the Parent or any Wholly-Owned Subsidiary owns any Equity Interests, except to the extent (i) such income is received by the Parent or such Wholly-Owned Subsidiary in a cash distribution during such period or (ii) the payment of cash dividends or similar cash distributions by such Person to the Parent or such Wholly-Owned Subsidiary on account of such ownership is not prohibited by any Governmental Authority or by the operation of the terms of the Organizational Documents of such Person or any agreement or other instrument binding on such Person; minus (in the case of a gain) or plus (in the case of a loss);

(f) to the extent included (or deducted) in determining such Consolidated Net Income, non-cash gains (other than gains resulting from derivatives to the extent the amount of commodities hedged with such derivatives exceeds the Parent’s and its Subsidiaries’ commodities sold) and losses as a result of changes in the fair value of derivatives; minus

(g) cash payments made during such period in respect of non-cash charges added back in determining Consolidated EBITDA pursuant to clause (b)(iv) above for any previous period; plus (in the case of a loss) or minus (in the case of a gain)

(h) to the extent deducted in determining such Consolidated Net Income, fees and expenses in an aggregate amount not to exceed $20,000,000 relating to the InfrastruX Merger, the Refinancing Transactions and the transactions contemplated hereby; plus (in the case of a loss) or minus (in the case of a gain)

 

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(i) to the extent included (or deducted) in determining such Consolidated Net Income, gain or loss arising from early extinguishment of Debt or obligations under any Hedging Arrangement; plus

(j) to the extent deducted in determining such Consolidated Net Income, fees and expenses paid or payable in connection with any waiver or amendment of any Debt (including in connection with the Transactions); plus

(k) to the extent deducted in determining such Consolidated Net Income, any premiums or similar fees paid or payable in connection with a prepayment of any Debt; plus

(l) to the extent deducted in determining such Consolidated Net Income, costs, expenses and charges relating to the independent compliance monitor retained as a result of the SEC/DOJ Investigation incurred on or prior to December 31, 2012, provided that the aggregate amount added pursuant to clauses (l) and (m) of this definition in any period of four consecutive fiscal quarters shall not exceed $5,000,000; plus

(m) to the extent deducted in determining such Consolidated Net Income, costs, expenses and charges relating to the TransCanada Pipeline Arbitration incurred on or prior to December 31, 2012, provided that the aggregate amount added pursuant to clauses (l) and (m) of this definition in any period of four consecutive fiscal quarters shall not exceed $5,000,000.

For purposes of calculating Consolidated EBITDA for any period, if during such period the Parent or any Subsidiary shall have consummated any Acquisition or any Asset Disposition of a Subsidiary, a business unit or a line of business and the aggregate consideration paid or received in which by the Parent and its Subsidiaries exceeded $25,000,000, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.03(c).

Consolidated Interest Expense” means, for any period, the interest expense of the Parent and its Subsidiaries (excluding, to the extent otherwise included therein, (a) amortization, write-off or write-down of debt discount, capitalized interest and debt issuance costs and commissions, discounts and other fees and charges associated with letters of credit or Debt (including fees, expenses and charges payable in connection with the consummation of the Transactions or any other waivers or amendment of any Debt) and (b) non-cash gains (other than gains resulting from derivatives to the extent the amount of commodities hedged with such derivatives exceeds the Parent’s and its Subsidiaries’ commodities sold) and losses as a result of changes in the fair value of derivatives) calculated on a consolidated basis in accordance with GAAP for such period.

Consolidated Net Income” means, for any period, the net income of the Parent and its Subsidiaries calculated on a consolidated basis for such period in accordance with GAAP.

Continue”, “Continuation”, and “Continued” each refers to a continuation of Eurocurrency Rate Loans for an additional Interest Period upon the expiration of the Interest Period then in effect for such Loans.

 

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Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Parent who (a) was a member of such Board of Directors on the Restatement Effective Date or (b) 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 at the time of such nomination or election.

Convert”, “Conversion”, and “Converted” each refers to a conversion of Loans of one Type into Loans of another Type.

Crédit Agricole CIB” means Crédit Agricole Corporate and Investment Bank.

Credit Extension” means each of the following: (a) a Borrowing and (b) an LC Credit Extension.

Debt” means, for any Person, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(b) obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and not past due for more than ninety (90) days unless being contested by such Person in good faith by appropriate proceedings diligently conducted, (ii) deferred compensation payable to directors, officers or employees of the Parent or any of its Subsidiaries and (iii) any purchase price adjustment or earnout, except to the extent that the amount payable pursuant to such purchase price adjustment or earnout is determinable and is not paid when due (giving effect to any applicable grace period));

(c) Capital Leases;

(d) all noncontingent reimbursement obligations of such Person in respect of Financial Letters of Credit, bankers’ acceptances, bank guarantees, surety bonds or similar instruments which are issued upon the application of such Person or upon which such Person is an account party;

(e) indebtedness secured by a Lien on property now or hereafter owned or acquired by such Person (including indebtedness arising under conditional sales or other title retention agreements, but excluding (i) trade accounts payable in the ordinary course of business and not past due for more than ninety (90) days unless being contested by such Person in good faith by appropriate proceedings diligently conducted and (ii) customary reservations and restrictions of title under agreements with suppliers entered into in the ordinary course of business), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse (provided that if such Person has not assumed or otherwise become liable in respect of such Debt, such Debt shall be deemed to be in an amount equal to the lesser of the amount of such Debt and the fair market value of the property encumbered by such Lien); and

(f) all Guarantees of such Person in respect of Debt of any other Person.

 

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For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer to the extent such Person is liable therefor as a result thereof, unless such Debt is expressly made non-recourse to such Person. The amount of any Capital Lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding the foregoing, any obligations owed by the Parent or any Subsidiary to any payment processor solely on account of such processor having satisfied obligations of the Parent or any Subsidiary in respect of trade accounts payable in the ordinary course of business shall not constitute “Debt”.

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.

Default” means (a) an Event of Default or (b) any event or condition which with notice or lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as determined by the Administrative Agent or the applicable Issuing Bank:

(a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit, within three (3) Business Days of the date required to be funded by it hereunder;

(b) has notified the Borrower, the Administrative Agent, such Issuing Bank or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its respective funding obligations hereunder or under other agreements in which it commits to extend credit;

(c) has failed, within three (3) Business Days after request by the Administrative Agent or such Issuing Bank, to confirm in a manner satisfactory to the Administrative Agent or such Issuing Bank, as applicable, that it will comply with its funding obligations; or

(d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

Documentary Letter of Credit” means a letter of credit qualifying as a “commercial letter of credit” under 12 CFR Part 3, Appendix A, Section 3(b)(3) or any successor U.S. Comptroller of the Currency regulation.

 

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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 any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or, with respect to any such determinations expressly provided to be made by it, the applicable Issuing Bank at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or, in the case of the determination of any Dollar Equivalent for purposes of Section 2.03(c)(i), the applicable Honor Date) for the purchase of Dollars with such Alternative Currency.

Dollars” and “$” means the lawful money of the United States of America.

Domestic Subsidiary” means any Subsidiary that is organized or incorporated under the laws of the United States, any State thereof or the District of Columbia.

Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person).

Environmental Claim” means any allegation, notice of violation, action, lawsuit, claim, demand, judgment, order or proceeding by any Governmental Authority or any Person for liability or damage, including, without limitation, personal injury, property damage, contribution, indemnity, direct or consequential damages, damage to the environment, nuisance, pollution, or contamination, or for fines, penalties, fees, costs, expenses or restrictions arising under or otherwise related to an obligation under Environmental Law.

Environmental Law” means all former, current and future Federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, directives, orders (including consent orders), and agreements in each case, relating to protection of the environment, natural resources, human health and safety or the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.

Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or non-compliance with 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 of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permit” means any permit, license, order, approval or other authorization under any Environmental Law.

Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, or any obligations convertible into or exchangeable for, or giving any person a right, option or warrant to acquire, such equity interests or such convertible or exchangeable

 

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obligations; provided that Equity Interests shall not include any Debt (including the 6.5% Convertible Senior Notes) that is convertible or exchangeable into Equity Interests of any Person.

Equity Issuance” means any issuance of Equity Interests by the Parent after the Closing Date, other than Equity Interests issued (a) pursuant to stock option plans or other benefit plans or agreements for directors, officers or employees of the Parent and its Subsidiaries, (b) as consideration for any Investment or other Acquisition permitted under Section 6.05 (including any such issuance the proceeds of which are used to finance any earnout payment arising under such Investment or Acquisition) or (c) in connection with any redemption, purchase, retirement or defeasance of the 6.5% Convertible Senior Notes or other Debt that is permitted under the terms of this Agreement.

Equity Issuance Proceeds” means, with respect to any Equity Issuance, all cash proceeds received by the Parent from such Equity Issuance, net of underwriting discounts and commissions and out-of-pocket costs, expenses and disbursements paid or incurred in connection therewith in favor of any Person that is not an Affiliate of the Parent or any other Loan Party.

ERISA” means the Employee Retirement Income Security Act of 1974 and any successor statute and all rules and regulations promulgated thereunder.

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 Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the 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 Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any 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.

Euro” or “” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D.

Eurocurrency Rate” means, with respect to a Eurocurrency Rate Loan for the relevant Interest Period, the applicable British Bankers’ Association Interest Settlement Rate for deposits

 

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in Dollars (for delivery on the first day of such Interest Period) appearing on the Reuters “LIBOR01” screen (or on any successor or substitute screen provided by Reuters, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period; provided that if such rate is not available to the Administrative Agent for any reason, then the applicable Eurocurrency Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which Crédit Agricole CIB or one of its Affiliate banks offers to place deposits in Dollars for delivery on the first day of such Interest Period with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, in the amount of $5,000,000 and having a maturity equal to such Interest Period. For all Term Loans, any Revolving Advances made by an Extending Revolving Lender on or after July 1, 2013 and for all Revolving Outstanding Amounts owing to any Extending Revolving Lender on and after July 1, 2013, the Eurocurrency Rate shall be the higher of (a) the rate determined as set forth above and (b) 2.0% per annum.

Eurocurrency Rate Loan” means a Loan that bears interest at a rate determined by reference to the Eurocurrency Rate.

Eurocurrency Rate Reserve Percentage” of any Lender for the Interest Period for any Eurocurrency Rate Loan means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time-to-time by the Federal Reserve Board for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period. The Eurocurrency Rate Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Event of Default” has the meaning set forth in Section 7.01.

Event of Loss” means (a) any loss, destruction or damage or (b) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation of, or requisition of the use of, any assets of the Parent or any of its Subsidiaries; provided that, with respect to any such Event of Loss, the book value of the assets subject thereto shall be $2,500,000 or more.

Excepted Liens” means:

(a) Liens for Taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings diligently conducted and for which adequate reserves in accordance with and to the extent required by GAAP shall have been set aside on its books;

 

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(b) Liens imposed by law, or arising by operation of law, including, without limitation, carriers’, warehousemen’s, landlord’s, mechanics’, materialmen’s, and other similar liens arising in the ordinary course of business which secure payment of obligations not more than thirty (30) days past due or which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves shall have been set aside on the books of the applicable Person;

(c) Liens incurred and pledges or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other social security or retirement benefits, or similar legislation, other than any Lien imposed by ERISA;

(d) Liens incurred and pledges or deposits made in connection with the performance of bids and leases (other than Debt), statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(e) easements, rights-of-way, restrictions and other similar encumbrances, and other minor defects or irregularities in title evidenced by a survey, affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

(f) Liens arising out of, or appeal bonds in respect of, judgments or awards that do not constitute an Event of Default under Section 7.01(f);

(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Debt and are not subject to restrictions on access by the Parent or any of its Subsidiaries in excess of those required by applicable banking regulations;

(h) Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar filings under applicable law) regarding (i) operating leases entered into by the Parent or any of its Subsidiaries in the ordinary course of business or (ii) perfection of the acquiror’s or transferee’s interest in any sale, transfer or other disposition of assets permitted under Section 6.04;

(i) any interest of title of a lessor or sublessor under, and Liens arising from Uniform Commercial Code financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases and subleases not prohibited under this Agreement;

(j) licenses, sublicenses, leases or subleases entered into in the ordinary course of business that do not interfere in any material respect with the business of the Parent and its Subsidiaries; and

 

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(k) Liens in favor of customs and revenue Governmental Authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business.

Excess Cash Flow” means, for any fiscal year of the Parent:

(a) Consolidated EBITDA for such fiscal year (determined on the basis of Consolidated Net Income not adjusted to exclude the results of discontinued operations), minus

(b) the sum (without duplication) of:

(i) Consolidated Interest Expense for such fiscal year actually paid in cash by the Parent and its Subsidiaries,

(ii) the net amount, if any, by which the “Contract costs and recognized income not yet billed” (or a similar line item referred to in the consolidated financial statements of the Parent) increased during such fiscal year,

(iii) the aggregate principal amount of Loans, Long-Term Debt and Capital Leases repaid or prepaid by the Parent and its Subsidiaries during such fiscal year, excluding (without duplication):

(A) repayment or prepayment of the Revolving Advances and other revolving extensions of credit (except to the extent that any repayment or prepayment of such Debt is accompanied by a permanent reduction in related commitments or, in the case of Revolving Advances, the aggregate amount of such prepayments exceeds the amount of the Revolving Advances that may be reborrowed under Section 2.01(a)),

(B) repayment or prepayment of the Term Loans, other than scheduled principal payments pursuant to Section 2.07(b), and

(C) repayments or prepayments of Long-Term Debt funded with the proceeds of other Long-Term Debt,

(iv) all income Taxes actually paid in cash by the Parent and its Subsidiaries during such fiscal year,

(v) the sum of:

(A) the Capital Expenditures actually made in cash by the Parent and its Subsidiaries during such fiscal year (except to the extent financed with the proceeds of Debt, Equity Issuances, casualty proceeds, or other proceeds that were not included in determining Consolidated EBITDA for such fiscal year) and

(B) the aggregate amount of cash consideration paid by the Parent and its Subsidiaries during such fiscal year to make Investments and other Acquisitions permitted under Section 6.05,

 

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(vi) to the extent not reducing Consolidated EBITDA for such fiscal year (but without duplication of any other deductions to Excess Cash Flow for such fiscal year), the aggregate amount actually paid in cash by the Parent and its Subsidiaries during such fiscal year in respect of litigation and similar proceedings, earn-out obligations and other obligations and liabilities (other than Debt), including any such amounts paid in respect of items referred to in clauses (j), (k), (l) and (m) of the Consolidated EBITDA definition, and

(vii) to the extent otherwise included in Excess Cash Flow for any fiscal year, any Net Proceeds for which the Parent has delivered a Reinvestment Notice or applied to the repayment of Loans in accordance with Section 2.08(c)(v), plus

(c) to the extent not otherwise included in Excess Cash Flow for such fiscal year, net cash proceeds received by the Parent or its Subsidiaries during such fiscal year from the TransCanada Pipeline Project, either through the collection of receivables or pursuant to the settlement of the TransCanada Pipeline Arbitration (it being understood and agreed that any amounts added back pursuant to this clause (c) with respect to any fiscal year shall, to the extent otherwise included in Excess Cash Flow for any subsequent fiscal year, be deducted in determining Excess Cash Flow for such subsequent fiscal year).

Exchange Act” means the United States Securities and Exchange Act of 1934.

Excluded Property” means:

(a) any Governmental Fueling Facility,

(b) (i) any lease, license or other agreement to which a Loan Party is a party or any of its rights or interests thereunder to the extent and for so long as the grant of a Lien thereon by such Loan Party shall constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract or agreement, and (ii) any other property or interests or rights therein to the extent and for so long as the terms of such property, or any agreement to which any Loan Party is a party to or is otherwise subject to, prohibit or make void or unenforceable the grant of a Lien thereon by such Loan Party, in each case except to the extent any of the foregoing is rendered ineffective, or is otherwise unenforceable, pursuant to Section 9-406, 9-407, 9-408, or 9-409 of the UCC or any other applicable Legal Requirement;

(c) any property to the extent and for so long as the grant of a Lien thereon by any Loan Party is prohibited or made void or unenforceable by any applicable Legal Requirement;

(d) any leasehold interests or any other rights or interests to any leased real property;

(e) any rights or interests in any owned real property, except any parcel of real property owned in fee by a Loan Party, and the improvements thereto, that (together with such improvements) has a book value or fair value of $1,000,000 or more;

(f) any Equity Interests of any Person that is not a Subsidiary of the Parent to the extent prohibited by such Person’s Organizational Documents;

 

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(g) any Voting Stock of any Subsidiary of the Parent that is not a Domestic Subsidiary, except to the extent such Voting Stock does not exceed 66% of all Voting Stock outstanding of such Subsidiary;

(h) (i) any deposit account that is a payroll account or the funds in which are otherwise used, in the ordinary course of business, solely for the payment of salaries and wages, workers’ compensation and similar expenses and (ii) any deposit or securities account maintained at a financial institution or financial intermediary in which the aggregate balance of all deposit accounts maintained at such financial institution or financial intermediary does not exceed $1,000,000, provided that the balance in all the deposit and securities accounts that constitute Excluded Property under this clause (ii) does not exceed $5,000,000 in the aggregate;

(i) any motor vehicles or other assets (other than aircraft) subject to certificates of title, except (A) the assets set forth in the Perfection Certificate and (B) any such motor vehicles or other assets in respect of which an Acceptable Security Interest is required to be granted pursuant to Section 5.09(c);

(j) any other asset with respect to which the Administrative Agent and the Borrower agree that the cost of obtaining an Acceptable Security Interest therein is excessive in relation to the benefit afforded to the Secured Parties thereby;

(k) any property located outside the United States, to the extent the creation of an Acceptable Security Interest therein may not be accomplished by filing of a financing statement in appropriate form in the applicable filing office under the applicable UCC; and

(l) any commercial tort claim with a value of less than $1,000,000;

provided that, in any event, the proceeds received by any Loan Party from the sale, transfer or other disposition of any Excluded Property shall only constitute Excluded Property if such proceeds meet any of the requirements set forth in clauses (a) through (l) above.

Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the Issuing Banks, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), in each case, (i) imposed 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 Lender, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed by the United States of America or any similar Tax imposed by any other jurisdiction in which any Loan Party is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.16), any withholding Tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.13(e) or 2.13(f), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.13(a) and (d) any U.S. Federal withholding Taxes imposed by FATCA.

 

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Existing Credit Facility” means that certain Credit Agreement, dated as of November 20, 2007, by and among the Borrower, the Guarantors, the lenders party thereto and the Agents, as amended, supplemented or otherwise modified by that certain Supplement No. 1, dated as of November 20, 2007, the First Amendment, dated as of March 5, 2008, Supplement No. 2, dated as of March 31, 2008, Supplement No. 3, dated as of March 3, 2009, the Release dated as of March 3, 2009 and Supplement No. 4, dated as of July 17, 2009.

Existing Letters of Credit” means the letters of credit issued under the Existing Credit Facility and set forth on Schedule 1.01(a).

Existing Term Loan” has the meaning set forth in Section 2.01(b).

Extended Revolving Availability Period” means the period from and including the Closing Date to the earliest of (a) the Extended Revolving Maturity Date, (b) the Acceleration Date and (c) the date of termination of the Revolving Commitments in whole pursuant to Section 2.05.

Extended Revolving Commitment” means (a) a “Revolving Commitment” under the Original Credit Agreement that shall have, as of the Restatement Effective Date, been deemed an “Extended Revolving Commitment” under the Amendment and Restatement Agreement, and (b) after the Restatement Effective Date, any Non-Extended Revolving Commitment that shall have been converted to an Extended Revolving Commitment pursuant to Section 2.18. Schedule 2.01 sets forth the Extended Revolving Commitments as of the Restatement Effective Date under the heading “Extended Revolving Commitments.”

Extended Revolving Maturity Date” means June 30, 2014.

Extending Revolving Lender” means any Revolving Lender that has an Extended Revolving Commitment or holds a Revolving Advance or participation in any Letter of Credit in respect of its Extended Revolving Commitment. Schedule 2.01 sets forth the Extending Revolving Lenders as of the Restatement Effective Date under the heading “Extending Revolving Lenders.”

FATCA” means Sections 1471 through 1474 of the Code and any regulations or official interpretations thereof (including any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b) of the Code).

Facility” means the Term Loan Facility or the Revolving Credit Facility, as the context may require.

FCPA” means the United States Federal Corrupt Practices Act of 1977.

Federal Funds Effective Rate” means, for any day, a fluctuating interest 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 for

 

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such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (New York time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any of its successors.

Fee Letters” means (a) the administrative agent fee letter agreement dated March 11, 2010, among the Borrower, the Parent and Crédit Agricole CIB, and (b) the engagement letter dated September 27, 2012, among the Borrower, the Parent and Crédit Agricole CIB.

Financial Letter of Credit” means a letter of credit qualifying as a “financial standby letter of credit” under 12 CFR Part 3, Appendix A, Section 4(a)(8)(i) or any successor U.S. Comptroller of the Currency regulation.

Financial Officer” for any Person means the Chief Financial Officer, Treasurer or other senior financial officer of such Person.

Foreign Government Scheme or Arrangement” has the meaning set forth in Section 4.16(d).

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

Foreign Plan” has the meaning set forth in Section 4.16(d).

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to each Issuing Bank, (a) such Defaulting Lender’s Applicable Percentage (determined, for the avoidance of doubt, without giving effect to any adjustment provided for in Section 2.17(a)(iv)) of the outstanding Letter of Credit Exposure attributable to Letters of Credit issued by such Issuing Bank less (b) any portion of the amount calculated under clause (a) above the risk participation with respect to which has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP” means United States generally accepted accounting principles applied on a consistent basis.

 

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Governmental Authority” means the government of the United States of America 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).

Governmental Fueling Facility” means any fuel storage and dispensing facility constructed, developed, owned or operated by the Parent or any of its Subsidiaries that is located on the real property owned by any Governmental Authority (including all equipment and related services, and all accessories, accessions, enhancements and augmentations thereto), together with any agreement between the Parent or any of its Subsidiaries and any Governmental Authority relating thereto, including any real property lease agreement, any service agreement and any operations and maintenance agreement, and all rights and interests of the Parent or any of its Subsidiaries under any of the foregoing and all proceeds thereof; provided that such agreements provide for the reimbursement, directly or indirectly, by the applicable Governmental Authority of expenditures in connection with the construction, development and/or operation and maintenance of such facility.

Granting Lender” has the meaning set forth in Section 10.06(g).

Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable 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 Debt or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the owner of such Debt or other obligation of the payment or performance thereof or to protect such owner against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee 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 Guarantee 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. The term “Guarantee” as a verb has a corresponding meaning.

Guarantor Claims” has the meaning set forth in Section 8.09.

Guarantor Payment” has the meaning set forth in Section 8.17.

 

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Guarantors” means (a) the Parent and each of the Subsidiaries indicated as such on Schedule 4.11 and (b) any other Person that becomes a guarantor of all or a portion of the Obligations pursuant to Section 5.10.

Hazardous Material” means (a) any petroleum products or byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material, substance or waste that is prohibited, limited or regulated by or pursuant to any Environmental Law.

Hedging Arrangement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Hedging Counterparty” means any Lender or any Affiliate thereof that is party to a Hedging Arrangement with the Parent or any of its Subsidiaries.

Honor Date” has the meaning set forth in Section 2.03(c).

Incremental Term Commitment” means, as to each Lender, its obligation to make a single Incremental Term Loan to the Borrower pursuant to Section 2.01(c) on the Restatement Effective Date, in an aggregate principal amount not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 as its “Incremental Term Commitment.” The aggregate amount of the Incremental Term Commitments as of the Restatement Effective Date is $60,000,000.

Incremental Term Lender” means (a) on the Restatement Effective Date, any Lender that has an Incremental Term Commitment at such time, and (b) at any time after the Restatement Effective Date, any Lender that holds an Incremental Term Loan at such time

Incremental Term Loan” has the meaning set forth in Section 2.01(c).

Indemnified Liabilities” has the meaning set forth in Section 10.05.

 

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Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

Indemnitee” has the meaning set forth in Section 10.05.

Information” has the meaning set forth in Section 10.07.

InfrastruX” means InfrastruX Group, LLC, a Delaware limited liability company.

InfrastruX Merger” means the acquisition by the Borrower of all outstanding Equity Interests of InfrastruX, including the mergers contemplated by the InfrastruX Merger Agreement in connection therewith.

InfrastruX Merger Agreement” means that certain Amended and Restated Agreement and Plan of Merger, dated as of June 30, 2010, among the Parent, Co Merger Sub I, Inc., a Washington corporation and Wholly-Owned Subsidiary of the Parent, Ho Merger Sub II, LLC, a Delaware limited liability company and Wholly-Owned Subsidiary of the Parent, and InfrastruX, as such agreement is in effect on the Closing Date.

Intellectual Property Security Agreement” means the Intellectual Property Security Agreement dated as of June 30, 2010, among one or more of the Loan Parties and the Collateral Agent for the benefit of the Secured Parties.

Interest Coverage Ratio” means, as of the last day of any fiscal quarter, the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in each case for the four fiscal quarter period then ended.

Interest Period” means, for each Eurocurrency Rate Loan comprising part of a Borrowing, initially the period commencing on the date of such Eurocurrency Rate Loan or the date of the Conversion of any existing Base Rate Loan into such Eurocurrency Rate Loan and ending on the last day of the period selected by the Borrower pursuant to the provisions below and Section 2.02(b) and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below and Section 2.02(b). The duration of each such Interest Period shall be one, two, three, six, nine or twelve months, as the Borrower may select; provided, however, that:

(a) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;

(b) any Interest Period which 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 in which it would have ended if there were a numerically corresponding day in such calendar month; and

 

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(c) the Borrower may not select any Interest Period for (i) any Revolving Advance made by a Non-Extending Revolving Lender which ends after the Revolving Maturity Date, (ii) any Revolving Advance made by an Extending Revolving Lender which ends after the Extended Revolving Maturity Date or (iii) any Term Loan which ends after the Term Maturity Date.

Interim Financial Statements” means the unaudited condensed consolidated balance sheets of the Parent and its Subsidiaries as of (a) March 31, 2012 and (b) June 30, 2012, in each case, together with the related condensed consolidated statements of operations and comprehensive income (loss) and cash flows of the Parent and its Subsidiaries, including the notes thereto.

Interim Period” means the period from the Closing Date to and including the earlier of (a) September 30, 2010; provided that the Total Leverage Ratio as of such date shall be equal to or less than 3.00 to 1.00 and the Parent shall have delivered to the Administrative Agent the financial statements with respect to the fiscal quarter then ended pursuant to Section 5.06(b) and the related Compliance Certificate pursuant to Section 5.06(c), or (b) December 30, 2010. The parties hereto acknowledge that the Interim Period has expired prior to the Restatement Effective Date.

Investment” of any Person means any investment of such Person so classified under GAAP, and whether or not so classified, any loan, advance (other than intercompany transactions, prepayments or deposits in each case made in the ordinary course of business) or extension of credit that constitutes Debt of the Person to whom it is extended or contribution of capital by such Person; and any stocks, bonds, mutual funds, partnership interests, notes (including structured notes), debentures or other securities owned by such Person; provided, that, to the extent otherwise included therein, the term “Investment” shall not include any purchase of inventory, supplies or equipment made by such Person on behalf of any customer of such Person in the ordinary course of business. The amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the values of such Investment.

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, Inc. (or such later version thereof as may be in effect at the time of issuance).

Issuing Bank” means, as the context may require, Crédit Agricole CIB, Capital One, N.A., and any Revolving Lender appointed as an “Issuing Bank” pursuant to Section 2.03(l).

LC Advance” means, with respect to each Revolving Lender, such Revolving Lender’s funding of its participation in any LC Disbursement.

LC Availability Termination Date” means the earliest of (a) the 60th day prior to the Extended Revolving Maturity Date, (b) the Acceleration Date, and (c) the date of termination of the Extended Revolving Commitments in whole pursuant to Section 2.05.

 

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LC Cash Collateral Account” means special interest bearing cash collateral accounts pledged by the Borrower to the Collateral Agent for the benefit of the Secured Parties containing cash deposited pursuant to Section 2.03(g), 2.05, or 7.07 or any other provision hereof, to be maintained by the Collateral Agent in accordance herewith and bear interest or be invested in the Collateral Agent’s reasonable discretion.

LC Credit Extension” means the issuance of any Letter of Credit, or extension of the expiry date thereof, or the increase of the amount thereof.

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

Legal Requirements” means, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, guidelines, regulations, ordinances, codes 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, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lenders” means the Persons (other than the Borrower, the Guarantors, any Agent (solely in its capacity as such) and any Issuing Bank (solely in its capacity as such)) party to the Amendment and Restatement Agreement, any other Person that is a “Lender” under the Original Credit Agreement as of the Restatement Effective Date pursuant to the Register in effect on such date and any other Person that has become a party hereto pursuant to an Assignment and Acceptance (other than any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance or pursuant to Section 2.17).

Letter of Credit” means any Performance Letter of Credit, Financial Letter of Credit or Documentary Letter of Credit issued hereunder. Each Existing Letter of Credit, as of the Closing Date, shall be a Letter of Credit deemed to have been issued pursuant to this Agreement and shall constitute a portion of the Letter of Credit Exposure. Letters of Credit may be denominated in Dollars or in an Alternative Currency.

Letter of Credit Application” means an application and agreement for the issuance, amendment or extension of a Letter of Credit in the form from time to time in use by the applicable Issuing Bank.

Letter of Credit Documents” means, with respect to any Letter of Credit, such Letter of Credit, the related Letter of Credit Request and Letter of Credit Application and any agreements, documents, and instruments entered into in connection with or relating to such Letter of Credit.

Letter of Credit Exposure” means, at any time, the sum of (a) the Dollar Equivalent of the aggregate undrawn maximum face amount of each Letter of Credit outstanding at such time and (b) the Dollar Equivalent of the aggregate unpaid amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower or refinanced with a Revolving Borrowing. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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Letter of Credit Obligations” means any obligations of the Borrower under this Agreement in connection with the Letters of Credit, including the Reimbursement Obligations.

Letter of Credit Request” means a request to issue, increase the stated amount of or extend the expiration of any Letter of Credit, substantially in the form of Exhibit D.

Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge, assignment, preference, deposit arrangement, encumbrance, charge, security interest, priority or other security or preferential arrangement of any kind or nature whatsoever, whether voluntary or involuntary in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, Capital Lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

Liquidity” means, as of any date of determination, (a) the amount that the Borrower is entitled to borrow as Revolving Advances hereunder (after giving effect to the Revolving Outstanding Amount) plus (b) the amount of unrestricted cash and Cash Equivalents of the Parent and its Subsidiaries.

Loan” means, as the context may require, a Revolving Advance or a Term Loan.

Loan Documents” means this Agreement, any Notes, if any, issued pursuant to Section 2.04, the Letter of Credit Documents, the Security Documents, the Fee Letters, the Perfection Certificate, the Supplemental Perfection Certificates, the Amendment and Restatement Agreement and each other certificate, agreement, instrument or other document executed and delivered, in each case by or on behalf of any Loan Party pursuant to the foregoing; provided, however, that for purposes of Section 10.01, “Loan Documents” means this Agreement, the Security Documents and the Amendment and Restatement Agreement.

Loan Party” means the Borrower or any Guarantor.

Long-Term Debt” means any Debt that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability.

Majority Lenders” means, as of the date of determination, Lenders holding more than 50% of the sum of (a) the aggregate principal amount of the Loans and participations in the Letter of Credits at such time plus (b) the unused Commitments at such time; provided that, subject to Section 10.01, the Commitments, Loans and participations in the Letters of Credit of each Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.

Majority Revolving Lenders” means, as of any date of determination, Revolving Lenders holding more than 50% of the sum of (a) the Revolving Outstanding Amount at such time and (b) the aggregate unused Revolving Commitments at such time; provided that the

 

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unused Revolving Commitment of, and the portion of the Revolving Outstanding Amount held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Revolving Lenders.

Majority Term Lenders” means, as of any date of determination, Term Lenders holding more than 50% of the Term Loan Facility on such date.

Material Adverse Effect” means a material adverse effect on (a) the business, results of operations, properties or condition (financial or otherwise) of the Parent and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party or (c) the validity or enforceability against any Loan Party of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders under the Loan Documents.

Material Contracts” means (a) the 6.5% Indenture and (b) the Oncor MSA.

Material Subsidiary” means any Subsidiary of the Parent that is a Domestic Subsidiary (a) the net book value of the assets of which is at least $5,000,000 or (b) the revenues (excluding any intercompany revenues) of which equal to $10,000,000 for the most recent period of four consecutive fiscal quarters of the Parent for which financial statements have been delivered pursuant to Section 5.06(a) or 5.06(b) (or, prior to the first delivery of any such financial statements, four consecutive fiscal quarters of the Parent most recently ended prior to the Closing Date); provided that if (i) the combined book value of the assets of the Domestic Subsidiaries that would not constitute Material Subsidiaries pursuant to the foregoing provisions of this definition exceeds $25,000,000 or (ii) the combined revenues (excluding any intercompany revenues) of the Domestic Subsidiaries that would not constitute Material Subsidiaries pursuant to the foregoing provisions of this definition exceed $40,000,000 for any such most recent period of four consecutive fiscal quarters, then one or more of such excluded Subsidiaries shall be deemed to be Material Subsidiaries for purposes of Section 5.10 in descending order based on the book value of their assets until such excess shall have been eliminated.

Maximum Rate” means the maximum non-usurious interest rate under applicable Legal Requirements (determined under such laws after giving effect to any items which are required by such laws to be construed as interest in making such determination, including without limitation if required by such laws, certain fees and other costs).

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a national credit rating organization.

Mortgaged Property” means each parcel of real property owned in fee by a Loan Party that is not an Excluded Property and with respect to which such Loan Party shall have executed and delivered to the Collateral Agent a Mortgage. The Mortgaged Properties as of the Restatement Effective Date are set forth in the Perfection Certificate.

Mortgages” means a mortgage, deed of trust or other security document granting a Lien on any Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, to secure the Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Collateral Agent.

 

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

Net Debt Proceeds” means cash proceeds received from the issuance of any Debt not permitted under Section 6.02, net of underwriting discounts and commissions and out-of-pocket costs and expenses and disbursements paid or incurred by the Parent or any of its Subsidiaries in connection therewith in favor of any Person not an Affiliate of the Parent or any other Loan Party.

Net Proceeds” means proceeds in cash, checks or other cash equivalent financial instruments (including Cash Equivalents) as and when received by the Person making an Asset Disposition and insurance proceeds or condemnation awards (and payments in lieu thereof) received on account of an Event of Loss, net of: (a) in the event of an Asset Disposition (i) the direct costs relating to such Asset Disposition, excluding amounts payable to any Loan Party or any Affiliate of a Loan Party, (ii) sale, use or other transaction Taxes incurred as a result thereof, and (iii) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Debt (other than the Loans) secured by a Lien on the property which is the subject of such Asset Disposition, (iv) any amounts required to be deposited into escrow in connection with the closing of such Asset Disposition (until any such amounts are released therefrom to the Parent or any of its Subsidiaries), (v) the amount of any reserve for adjustment in respect of the sale price of such asset or assets as determined in accordance with GAAP, (vi) appropriate amounts to be provided by the Parent or any of its Subsidiaries as a reserve against any liabilities associated with such Asset Disposition, as determined in accordance with GAAP, and (vii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition, so long as any such distribution or other payment is made on a pro rata basis to the interest of such minority interest holder in such Subsidiary or joint venture and (b) in the event of an Event of Loss, (i) all money actually applied or to be applied to repair or reconstruct the damaged property or property affected by the condemnation or taking, (ii) all of the costs and expenses incurred in connection with the collection of such proceeds, awards or other payments, and (iii) any amounts retained by or paid to Persons having superior rights to such proceeds, awards or other payments. To the extent any such proceeds received by any Foreign Subsidiary may not be distributed as a cash dividend or a similar cash distribution to a Loan Party without the Parent and its Subsidiaries incurring adverse tax consequences, as reasonably determined by the Parent, such proceeds shall be deemed (unless otherwise agreed by the Parent), so long as no Event of Default shall have occurred and be continuing at the time of the receipt thereof, not to constitute “Net Proceeds” for purposes of this Agreement; provided that in the event an Event of Default shall have occurred and be continuing at any time after the receipt thereof, such proceeds, to the extent not theretofore expended by such Foreign Subsidiary in the conduct of its business or operations or for any other purpose permitted by this Agreement, shall be deemed to have been received by such Foreign Subsidiary at the time of the occurrence of such Event of Default.

New Revolving Borrowing Availability Amount” means, at any time:

 

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(a) until the New Revolving Borrowing Availability Trigger Date, an amount at such time equal to the lesser of (x) $50,000,000 and (y) the sum of:

(A) the lesser of (i) $25,000,000 and (ii) the sum of (x) the aggregate amount of the prepayments of the Revolving Borrowings made after the Restatement Effective Date pursuant to Section 2.08(b)(i) plus (y) 50% of the aggregate amount of the prepayments of the Revolving Borrowings made after the Restatement Effective Date pursuant to Section 2.08(c)(v) or (c)(vii); plus

(B) 50% of the aggregate amount of the prepayments of the Revolving Borrowings made after the Restatement Effective Date pursuant to Section 2.08(c)(v) or (c)(vii); and

(b) on and after the New Revolving Borrowing Availability Trigger Date, an amount equal to (i) until the first delivery of the consolidated financial statements of the Parent evidencing a Total Leverage Ratio as of the end of the most recent fiscal quarter covered by such consolidated financial statements of 2.25 to 1.00 or lower, $50,000,000 and (ii) thereafter, $75,000,000.

New Revolving Borrowing Availability Trigger Date” means the later to occur of (a) March 31, 2013 and (b) the first date after the Restatement Effective Date as of which the sum of (i) the Net Proceeds with respect to Asset Dispositions and (ii) the Equity Issuance Proceeds with respect to Equity Issuances, in each case, received by the Parent or any of its Subsidiaries after the Restatement Effective Date, shall be at least $90,000,000.

Non-Extended Revolving Commitment” means, subject to Section 2.18, a “Revolving Commitment” under the Original Credit Agreement that has not, as of the Restatement Effective Date, been deemed to be an “Extended Revolving Commitment” under the Amendment and Restatement Agreement. Schedule 2.01 sets forth the Non-Extended Revolving Commitments as of the Restatement Effective Date under the heading “Non-Extended Revolving Commitments.”

Non-Extending Revolving Lender” means any Revolving Lender that has a Non-Extended Revolving Commitment or holds a Revolving Advance or participation in any Letter of Credit in respect of its Non-Extended Revolving Commitment. Schedule 2.01 sets forth the Non-Extending Revolving Lenders as of the Restatement Effective Date under the heading “Non-Extending Revolving Lenders.”

Note” means a promissory note made by the Borrower in favor of a Lender (a) in the case of the Revolving Credit Facility, substantially in the form of Exhibit E-1 and (b) in the case of the Term Loan Facility, substantially in the form of Exhibit E-2.

Notice of Borrowing” means a notice of borrowing, substantially in the form of the attached Exhibit F signed by a Responsible Officer of the Borrower.

Notice of Conversion or Continuation” means a notice of conversion or continuation, substantially in the form of the attached Exhibit G, signed by a Responsible Officer of the Borrower.

 

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Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit or any Hedging Arrangement to which a Lender or its Affiliate is a party, 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 Loan Party or any Affiliate thereof 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.

OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

Oncor MSA” means the Master Services Agreement dated as of June 12, 2008, between InfrastruX and Oncor Electric Delivery Company LLC, a Delaware limited liability company.

Original Credit Agreement” means the Credit Agreement, dated as of June 30, 2010, by and among the Borrower, the Guarantors, the lenders party thereto and the Agents, as amended by Amendment No. 1 to Credit Agreement, dated as of March 4, 2011, and Amendment No. 2 to Credit Agreement, dated as of March 19, 2012.

Organizational 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 applicable, any certificate or articles of formation or organization of such entity.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

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 Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).

 

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Overnight Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate and (b) an overnight rate determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, in accordance with banking industry rules on interbank compensation.

Parent” means Willbros Group, Inc., a Delaware corporation.

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

Participant” has the meaning specified in Section 10.06(d).

Participant Register” has the meaning assigned to such term in Section 10.06(d).

Patriot Act” has the meaning set forth in Section 10.18.

PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

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 Parent 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 plan years.

Perfection Certificate” means the Perfection Certificate dated as of the Restatement Effective Date and delivered in connection with the Amendment and Restatement Agreement.

Performance Letter of Credit” means a letter of credit qualifying as a “performance-based standby letter of credit” under 12 CFR Part 3, Appendix A, Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation.

Permitted Consideration Payments” means, in connection with any Investment or Acquisition, payments on account of (a) cash in lieu of fractional shares of Equity Interests of the Parent, (b) working capital adjustments, (c) repayments of short-term working capital indebtedness and (d) consideration that represents turn-over or pass-through of payments received from customers of any Person that is the subject to such Investment or Acquisition as a result of construction, development, operation or maintenance projects (provided that such projects were not entered into in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired).

Permitted Liens” has the meaning set forth in Section 6.01.

Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof.

 

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Plan” means any Pension Plan or Multiemployer Plan.

Platform” has the meaning specified in Section 5.06.

Pledge Agreement” means the Pledge Agreement dated as of June 30, 2010, among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties.

Potential Defaulting Lender” means, at any time, a Lender that has, or whose parent company has, a non-investment grade rating from Moody’s or S&P or another nationally recognized rating agency. Any determination that a Lender is a Potential Defaulting Lender will be made by the Administrative Agent in its sole discretion acting in good faith.

Prime Rate” means a fluctuating rate of interest per annum as shall be in effect from time-to-time equal to the prime rate of interest publicly announced by the Administrative Agent from time to time as its prime rate in effect at its principal office in New York City, whether or not the Borrower has notice thereof, when and as said prime rate changes.

Projections” means the Parent’s forecasted consolidated (a) balance sheets, (b) profit and loss statements, (c) cash flow statements; and (d) capitalization statements as of the end of or for fiscal years 2013 and 2014, and for each of the remaining fiscal quarters of 2012, together with appropriate supporting details and a statement of underlying assumptions.

Project Specific Co-Development Arrangement” means any arrangement pursuant to which the Parent or any of its Subsidiaries enters into an alliance, co-development, co-operation, joint venture or any similar agreement with any other Person pursuant to which the parties thereto agree to co-operate or otherwise work jointly on providing engineering, procurement, construction, development and/or maintenance services with respect to a specific project for a specific customer.

Public Lender” has the meaning specified in Section 5.06.

Qualified Investment” means expenditures incurred to acquire or repair assets owned (or to be owned) by the Parent or any Subsidiary of the same type as those subject to such Reinvestment Event or equipment, real property, or other fixed or capital assets owned (or to be owned) by and useful in the business of the Parent and its Subsidiaries.

Register” has the meaning specified in Section 10.06(c).

Regulations T, U, X and D” means Regulations T, U, X, and D of the Federal Reserve Board, as the same is from time-to-time in effect, and all official rulings and interpretations thereunder or thereof.

Reimbursement Obligations” means all of the obligations of the Borrower to reimburse an Issuing Bank for amounts paid by such Issuing Bank under Letters of Credit as established by the Letter of Credit Applications and Section 2.03, including the obligation to reimburse LC Disbursements.

 

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Reinvestment Deferred Amount” means (a) with respect to an Event of Loss, the aggregate Net Proceeds received by the Parent or any of its Subsidiaries in connection with such Event of Loss that are duly specified in a Reinvestment Notice as not being required to be initially applied as set forth in Section 2.08(c)(v) as a result of the delivery of such Reinvestment Notice, and (b) with respect to an Asset Disposition, the aggregate Net Proceeds received by the Parent or any of its Subsidiaries in connection with such Asset Disposition that are duly specified in a Reinvestment Notice as not being required to be initially applied as set forth in Section 2.08(c)(v) as a result of the delivery of such Reinvestment Notice.

Reinvestment Event” means any Asset Disposition or Event of Loss in respect of which the Parent has delivered a Reinvestment Notice.

Reinvestment Notice” means a written notice executed by the Parent stating that no Default or Event of Default has occurred and is continuing and stating that the Parent and its Subsidiaries intend and expect to use all or a specified portion of the Net Proceeds of a Reinvestment Event specified in such notice to make a Qualified Investment.

Reinvestment Prepayment Amount” means with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less the portion, if any, thereof expended prior to the relevant Reinvestment Prepayment Date to make a Qualified Investment.

Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the earlier of (a) the date occurring 180 days after such Reinvestment Event and (b) the date on which the Parent shall have determined not to make a Qualified Investment in respect of such Reinvestment Event.

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.

Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure, facility or fixture.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA.

Response” has the meaning set forth in Section 4.13(b).

Responsible Officer” means (a) with respect to any Person that is a corporation, such Person’s Chief Executive Officer, President, Chief Financial Officer, Treasurer or Vice President, (b) with respect to any Person that is a limited liability company, if such Person has officers, then such Person’s Chief Executive Officer, President, Chief Financial Officer, or Vice President, and if such Person is managed by members, then a Responsible Officer of such Person’s managing member, and if such Person is managed by managers, then a manager (if such manager is an individual) or a Responsible Officer of such manager (if such manager is an entity), and (c) with respect to any Person that is a general partnership, limited partnership or a limited liability partnership, a Responsible Officer of such Person’s general partner or partners.

 

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Restatement Effective Date” has the meaning set forth in the Amendment and Restatement Agreement.

Restricted Payment” means: (a) the declaration or making by the Parent or any Subsidiary of any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of such Person; and (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Parent or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Parent or any Subsidiary.

Revaluation Date” means each of the following: (a) the Closing Effective Date and (b) so long as any Letter of Credit is denominated in an Alternative Currency, (i) the last Business Day of each calendar month, (ii) the date of any LC Credit Extension, (iii) the date of any reduction of the Revolving Commitments, (iv) each date of any payment by any Issuing Bank under any Letter of Credit denominated in an Alternative Currency, and (v) such additional dates as the Administrative Agent or the Issuing Banks shall determine or the Majority Revolving Lenders shall require.

Revolving Advance” has the meaning specified in Section 2.01(a).

Revolving Availability Period” means the period from and including the Closing Date to the earliest of (a) the Revolving Maturity Date, (b) the Acceleration Date and (c) the date of termination of the Revolving Commitments in whole pursuant to Section 2.05.

Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Advances of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Revolving Lenders pursuant to Section 2.01(a).

Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Advances to the Borrower pursuant to Section 2.01(a) and (b) purchase participations in Letters of Credit pursuant to Section 2.03, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 as its Non-Extended Revolving Commitment or its Extended Revolving Commitment, as the case may be, or in the Assignment and Acceptance, pursuant to which such Lender acquires its Non-Extended Revolving Commitment or its Extended Revolving Commitment, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including pursuant to Section 2.18). The initial aggregate amount of the Extended Revolving Commitments and the Non-Extended Revolving Commitments as of the Restatement Effective Date is $175,000,000.

Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

Revolving Credit Facility Arranger” means Crédit Agricole CIB.

 

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Revolving Lender” means any Lender that has a Revolving Commitment or holds a Revolving Advance or participation in any Letter of Credit.

Revolving Maturity Date” means June 30, 2013.

Revolving Outstanding Amount” means, as of any date of determination, the sum of (a) the aggregate outstanding principal amount of all Revolving Advances plus (b) the Letter of Credit Exposure.

Revolving Sublimit” means (a) during the Interim Period, an aggregate amount not to exceed $31,500,000; provided that, notwithstanding anything to the contrary set forth herein, the proceeds of any Revolving Advances made during the Interim Period may only be used by the Parent and its Subsidiaries to satisfy their obligations under the 6.5% Convertible Senior Notes arising as a result of any holder thereof exercising its right to require the Parent to purchase such Notes, and (b) thereafter, in an aggregate amount not to exceed $150,000,000; provided that, notwithstanding anything to the contrary set forth herein, if the Interim Period terminates prior to December 30, 2010, $31,500,000 of the Revolving Sublimit shall be reserved, at any time following the date of such termination and on or prior to December 30, 2010, solely for the Revolving Advances the proceeds of which will be used by the Parent and its Subsidiaries to satisfy their obligations under the 6.5% Convertible Senior Notes arising as a result of any holder thereof exercising its right to require the Parent to purchase such Notes.

S&P” means Standard & Poor’s Rating Agency Group, a division of McGraw Hill Companies, Inc., or any successor thereto that is a national credit rating organization.

Sale and Leaseback Transaction” means a transaction or series of transactions pursuant to which the Parent or any Subsidiary shall sell or transfer to any Person (other than the Parent or a Subsidiary) any property, whether now owned or hereafter acquired, and, as part of the same transaction or series of transactions, the Parent or such Subsidiary shall rent or lease as lessee, or similarly acquire the right to possession or use of, such property.

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 determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

SEC” means the Securities and Exchange Commission, and any successor entity.

SEC/DOJ Investigation” means the investigation and related charges brought by the SEC and the U.S. Department of Justice against the Parent and its Subsidiaries in connection with the alleged violations of the Foreign Corrupt Practices Act, the Securities Act and the Exchange Act, resulting primarily from operations in Bolivia, Ecuador and Nigeria.

Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Issuing Banks, the Hedging Counterparties and the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.

 

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Securities Act” means the United States Securities Act of 1933.

Security Agreement” means the Security Agreement dated as of June 30, 2010, among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties.

Security Documents” means the Security Agreement, the Pledge Agreement, the Mortgages, the Account Control Agreements, and each other security, pledge or other collateral agreement executed by any Loan Party in favor of the Collateral Agent.

Solvent” means, as to any Person, on the date of any determinations, that on such date (a) the fair value of the property of such Person is greater than the total amount of debts and other liabilities (including contingent 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 and other liabilities (including contingent liabilities) as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities (including contingent liabilities) as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities (including contingent liabilities) beyond such Person ‘s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in, and is not about to engage in, business or a transaction for which such Person’s property would constitute unreasonably small capital.

SPC” has the meaning set forth in Section 10.06(g).

Specified Currency” has the meaning set forth in Section 10.16.

Specified Revolving Borrowing” means any Revolving Borrowings the proceeds of which are used by the Borrower for payment of principal, premium (if any), fees and other amounts due or outstanding in respect of the 6.5% Convertible Senior Notes.

Spot Rate” for a currency means the rate determined by the Administrative Agent or the applicable Issuing Bank, as applicable, 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 at approximately 11:00 a.m. (New York time) on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the applicable Issuing Bank may obtain such spot rate from another financial institution designated by the Administrative Agent or such Issuing Bank if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the applicable Issuing Bank may use such spot rate quoted 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.

Stockholders’ Equity” means, as of any date of determination, consolidated stockholders’ equity of the Parent and its Subsidiaries as of that date determined in accordance with GAAP.

Subsidiary” of a Person means (a) any Person the accounts of which would be consolidated with those of the Parent in the Parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date and (b) any

 

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corporation, association, partnership or other business entity of which more than 50% of the outstanding Equity Interests having by the terms thereof ordinary voting power under ordinary circumstances to elect a majority of the board of directors or Persons performing similar functions (or, if there are no such directors or Persons, having general voting power) of such entity (irrespective of whether at the time Equity Interests of any other class or classes of such entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person. Unless otherwise indicated herein, each reference to the term “Subsidiary” shall mean a Subsidiary of the Parent.

Supplemental Perfection Certificate” means a Supplemental Perfection Certificate substantially in the form of Exhibit J signed by a Responsible Officer of the Parent.

Syndication Agent” means UBS Securities LLC in its capacity as syndication agent for the Facilities.

Synthetic Lease” means, as to any Person, any lease of property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee is deemed to own the property so leased for U.S. Federal income tax purposes, other than any such lease under which such Person is the lessor.

Tangible Net Worth” means, as of any date of determination, for the Parent and its Subsidiaries on a consolidated basis, (a) the Stockholders’ Equity as of such date minus (b) the goodwill of the Parent and its Subsidiaries as of such date; provided that to the extent the Stockholders’ Equity shall have been affected (i) on and after December 31, 2010, by any amounts attributable to the net Tax liabilities for repatriation by any CFC to the Parent, the Borrower or any of its Domestic Subsidiaries of any cash earned from outside the United States of America or (ii) by any amounts attributable to the WAPCo Settlement, such amounts, in each case, shall be added back to the Stockholders’ Equity for purposes of determining the Tangible Net Worth.

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.

Term Borrowing” means a borrowing consisting of Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period, outstanding pursuant to Section 2.01(b) or made pursuant to 2.01(c).

Term Lender” means, at any time, any Lender that holds a Term Loan at such time.

Term Loan” has the meaning specified in Section 2.01(c).

Term Loan Facility” means (a) at any time on or prior to the Restatement Effective Date, the aggregate amount of the Incremental Term Commitments at such time plus the aggregate principal amount of the Existing Term Loans outstanding at such time and (b) at any time after the Restatement Effective Date, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.

 

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Term Loan Facility Arranger” means Crédit Agricole CIB.

Term Maturity Date” means June 30, 2014.

Term Outstanding Amount” means, as of the date of determination, the aggregate outstanding principal amount of all Term Loans.

Total Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Debt as of such date plus (ii) to the extent not included in clause (i) above, all reimbursement obligations (contingent or otherwise) as of such date in respect of Financial Letters of Credit issued upon the application of the Parent or any of its Subsidiaries or upon which the Parent or any of its Subsidiaries is an account party, but only to the extent the aggregate amount of such reimbursement obligations is in excess of $15,000,000, to (b) Consolidated EBITDA for the four fiscal quarter period most recently ended on or prior to such date.

Transactions” means, collectively, (a) the entering by the Loan Parties into Loan Documents to which they are to be a party, and (b) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.

TransCanada Pipeline Arbitration” means matter no. 17247/VRO pending in the International Court of Arbitration of the International Chamber of Commerce; WILLBROS CONSTRUCTION (US), LLC, Claimant/Counterclaim Respondent, and TRANSCANADA KEYSTONE PIPELINE, L.P., Respondent/Counterclaimant.

TransCanada Pipeline Project” means project undertaken and performed by Willbros Construction (US), LLC, a Wholly-Owned Subsidiary of the Borrower, under Agreement No. 5948 between TransCanada Keystone Pipeline, LP and Willbros Construction (US), LLC for Construction of US Groups 3 & 4 Pump Stations for the Keystone Oil Pipeline Project, dated as of September 18, 2008, and any change orders or amendments thereto.

Type” has the meaning set forth in Section 1.04.

UCC” means the Uniform Commercial Code as in effect on the Closing Date in the State of New York and any successor statute. To the extent perfection of the Collateral Agent’s security interest in any Collateral is governed by the laws of another jurisdiction, “UCC” means (as the context requires) the Uniform Commercial Code as in effect in the applicable jurisdiction.

Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

Unreimbursed Amount” has the meaning set forth in Section 2.03(c).

Voting Stock” means, with respect to any Person, Equity Interests of such Person of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of members of the Board of Directors (or Persons performing similar functions) of such Person.

 

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WAPCo Settlement” means the Settlement Agreement, dated as of March 29, 2012, between West African Gas Pipeline Company Limited, a private company incorporated under the laws of Bermuda, Willbros Global Holdings, Inc., a company incorporated under the laws of Delaware and a Subsidiary, and Parent.

Wholly-Owned Subsidiary” of any Person shall mean a Subsidiary of such Person of which Equity Interests representing 100% of the Equity Interests (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable Legal Requirements) are, at the time any determination is being made, owned, controlled or held by such Person or one or more Wholly-Owned Subsidiaries of such Person or by such Person and one or more Wholly-Owned Subsidiaries of such Person.

Withholding Agent” means any Loan Party or the Administrative Agent.

Section 1.02 Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.

Section 1.03 Accounting Terms; Pro Forma Calculations.

(a) For purposes of this Agreement, all accounting terms not otherwise defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, as in effect from time to time; provided that, notwithstanding any other provision contained herein, all accounting terms and all financial data shall be construed and construed without giving effect to any change in GAAP occurring after the Closing Date as a result of the adoption of any proposals set forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a Capital Lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date.

(b) If at any time any Accounting Change (as defined below) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Parent or the Majority Lenders shall so request, the Administrative Agent, the Lenders and the Parent shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change (subject to the approval of the Majority Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such Accounting Change and (ii) the Parent shall provide to the Administrative Agent and the Lenders a reconciliation between calculations of such ratio or requirement made before and after giving effect to such Accounting Change. “Accounting Changes” means (A) changes in accounting principles required by GAAP and implemented by the Parent and (B) changes in accounting principles recommended by the Parent’s accountants and implemented by the Parent.

 

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(c) All pro forma computations permitted to be made hereunder giving effect to any Acquisition, Asset Disposition or other transaction (i) shall be calculated after giving pro forma effect thereto (and, in the case of any pro forma computations made hereunder to determine whether such Acquisition, Asset Disposition or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.06(a) or 5.06(b) and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Debt, all in accordance with Article 11 of Regulation S-X under the Securities Act and (ii) in the case of any Acquisition may reflect pro forma adjustments for cost savings and synergies (net of continuing associated expenses) to the extent such cost savings and synergies are factually supportable and have been realized or are reasonably expected to be realized within 365 days following such Acquisition; provided that (A) in the case of any such pro forma computation made pursuant to the final paragraph of the definition of the term “Consolidated EBITDA”, the Parent shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Parent setting forth, in reasonable detail, the pro forma computations made and, in the case of any such computation reflecting any such cost savings and synergies, certifying that such cost savings and synergies meet the requirements set forth in clause (ii) above, together with reasonably detailed evidence in support thereof, and (B) if any cost savings and synergies included in any pro forma calculations based on the expectation that such cost savings or synergies will be realized within 365 days following such Acquisition shall at any time cease to be reasonably expected to be so realized within such period, then on and after such time pro forma calculations required to be made hereunder shall not reflect such cost savings or synergies.

Section 1.04 Classes and Types of Loans. Loans are distinguished by “Class” and “Type”. The “Class” of a Loan refers to the determination of whether such Loan is a Term Loan or a Revolving Advance, each of which constitutes a Class (it being understood and agreed that the Existing Term Loans and the Incremental Term Loans shall constitute Loans of the same Class). The “Type” of a Loan refers to the determination whether such Loan is a Eurocurrency Rate Loan or a Base Rate Loan, each of which constitutes a Type.

Section 1.05 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 Letter of Credit Exposure and amount of the Revolving Outstanding Amount. 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. The Administrative Agent shall notify the Borrower, the Issuing Banks and the Revolving Lenders of each calculation of the Dollar Equivalent amounts of the Letter of Credit Exposure made by it on a Revaluation Date.

 

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(b) For purposes of any determination under Section 6.01 or 6.02, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be converted into Dollars at currency exchange rates in effect on the date of such determination; provided that no Default or Event of Default shall arise as a result of any limitation set forth in Dollars in Section 6.01 or 6.02 being exceeded solely as a result of changes in currency exchange rates from those rates applicable at the time or times Debt or Liens were initially incurred in reliance on the exceptions under such Sections. For purposes of any determination under Section 6.04 or 6.05, the amount of each payment, disposition or other applicable transaction denominated in a currency other than Dollars shall be converted into Dollars at the currency exchange rate in effect on the date of the consummation thereof. Such currency exchange rates shall be the applicable rate set forth at approximately 11:00 a.m. (New York time) on such day on the applicable page of the Bloomberg Service (or any other comparable service) reporting the exchange rates for such currency, as determined in good faith by the Parent. For purposes of Sections 6.15, 6.16, and 6.17 and the related definitions, amounts in currencies other than Dollars shall be converted into Dollars at the currency exchange rates then most recently used in preparing the Parent’s consolidated financial statements.

Section 1.06 Additional Alternative Currencies. The Borrower may from time to time request that 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; provided further that such request shall be subject to the approval of the Administrative Agent and the applicable Issuing Bank. Any such request shall be made to the Administrative Agent not later than 11:00 a.m. (New York time), twenty (20) Business Days prior to the date of the desired LC Credit Extension (or such other time or date as may be agreed by the Administrative Agent and the applicable Issuing Bank in their sole discretion). The Administrative Agent shall promptly notify such Issuing Bank thereof. Each Issuing Bank shall notify the Administrative Agent, not later than 11:00 a.m. (New York time), ten (10) Business Days after receipt of such request whether it consents, in its sole discretion, to the issuance of Letters of Credit in such requested currency. Any failure by an Issuing Bank to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Issuing Bank to permit Letters of Credit to be issued in such requested currency. If the Administrative Agent and such Issuing Bank consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of Letters of Credit issued by such Issuing Bank. If the Administrative Agent shall fail to obtain consent to any request for an Additional Currency under this Section 1.06, the Administrative Agent shall promptly so notify the Borrower.

Section 1.07 Miscellaneous. Any terms used in this Agreement that are defined in Article 9 of the UCC shall have the meanings assigned to those terms by the UCC as of the date of this Agreement. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement (including this Agreement

 

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or any other Loan Document), instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (f) 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. References herein to the “date of this Agreement” or words of similar import shall be construed as references to June 30, 2010.

ARTICLE II

LOANS AND LETTERS OF CREDIT

Section 2.01 Commitments.

(a) Revolving Advances. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make advances (each such advance, a “Revolving Advance”) to the Borrower in Dollars from time to time, on any Business Day, in the case of each Non-Extending Revolving Lender, during the Revolving Availability Period, and in the case of each Extending Revolving Lender, during the Extended Revolving Availability Period, in each case, in an aggregate principal amount not to exceed, at any time, the lesser of (i) such Revolving Lender’s Revolving Commitment and (ii) such Revolving Lender’s Applicable Percentage of the Revolving Sublimit; provided, however, that after giving effect to any Revolving Borrowing and the application of proceeds thereof, (A) the Revolving Outstanding Amount shall not exceed the aggregate Revolving Commitments, (B) the aggregate outstanding amount of the Revolving Advances of any Revolving Lender plus such Revolving Lender’s Applicable Percentage of the Letter of Credit Exposure shall not exceed such Lender’s Revolving Commitment, (C) the aggregate outstanding amount of the Revolving Advances shall not exceed the Revolving Sublimit and (D) in the case of any Revolving Borrowing made after the Restatement Effective Date (other than any Specified Revolving Borrowing made before the New Revolving Availability Trigger Date), the aggregate principal amount of such Revolving Borrowing, when taken together with the aggregate then outstanding principal amount of all other Revolving Borrowings made after the Restatement Effective Date (other than any Specified Revolving Borrowing made before the New Revolving Availability Trigger Date) shall not (unless consented to in writing by the Majority Revolving Lenders) exceed the New Revolving Borrowing Availability Amount in effect at such time. Within the limits of each Revolving Lender’s Revolving Commitment and the Revolving Sublimit, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(a), prepay under Section 2.08, and reborrow under this Section 2.01(a). Revolving Advances may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

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(b) Term Loans. All Term Borrowings outstanding under the Original Credit Agreement immediately prior to the Restatement Effective Date (the “Existing Term Loans”) shall remain outstanding pursuant to the terms and conditions set forth herein. Subject to the terms and conditions hereof, the Borrower may prepay the Existing Term Loans but no amount paid or repaid with respect to the Existing Term Loans may be reborrowed. Existing Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(c) Incremental Term Loans. Subject to the terms and conditions set forth herein, each Incremental Term Lender severally agrees to make a loan (each such loan, an “Incremental Term Loan” and, together with the Existing Term Loans, the “Term Loans”) to the Borrower in Dollars on the Restatement Effective Date, in an aggregate principal amount not to exceed such Term Lender’s Incremental Term Commitment. Subject to the terms and conditions hereof, the Borrower may prepay the Incremental Term Loans but no amount paid or repaid with respect to the Incremental Term Loans may be reborrowed. Incremental Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

Section 2.02 Borrowings, Conversions and Continuations of Loans.

(a) Notice. Each Borrowing shall be made pursuant to a Notice of Borrowing and given (i) by the Borrower to the Administrative Agent not later than 11:00 a.m. (New York time) on the third (3rd) Business Day before the date of the proposed Borrowing (which shall be a Business Day) in the case of Eurocurrency Rate Loans, and (ii) by the Borrower to the Administrative Agent not later than 11:00 a.m. (New York time) on the date of the proposed Borrowing (which shall be a Business Day) in the case of Base Rate Loans; provided that any Notice of Borrowing of Incremental Term Loans may be given at any time not later than 11:00 a.m. (New York time) on the Restatement Effective Date. The Administrative Agent shall give each Applicable Lender prompt notice on the day of receipt of timely Notice of Borrowing of such proposed Borrowing by facsimile. Each Notice of Borrowing shall be by facsimile or telephone confirmed promptly in writing or by electronic communication (e-mail) receipt of which is confirmed by the Administrative Agent by facsimile or telephone, in any event, specifying the (A) requested date of such Borrowing (which shall be a Business Day), (B) requested Type and Class of Loans comprising such Borrowing, (C) aggregate principal amount of such Borrowing, and (D) if such Borrowing is to be comprised of Eurocurrency Rate Loans, the Interest Period for such Loans. In the case of a proposed Borrowing comprised of Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Applicable Lender of the applicable interest rate under Section 2.09, as applicable. Each Applicable Lender shall, before 2:00 p.m. (New York time) on the date of the proposed Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 10.02 or such other location as the Administrative Agent may specify by notice to the Applicable Lenders, in Same Day Funds, such Lender’s Applicable Percentage of such Borrowing. Upon satisfaction of the applicable conditions set forth in Section 3.02 (and, if such Borrowing is the initial Credit Extension, Section 3.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

 

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(b) Conversions and Continuations. Each Revolving Advance and Term Loan initially shall be of the Type and, in the case of Eurocurrency Rate Loans, shall have an initial Interest Period as specified in the applicable Notice of Borrowing; provided that, notwithstanding anything herein to the contrary, each Incremental Term Loan shall be allocated to, and shall constitute a part of, each then outstanding Term Borrowing on a pro rata basis, even though as a result thereof such Incremental Term Loan, to the extent allocated to any Term Borrowing comprised of Eurocurrency Rate Loans, may effectively have a shorter Interest Period than the Existing Term Loans comprising such Term Borrowing (and notwithstanding any other provision of this Agreement that would prohibit such an allocation (or any resulting Term Borrowing) or such an initial Interest Period). Thereafter, the Borrower may elect to Convert or Continue Revolving Advances and Term Loans, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Loan. In order to elect to Convert or Continue Loans under this Section, the Borrower shall deliver an irrevocable Notice of Conversion or Continuation to the Administrative Agent at its Applicable Lending Office no later than (i) 11:00 a.m. (New York time) on the date (which shall be a Business Day) of the requested Conversion in the case of a Conversion of a Eurocurrency Rate Loan to a Base Rate Loan or (ii) 11:00 a.m. (New York time) at least three (3) Business Days in advance of the date (which shall be a Business Day) of the requested Conversion or Continuation in the case of a Conversion into, or a Continuation of, a Eurocurrency Rate Loan. Each such Notice of Conversion or Continuation shall be by facsimile or telephone confirmed promptly in writing or by electronic communication (e-mail) receipt of which is confirmed by the Administrative Agent by facsimile or telephone, in any event, specifying (A) the requested Conversion or Continuation date (which shall be a Business Day), (B) the principal amount, Class, and Type of the Loan to be Converted or Continued, (C) whether a Conversion or Continuation is requested, and if a Conversion, into what Type of Loan, and (D) in the case of a Conversion to, or a Continuation of, a Eurocurrency Rate Loan, the requested Interest Period. Promptly after receipt of a Notice of Conversion or Continuation under this paragraph, the Administrative Agent shall provide each Applicable Lender with a copy thereof and, in the case of a Conversion to or a Continuation of a Eurocurrency Rate Loan, notify each Applicable Lender of the interest rate under Section 2.09. Any election to Convert or Continue any portion of any Loan that comprises part of any Borrowing shall be deemed to constitute an election so to Convert or Continue a corresponding portion of each other Loan that comprises part of such Borrowing and, for purposes other than the conditions set forth in Section 3.02, the portion of Loans comprising part of the same Borrowing that are so Converted or Continued shall constitute a new Borrowing.

(c) Certain Limitations. Notwithstanding anything in paragraphs (a) and (b) above:

(i) At the commencement of each Interest Period for any Borrowing comprised of Eurocurrency Rate Loans, such Borrowing shall be in an aggregate principal amount not less than $2,000,000 and in integral multiples of $500,000 in excess thereof; provided that a Borrowing comprised of Eurocurrency Rate Loans that results from a Continuation of an outstanding Borrowing comprised of Eurocurrency Rate Loans may be in an aggregate principal amount that is equal to the aggregate principal amount of such outstanding Borrowing. At the time that each Borrowing comprised of Base Rate Loans is made, such Borrowing shall be in an aggregate principal amount not less than $1,000,000 and in integral multiples of $500,000 in excess thereof; provided that any such Borrowing comprised of Revolving Advances may be in an aggregate amount that is equal to the entire unused amount of the aggregate Revolving Commitments.

 

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(ii) At no time shall there be more than ten (10) Interest Periods applicable to outstanding Eurocurrency Rate Loans hereunder.

(iii) If an Event of Default under Section 7.01(e) has occurred and is continuing, or if any other Default or Event of Default has occurred and is continuing and the Administrative Agent, at the request of a Majority Lenders, has notified the Borrower of the election to give effect to this sentence on account of such other Default or Event of Default, then, in each such case, so long as such Event of Default or such Default or Event of Default is continuing, no outstanding Loans may be Converted to or Continued as Eurocurrency Rate Loans.

(iv) If any Lender shall, at least one (1) Business Day prior to the requested date of any Borrowing comprised of Eurocurrency Rate Loans, notify the Administrative Agent and the Borrower that any Change in Law makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its Applicable Lending Office to perform its obligations under this Agreement to make Eurocurrency Rate Loans or to fund or maintain Eurocurrency Rate Loans, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or take deposits of, Dollars in the London interbank market, then (1) such Lender’s Applicable Percentage of the amount of such Borrowing shall be made as a Base Rate Loan of such Lender, (2) such Base Rate Loan shall be considered part of the same Borrowing and interest on such Base Rate Loan shall be due and payable at the same time that interest on the Eurocurrency Rate Loans comprising the remainder of such Borrowing shall be due and payable, and (3) any obligation of such Lender to make, Continue, or Convert to, Eurocurrency Rate Loans, including in connection with such requested Borrowing, shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Each Lender agrees to use commercially reasonable efforts (consistent with its internal policies and subject to legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such designation would avoid the effect of this paragraph, would not subject such Lender to any unreimbursed cost or expense and would not, in the reasonable judgment of such Lender, be otherwise materially disadvantageous to such Lender.

(v) If the Administrative Agent is unable to determine the Eurocurrency Rate for Eurocurrency Rate Loans comprising any requested Borrowing, the right of the Borrower to select Eurocurrency Rate Loans for such Borrowing or for any subsequent Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Applicable Lenders that the circumstances causing such suspension no longer exist, and each Loan comprising such Borrowing shall be made as a Base Rate Loan.

(vi) If the Majority Lenders shall, by 11:00 a.m. (New York time) at least one (1) Business Day before the date of any requested Borrowing, notify the Administrative Agent that the Eurocurrency Rate for Eurocurrency Rate Loans comprising such

 

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Borrowing will not adequately reflect the cost to such Lenders of making or funding their respective Eurocurrency Rate Loans, as the case may be, for such Borrowing, then the Administrative Agent shall give notice thereof to the Borrower and the Lenders and the right of the Borrower to select Eurocurrency Rate Loans for such Borrowing or for any subsequent Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Loan comprising such Borrowing shall be made as a Base Rate Loan.

(vii) If the Borrower shall fail to select the duration or Continuation of any Interest Period for any Eurocurrency Rate Loan in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01 and paragraph (a) or (b) above, the Administrative Agent will forthwith so notify the Borrower and the Applicable Lenders and such affected Loans will be made available to the Borrower on the date of such Borrowing as Base Rate Loans or, if such affected Loans are existing Loans, will be Converted into Base Rate Loans at the end of Interest Period then in effect.

(viii) Revolving Advances may only be Converted or Continued as Revolving Advances, and Term Loans may only be Converted or Continued as Term Loans.

(d) Notices Irrevocable. Each Notice of Borrowing and Notice of Conversion or Continuation shall be irrevocable and binding on the Borrower. In the case of any Borrowing which the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate Loans, the Borrower shall indemnify each Lender against any loss, out-of-pocket cost or expense (other than any anticipated lost profits) actually incurred by such Lender as a result of any failure to fulfill on or before the requested date of such Borrowing specified in such Notice of Borrowing the applicable conditions set forth in Article III, including, without limitation, any such loss, cost or expense actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.

(e) Lender Obligations Several. The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, to make its Loan on the date of such Borrowing. No Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

(f) Funding by Lenders; Administrative Agents’ Reliance. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date (or in the case of Base Rate Loans, the proposed time) of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage available in accordance with and at the time required in Section 2.02(a) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its Applicable Percentage of such Borrowing available to the Administrative Agent, then such Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to the

 

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Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to the requested Borrowing. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its Applicable Percentage of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (f) shall be conclusive, absent manifest error.

Section 2.03 Letters of Credit.

(a) Commitment. Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 2.03, from time to time on any Business Day during the period from the Closing Date until the LC Availability Termination Date, to issue, increase, or extend the expiration date of Letters of Credit denominated in Dollars or in one or more Alternative Currencies for the account of the Borrower or the Parent or any other Subsidiary (in which case the Borrower and the Parent or such other Subsidiary shall be co-applicants with respect to such Letter of Credit), in accordance with subsection (b) below, and (ii) the Revolving Lenders severally agree to participate in Letters of Credit and any LC Disbursements thereunder; provided that, after giving effect to any LC Credit Extension with respect to any Letter of Credit, (A) the Revolving Outstanding Amount shall not exceed the aggregate Revolving Commitments, and (B) the aggregate outstanding principal amount of the Revolving Advances of any Revolving Lender plus such Revolving Lender’s Applicable Percentage of the Letter of Credit Exposure shall not exceed such Revolving Lender’s Revolving Commitment. Each request by the Borrower for an LC Credit Extension shall be deemed to be a representation by the Borrower that the LC Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Immediately upon the issuance or increase of each Letter of Credit (including the deemed issuance of the Existing Letters of Credit), each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the amount of such Letter of Credit (or such increase); provided that on the Revolving Maturity Date, the participations granted to and acquired by the Non-Extending Revolving Lenders shall be reallocated among the Extending Revolving Lenders ratably in accordance with such Extending Revolving Lenders’ respective Applicable Percentages determined after giving effect to the termination of the Non-Extended Revolving Commitments on the Revolving Maturity Date; provided further that any reallocation that would be required pursuant to the foregoing proviso shall not be effected for so long as (x) such reallocation would result in the aggregate outstanding principal amount of the Revolving Advances of any Extending Revolving Lender

 

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plus such Extending Revolving Lender’s Applicable Percentage (as so determined) of the Letter of Credit Exposure exceeding such Extending Revolving Lender’s Extended Revolving Commitment or (y) an Event of Default shall have occurred and be continuing. No Letter of Credit will be issued, increased or extended unless:

(i) such Letter of Credit has an expiration date not later than the earlier of (A) five (5) Business Days prior to the Extended Revolving Maturity Date and (B) one (1) year from the issuance thereof (or, in the case of an extension, one (1) year from the extension thereof); provided that any such Letter of Credit with a one-year tenor may expressly provide that it is renewable at the option of the applicable Issuing Bank for additional one-year periods (which shall in no event extend beyond the Extended Revolving Maturity Date), so long as such Letter of Credit is subject to a right of the applicable Issuing Bank to prevent any such renewal from occurring by giving notice to the beneficiary of such Letter of Credit at least thirty (30) days in advance of such renewal; provided further that no Letter of Credit will be issued, increased or extended if the expiration date of any such requested Letter of Credit would occur after the Revolving Maturity Date and, at the time of such issuance, increase or extension, the amount of such requested Letter of Credit, together with the amounts of all other outstanding Letters of Credit with expiration dates occurring after the Revolving Maturity Date, would exceed the aggregate Extended Revolving Commitments;

(ii) such Letter of Credit is in form and substance acceptable to the applicable Issuing Bank in its reasonable discretion; and

(iii) the Borrower, and if such Letter of Credit is for the account of the Parent or any other Subsidiary, the Parent or such other Subsidiary, has delivered to the applicable Issuing Bank a completed and executed Letter of Credit Application and a completed Letter of Credit Request.

(b) Certain Limits on Issuing Banks’ Obligation. Notwithstanding anything to the contrary contained herein or in any Letter of Credit Application, no Issuing Bank shall be under any obligation to issue any Letter of Credit if:

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

 

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(ii) the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;

(iii) except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;

(iv) in the case of any requested Letter of Credit denominated in an Alternative Currency, such Issuing Bank does not, as of the requested issuance date of such Letter of Credit, issue letters of credit denominated in such currency;

(v) any Revolving Lender is at such time a Defaulting Lender or Potential Defaulting Lender, unless such Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Revolving Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to such Defaulting Lender or Potential Defaulting Lender; or

(vi) the requested beneficiary of such Letter of Credit does not accept such Letter of Credit.

(c) Drawings and Reimbursements; Funding of Participations.

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify the Borrower and the Administrative Agent thereof. In the case of an LC Disbursement under any Letter of Credit denominated in an Alternative Currency, the applicable Issuing Bank shall promptly determine the Dollar Equivalent thereof and notify the Borrower thereof, and the Borrower shall reimburse the applicable Issuing Bank for such LC Disbursement in Dollars. If any Issuing Bank shall make an LC Disbursement (the date of any such disbursement, an “Honor Date”), the Borrower shall reimburse such Issuing Bank by paying to the Administrative Agent in Dollars the Dollar Equivalent of the amount of such LC Disbursement not later than (A) if the Borrower shall have received notice of such disbursement prior to 10:00 a.m. (New York time) on any Business Day, 3:00 p.m. (New York time) on such Business Day or (B) otherwise, 3:00 p.m. (New York time) on the Business Day immediately following the day that the Borrower receives such notice; provided that the Borrower may, without regard to the minimum and multiples specified in Section 2.02(c), but subject to the proviso set forth in Section 2.01(a) and the conditions set forth in Section 3.02, request that such payment be financed with a Revolving Borrowing and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Advances. If the Borrower fails to so reimburse such Issuing Bank by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed LC Disbursement (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 Applicable Percentage thereof. Any notice given by the Issuing

 

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Banks 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 available to the Administrative Agent for the account of the applicable Issuing Bank, in Dollars, at the Administrative Agent’s Applicable Lending Office, an amount in Same Day Funds equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. (New York time) on the Business Day specified in such notice by the Administrative Agent, whereupon such Lender shall be deemed to have made an LC Advance in satisfaction of its participation obligation under this Section 2.03. The Administrative Agent shall remit the funds so received to the applicable Issuing Bank in Dollars.

(iii) Interest accrued pursuant to Section 2.09(c) with respect to any LC Disbursement shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender of its LC Advance with respect to such LC Disbursement shall be for the account of such Revolving Lender to the extent of such LC Advance.

(iv) Each Revolving Lender’s obligation to make LC Advances to reimburse the Issuing Banks for LC Disbursements, 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 which such Lender may have against any Issuing Bank, the Parent, the Borrower, any other Subsidiary or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such making of an LC Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the Issuing Banks for any LC Disbursement, together with interest as provided herein.

(v) If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank 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 Issuing Bank 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 applicable Issuing Bank at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by such Issuing Bank in connection with the foregoing. If such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s LC Advance in respect of the relevant LC Disbursement. A certificate of any Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (v) shall be conclusive absent manifest error.

 

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(d) Repayment of Participations.

(i) At any time after any Issuing Bank has made an LC Disbursement and has received from any Revolving Lender such Revolving Lender’s LC Advance in respect of such disbursement in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such Issuing Bank 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 Applicable Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of any Issuing Bank pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.11 (including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such Issuing Bank its Applicable 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 shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Obligations Absolute. The obligation of the Borrower to reimburse the Issuing Banks for each LC Disbursement shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

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

(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit Document or any other Loan Document;

(iii) the existence of any claim, counterclaim, setoff, defense or other right that the Parent, the Borrower, any other Subsidiary or any other Person may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable Issuing Bank or any other Person, whether in connection with this Agreement, the Transactions or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

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

 

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(v) any payment by the applicable Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the applicable Issuing Bank 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;

(vi) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Parent, the Borrower, any other Subsidiary or any other Person, or in the relevant currency markets generally; or

(vii) 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 Parent, the Borrower, any other Subsidiary or any other Person.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against the applicable Issuing Bank and its correspondents unless such notice is given as aforesaid. Without limiting the generality of the foregoing but subject to the proviso in subsection (f) below, it is expressly understood and agreed that the absolute and unconditional obligation of the Borrower hereunder to reimburse each LC Disbursement made by the applicable Issuing Bank pursuant to a Letter of Credit will not be excused by the gross negligence or willful misconduct of the applicable Issuing Bank.

(f) Role of Issuing Bank. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. None of the Issuing Banks, the Administrative Agent, any of their respective Related Parties or any correspondent, participant or assignee of the Issuing Banks shall be liable or responsible for:

(i) the use which may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith;

(ii) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged;

(iii) payment by such Issuing Bank against presentation of documents which do not comply with the terms of a Letter of Credit; or

(iv) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit (including such Issuing Bank’s own negligence);

 

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provided, however, that the Borrower shall have a claim against the applicable Issuing Bank, and such Issuing Bank shall be liable to, and shall promptly pay to, the Borrower, to the extent of any direct, as opposed to consequential (claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable Legal Requirements), damages suffered by the Borrower which the Borrower prove were caused by (A) the applicable Issuing Bank’s willful misconduct or gross negligence in determining whether documents presented under a Letter of Credit strictly comply with the terms of such Letter of Credit, (B) in the event the applicable Issuing Bank did not follow its own standard operating procedures in all material respects or (C) the applicable Issuing Bank has honored a Letter of Credit in violation of, to its knowledge, applicable Legal Requirements or court order. It is understood that the Issuing Banks 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, in making any payment under any Letter of Credit, (x) such Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (y) any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross negligence of such Issuing Bank. Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable Issuing Bank 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.

(g) Cash Collateral.

(i) Upon the request of the Administrative Agent, (A) if any Issuing Bank has made any LC Disbursement and such disbursement has not been reimbursed by or on behalf of the Borrower as required under Section 2.03(c)(i) or refinanced with a Revolving Borrowing or (B) if, as of the Extended Revolving Maturity Date, any Letter of Credit Exposure for any reason remains outstanding, the Borrower shall, in each case, promptly Cash Collateralize the Letter of Credit Exposure in an amount equal to 105% of the Dollar Equivalent of the aggregate outstanding amount of the Letter of Credit Exposure. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations. Sections 2.08, 7.02 and 7.03 set forth certain additional requirements to deliver Cash Collateral hereunder.

(ii) If at any time that there shall exist a Defaulting Lender, promptly upon the request of the Administrative Agent or the applicable Issuing Bank, the Borrower shall deliver to the Collateral Agent Cash Collateral in an amount equal to the Fronting Exposure of such Issuing Bank at the time (determined for the avoidance of doubt, after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by any Defaulting Lender).

 

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(iii) If the Borrower is required to Cash Collateralize the Letter of Credit Exposure or Fronting Exposure pursuant to the terms hereof, then the Borrower and the Collateral Agent shall establish the LC Cash Collateral Account and the Borrower shall execute any documents and agreements, including the Collateral Agent’s standard form assignment of deposit accounts and control agreements, that the Collateral Agent reasonably requests in connection therewith to establish the LC Cash Collateral Account and grant the Collateral Agent an Acceptable Security Interest in such account and the funds therein. The Borrower hereby pledges to the Collateral Agent and grants the Collateral Agent a security interest in the LC Cash Collateral Account, whenever established, all funds held in such LC Cash Collateral Account from time to time, and all proceeds thereof as security for the payment of the Obligations.

(iv) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by any Defaulting Lender ceasing to be a Defaulting Lender or ceasing to be a Revolving Lender) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default and may be otherwise applied in accordance with Section 7.06.

(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each Financial Letter of Credit and each Performance Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each Documentary Letter of Credit.

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

(j) Letters of Credit Issued for Person other than the Borrower. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, the Parent or any Subsidiary, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all LC Disbursements under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of the Parent or any Subsidiary other than the Borrower inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of the Parent and such of its Subsidiaries.

(k) Existing Letters of Credit. Crédit Agricole CIB, in its capacity as Issuing Bank, the Revolving Lenders and the Borrower agree that effective as of the Closing Date, the Existing Letters of Credit shall be deemed to have been issued and maintained under, and to be governed by the terms and conditions of, this Agreement.

 

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(l) Designation of Additional Issuing Banks. The Borrower may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be construed to refer to, or to include, such Revolving Lender in its capacity as the issuer of the relevant Letter of Credit or as an issuer of Letters of Credit hereunder, as the context requires.

Section 2.04 Evidence of Indebtedness; Notes. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loans made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Administrative Agent shall also maintain accounts in which it will record (A) the amount of each Loan made hereunder, the Class and Type thereof and, in the case of Eurocurrency Rate Loans, the Interest Period with respect thereto, (B) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (C) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof. The entries maintained in the accounts maintained pursuant to sentences above shall be conclusive evidence of the existence and amounts of the Obligations therein recorded absent manifest error; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms. Any Lender may request that the Loans owing to such Lender be evidenced by a Note. In such event, the Borrower shall execute and deliver to such Lender a Note payable to the order of such Lender and its registered assigns. Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 10.06) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 10.06, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced solely in the accounts of such Lender and the Administrative Agent.

Section 2.05 Reductions of the Revolving Commitments. The Borrower shall have the right, upon at least five (5) Business Days’ irrevocable notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portion of the Revolving Commitments; provided that each partial reduction of Revolving Commitments shall be in the minimum aggregate amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amount as may then be outstanding); provided further that any such notice of termination or reduction of the Revolving Commitments may state that such notice is

 

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conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent at least one (1) day prior to the specified effective date) if such condition is not satisfied. To the extent that a Revolving Commitment reduction would result in the Revolving Outstanding Amount exceeding the aggregate Revolving Commitments, the Borrower shall reduce the Revolving Outstanding Amount such that after giving effect to such reduction such excess has been eliminated. Such reductions shall be made to the extent necessary by first prepaying the Revolving Advances outstanding at such time, and second depositing in the LC Cash Collateral Account an amount of cash equal to 105% of the remaining excess to be held by the Collateral Agent as Collateral and applied to satisfy drawings under Letters of Credit as they occur. Any reduction or termination of the Revolving Commitments pursuant to this Section 2.05 shall be permanent, with no obligation of the Revolving Lenders to reinstate such Revolving Commitments, and the commitment fees provided for in Section 2.06(b) shall thereafter be computed on the basis of the Revolving Commitments as so reduced. The Administrative Agent shall give each Revolving Lender prompt notice of any commitment reduction or termination. If after giving effect to any reduction of Revolving Commitments under this Section 2.05, either of the Revolving Sublimit or the New Revolving Borrowing Availability Amount exceeds the aggregate Revolving Commitments as so reduced, each of the Revolving Sublimit and the New Revolving Borrowing Availability Amount shall be automatically reduced by the amount of such excess.

Section 2.06 Fees.

(a) Agency Fees. The Borrower agrees to pay to the Administrative Agent the fees as separately agreed upon by the Borrower in the Fee Letters.

(b) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Applicable Percentage, a commitment fee in Dollars equal to the Applicable Commitment Fee Rate times the actual daily amount by which the aggregate Revolving Commitments exceed the Revolving Outstanding Amount. The commitment fee shall accrue at all times during the Revolving Availability Period (in the case of the commitment fees accruing for the account of the Non-Extending Revolving Lenders) and the Extended Revolving Availability Period (in the case of the commitment fees accruing for the account of the Extending Revolving Lenders), including at any time during which one or more of the conditions in Article III is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Revolving Availability Period (in the case of commitment fees accrued for the account of the Non-Extending Revolving Lenders) or the Extended Revolving Availability Period (in the case of the commitment fees accrued for the account of the Extending Revolving Lenders).

(c) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Applicable Percentage, in Dollars, (i) a per annum letter of credit fee for each Documentary Letter of Credit or Financial Letter of Credit equal to the Applicable Margin for Revolving Advances that are Eurocurrency Rate Loans and (ii) a per annum letter of credit fee for each Performance Letter of Credit equal to the Applicable Margin for Performance Letters of Credit, in each case times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, that any

 

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letter of credit fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit shall be payable, to the maximum extent permitted by applicable law, to the other Revolving Lenders in accordance with the upward adjustments in their respective Applicable Percentage allocable to such Letter of Credit pursuant to Section 2.17(a)(iv), with the balance of such fee, if any, being retained by the Borrower for its own account or, to the extent any Fronting Exposure shall then be outstanding, being payable to the applicable Issuing Bank for its own account to the extent such fee relates to the amount of such Fronting Exposure. Each letter of credit fee shall be payable quarterly in arrears on or before the later of (A) the last Business Day of each March, June, September and December and (B) five (5) Business Days after receipt by the Borrower of an invoice therefor, in each case commencing with the first such date to occur after the Closing Date, until the earlier of the expiration date of such Letter of Credit or the last day of the Revolving Availability Period (in the case of letter of credit fees accrued for the account of the Non-Extending Revolving Lenders) or the Extended Revolving Availability Period (in the case of the letter of credit fees accrued for the account of the Extending Revolving Lenders).

(d) Fronting Fee and Documentary and Processing Charges Payable to Issuing Bank. The Borrower shall pay directly to each Issuing Bank for its own account, in Dollars, a fronting fee with respect to each Letter of Credit issued by it, equal to 0.25% per annum times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. Each such fee shall be payable quarterly in arrears on or before the later of (i) the last Business Day of each March, June, September and December and (ii) five (5) Business Days after receipt by the Borrower of an invoice therefor, commencing with the first such date to occur after the Closing Date, until the earlier of the expiration date of such Letter of Credit or the Extended Revolving Maturity Date. In addition to the foregoing fees, the Borrower agrees to pay to the applicable Issuing Bank all customary transaction costs and fees charged by such Issuing Bank in connection with the issuance, amendment, renewal, extension, advising, confirmation or transfer of a Letter of Credit for the Borrower’s account, such costs and fees to be due and payable on the date specified by such Issuing Bank in the invoice for such costs and fees.

(e) Incremental Term Loan Original Issue Discount. Notwithstanding anything to the contrary contained herein (and without affecting any other provisions hereof), the funded portion of each Incremental Term Loan to be made on the Restatement Effective Date (i.e., the amount advanced to the Borrower on the Restatement Effective Date) shall be equal to 97.0% of the principal amount of such Incremental Term Loan (it being agreed, in each case, that the full principal amount of each such Incremental Term Loan shall be the “initial” principal amount of such Incremental Term Loan and deemed outstanding on the Restatement Effective Date and the Borrower shall be obligated to repay 100% of the principal amount of each such Incremental Term Loan as provided hereunder).

(f) Generally. All such fees shall be paid on the dates due, in immediately available Dollars to the Administrative Agent for distribution, if and as appropriate, among the Revolving Lenders, except that the fees payable pursuant to Section 2.06(d) shall be paid directly to the applicable Issuing Bank. Once paid, absent manifest error, none of these fees shall be refundable under any circumstances.

 

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(g) Extension Fee. The Borrower agrees to pay to each Extending Revolving Lender a cash extension fee equal to 2.00% of the initial Extended Revolving Commitment of such Extending Revolving Lender and the other fees payable to Lenders as set forth in the Amendment and Restatement Agreement (it being understood that any fees payable under this clause (g) shall be without duplication of the fees payable under the Amendment and Restatement Agreement).

Section 2.07 Repayment.

(a) Revolving Advances and LC Advances. The Borrower hereby unconditionally promises to repay (i) the outstanding principal amount of the Revolving Advances and LC Advances made by the Non-Extending Revolving Lenders under their Non-Extended Revolving Commitments on the Revolving Maturity Date, and (ii) the outstanding principal amount of the Revolving Advances and LC Advances made by the Extending Revolving Lenders under their Extended Revolving Commitments on the Extended Revolving Maturity Date (it being understood that any payment by the Borrower of an LC Advance shall reduce by the same amount reimbursement obligations of the Borrower under Section 2.03(c)).

(b) Term Loans.

(i) The Borrower hereby promises to repay Term Borrowings on (A) December 31, 2010, an aggregate principal amount (as such amount may be adjusted pursuant to Section 2.07(b)(ii)) equal to 0.25% of the aggregate principal amount of the Term Borrowings made on the Closing Date and (B) the last day of each March, June, September and December, beginning with March 31, 2011 and ending with the last such day to occur prior to the Term Maturity Date, in an aggregate principal amount for each such date (as such amount may be adjusted pursuant to Section 2.07(b)(ii)) equal to (x) 1.25% of the aggregate principal amount of the Term Borrowings made on the Closing Date plus (y) in the case of any such date occurring after the Restatement Effective Date, 1.25% of the aggregate principal amount of the Incremental Term Loans made on the Restatement Effective Date.

(ii) Any prepayment of a Term Borrowing made pursuant to Section 2.08(b) shall be applied to reduce, first, the subsequent scheduled repayments of the Term Borrowings to be made pursuant to Section 2.07(b)(i) in the direct chronological order of such scheduled repayments, until the payment due on the next four (4) such scheduled repayments to be made pursuant to such Section after such prepayment shall have been discharged, and then to the remaining scheduled repayments of the Term Borrowings under Section 2.07(b)(i) ratably based on the amount of such scheduled repayments. Any prepayment of a Term Borrowing made pursuant to Section 2.08(c) shall be applied to reduce the subsequent scheduled repayments of the Term Borrowings to be made pursuant to Section 2.07(b)(i) in the inverse chronological order of such scheduled repayments.

(iii) To the extent not previously repaid or prepaid, the Borrower hereby promises to repay the aggregate principal amount of all Term Loans on the Term Maturity Date.

 

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Section 2.08 Prepayments.

(a) Right to Prepay. Subject to the terms and conditions provided in this Agreement, including in this Section 2.08, the Borrower may prepay any principal amount of any Loan.

(b) Optional.

(i) The Borrower may elect to prepay, in whole or in part, any of the Revolving Borrowings owing by it to the Revolving Lenders, after giving prior written notice of such election by (i) 11:00 a.m. (New York time) at least three (3) Business Days before such prepayment date in the case of Revolving Borrowings which are comprised of Eurocurrency Rate Loans, and (ii) 11:00 a.m. (New York time) on the date of such prepayment (which shall be a Business Day), in the case of Revolving Borrowings which are comprised of Base Rate Loans, in each case to the Administrative Agent stating the proposed date and aggregate principal amount of such prepayment. If any such notice is given, the Administrative Agent shall give prompt notice thereof to each Applicable Lender, and the Borrower shall prepay the Loans comprising part of such Revolving Borrowing in whole or ratably in part in an aggregate principal amount equal to the amount specified in such notice; provided, however, that each partial prepayment of any Revolving Borrowing shall be in an aggregate principal amount not less than $2,500,000 and in integral multiples of $500,000 in excess thereof. Notwithstanding the foregoing, any notice given under this Section 2.08(b)(i) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent at least one (1) day prior to the specified date of prepayment) if such condition is not satisfied and, if so revoked, no prepayment on account of such notice shall be required to be made by the Borrower hereunder.

(ii) The Borrower may elect to prepay, in whole or in part, any of the Term Borrowings owing by it to the Term Lenders, after giving prior written notice of such election by (i) 11:00 a.m. (New York time) at least three (3) Business Days before such prepayment date in the case of Term Borrowings which are comprised of Eurocurrency Rate Loans, and (ii) 11:00 a.m. (New York time) on the date of such prepayment (which shall be a Business Day), in the case of Term Borrowings which are comprised of Base Rate Loans, in each case to the Administrative Agent stating the proposed date and aggregate principal amount of such prepayment. If any such notice is given, the Administrative Agent shall give prompt notice thereof to each Applicable Lender, and the Borrower shall prepay the Loans comprising part of such Term Borrowing in whole or ratably in part in an aggregate principal amount equal to the amount specified in such notice; provided, however, that each partial prepayment of any Term Borrowing shall be in an aggregate principal amount not less than $2,500,000 and in integral multiples of $500,000 in excess thereof. Notwithstanding the foregoing, any notice given under this Section 2.08(b)(ii) may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent at least one (1) day prior to the specified date of prepayment) if such condition is not satisfied and, if so revoked, no prepayment on account of such notice shall be required to be made by the Borrower hereunder. In the

 

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event of any prepayment under this Section 2.08(b)(ii), if such prepayment is made solely with Net Debt Proceeds of an incurrence of Debt or with Equity Issuance Proceeds, such prepayment shall be accompanied by a prepayment premium equal to 1.00% of the principal amount of the Term Loans then being prepaid if such prepayment is made prior to December 31, 2012. No prepayment premium will apply to prepayments of the Term Loans under this Section 2.08(b)(ii) occurring on or after December 31, 2012.

(c) Mandatory Prepayments of Loans.

(i) Deficiency Based on Revolving Sublimit. On any date on which the sum of the aggregate Revolving Advances is greater than the Revolving Sublimit, the Borrower shall make a mandatory prepayment of the Revolving Advances in an amount equal to such excess.

(ii) Reduction of Commitments. On the date of each reduction of the aggregate Revolving Commitments pursuant to Section 2.05, the Borrower shall make a prepayment in respect of the outstanding amount of the Revolving Advances, or if the Revolving Advances have been repaid in full, make deposits into the LC Cash Collateral Account to provide Cash Collateral for the Letter of Credit Exposure to the extent, if any, that the Revolving Outstanding Amount exceeds the aggregate Revolving Commitments as so reduced.

(iii) Deficiency Based on New Revolving Borrowing Availability Amount. On or after the New Revolving Borrowing Availability Trigger Date, the Borrower shall make a prepayment of Revolving Advances to the extent the aggregate outstanding amount of Revolving Advances (including Specified Revolving Borrowings) exceeds the New Revolving Borrowing Amount then in effect.

(iv) Currency Risks. On each Revaluation Date, the Administrative Agent shall determine the Dollar Equivalent of the Revolving Outstanding Amount. If, on any Revaluation Date, the Dollar Equivalent of the Revolving Outstanding Amount exceeds the aggregate Revolving Commitments then in effect, then the Administrative Agent shall give notice thereof to the Borrower and the Revolving Lenders. Within two (2) Business Days after the Borrower has received notice thereof, the Borrower shall make a prepayment in respect of the outstanding amount of the Revolving Advances, or if the Revolving Advances have been repaid in full, make deposits into the LC Cash Collateral Account to provide Cash Collateral for the Letter of Credit Exposure, such that after giving effect to such prepayment or provision, the Revolving Outstanding Amount does not exceed the aggregate Revolving Commitments then in effect.

(v) Asset Dispositions; Event of Loss. If the Parent or any of its Subsidiaries shall at any time or from time to time make an Asset Disposition or suffer an Event of Loss, then (A) the Borrower shall promptly notify the Administrative Agent of such Asset Disposition or Event of Loss (including the amount of the estimated Net Proceeds to be received by the Parent and/or any of its Subsidiaries in respect thereof) and (B) promptly upon receipt by the Parent and/or any of its Subsidiaries of the Net Proceeds of such Asset Disposition or such Event of Loss (unless the Parent has delivered a

 

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Reinvestment Notice to the Administrative Agent), the Borrower shall prepay the Loans in an aggregate principal amount equal to 100% of such Net Proceeds; provided, however, that if, on the Reinvestment Prepayment Date in respect of any Reinvestment Event, the Reinvestment Prepayment Amount in respect of such Reinvestment Event shall exceed zero, the Borrower shall prepay the Loans in an aggregate principal amount equal to such Reinvestment Prepayment Amount. Any Net Proceeds with respect to which a Reinvestment Notice shall have been delivered as described above shall be required, prior to the earlier of (i) the application thereof to make any Qualified Investment and (ii) the application thereof to make a prepayment under this paragraph, to be deposited into a Collateral Agent Account or another deposit account that is subject to an Account Control Agreement.

(vi) Debt Issuance. Promptly upon the receipt by the Parent or any of its Subsidiaries of any Net Debt Proceeds, the Borrower shall prepay Loans in an aggregate principal amount equal to 100% of such Net Debt Proceeds. Each such prepayment of the Term Loans pursuant to this Section 2.08(c)(vi) shall be accompanied by a prepayment premium equal to 1.00% of the principal amount of the Term Loans then being prepaid if such prepayment is made prior to December 31, 2012. No prepayment premium will apply to prepayments of the Term Loans under this Section 2.08(c)(vi) occurring on or after December 31, 2012.

(vii) Equity Issuance. Promptly upon receipt by the Parent of any Equity Issuance Proceeds, the Borrower shall prepay Loans in an aggregate principal amount equal to 50% of such Equity Issuance Proceeds; provided, however, that no prepayment shall be required to be made in respect of a receipt of any Equity Issuance Proceeds if the Total Leverage Ratio as of the end of the fiscal quarter most recently ended prior to such receipt is less than 2.75 to 1.00. Each such prepayment of the Term Loans pursuant to this Section 2.08(c)(vii) (if applied to the Term Loans at the election of the Borrower pursuant to Section 2.08(e)) shall be accompanied by a prepayment premium equal to 1.00% of the principal amount of the Term Loans then being prepaid if such prepayment is made prior to December 31, 2012. No prepayment premium will apply to prepayments of the Term Loans under this Section 2.08(c)(vii) occurring on or after December 31, 2012.

(viii) Excess Cash Flow. Within five (5) Business Days after financial statements have been delivered pursuant to Section 5.06(a), the Borrower shall prepay the Term Loans in an aggregate principal amount equal to (x) 75% of Excess Cash Flow for the most recent fiscal year covered by such financial statements less (y) the aggregate principal amount of any voluntary prepayment of Term Borrowings made by the Borrower pursuant to Section 2.08(b) during such fiscal year, excluding any such voluntary prepayments to the extent financed with the incurrence of Long-Term Debt.

(d) Accrued Interest; Ratable Payments; Effect of Notice. Each prepayment pursuant to this Section 2.08 shall be accompanied by accrued interest on the amount prepaid to the date of such prepayment and amounts, if any, required to be paid pursuant to Section 2.10 as a result of such prepayment being made on such date. Each payment of any Loan pursuant to this Section 2.08 or any other provision of this Agreement shall be made in a manner such that all

 

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Loans comprising part of the same Borrowing are paid in whole or ratably in part. Except as provided in Section 2.08(b), all notices given pursuant to this Section 2.08 shall be irrevocable and binding upon the Borrower.

(e) Application of Payments. All prepayments of Loans made pursuant to Section 2.08(c), other than prepayments made pursuant to Sections 2.08(c)(i) – (iv), (vi) and (viii), shall be applied at the election of the Borrower to the prepayment of the Term Loans or Revolving Advances, or any combination thereof, until all such Loans are repaid in full; provided, however, that a Term Lender may, pursuant to procedures to be established by the Administrative Agent, decline to have any such prepayment be applied to its Term Loans, in which case the amounts so declined shall be applied to the prepayment of the Revolving Advances or, if the Revolving Advances have been repaid in full, shall be deposited as Cash Collateral for the Letter of Credit Exposure in accordance with the relevant provisions of Section 2.08(c).

All prepayments of Loans required under Section 2.08(c)(i) – (iv) and (viii) shall be applied as set forth in such Sections. All prepayments of Loans required under Section 2.08(c)(vi) shall be applied first to Term Loans until such Loans are repaid in full, and second to Revolving Advances until such Loans are repaid in full. For purposes of Section 2.01(a), any repayment under Section 2.07 or any prepayment under this Section 2.08 of any Revolving Advance (irrespective of when such Revolving Advance shall have actually been made) shall be deemed (but only to the extent such repayment or prepayment does not increase the New Revolving Borrowing Availability Amount on account thereof) to be a repayment or prepayment of a Revolving Advance made after the Restatement Effective Date, and a corresponding reduction in the aggregate outstanding principal amount of the Revolving Borrowings made after the Restatement Effective Date, but in each case only to the extent of the aggregate outstanding amount of any Revolving Advances (other than Specified Revolving Borrowings made before the New Revolving Borrowing Availability Trigger Date) made on and after the Restatement Effective Date.

Section 2.09 Interest.

(a) Loans. The Borrower shall pay interest on the unpaid principal amount of each Loan made by each Lender to it from the date of such Loan until such principal amount shall be paid in full, at the following rates per annum:

(i) Base Rate Loans. If such Loan is a Base Rate Loan, a rate per annum equal to the Adjusted Base Rate plus the Applicable Margin for Base Rate Loans of the applicable Class, payable quarterly in arrears on the last Business Day of each calendar quarter and on the date such Base Rate Loan shall be paid in full.

(ii) Eurocurrency Rate Loans. If such Loan is a Eurocurrency Rate Loan, a rate per annum equal to the Eurocurrency Rate for the Interest Period applicable thereto plus the Applicable Margin for Eurocurrency Rate Loans of the applicable Class, payable in arrears on the last day of such Interest Period, and, in the case of Interest Periods of greater than three months, on each Business Day which occurs at three month intervals from the first day of such Interest Period.

 

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(b) Additional Interest on Eurocurrency Rate Loans. The Borrower shall pay to each Lender, so long as any such Lender shall be required under regulations of the Federal Reserve Board to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of any Eurocurrency Rate Loan of such Lender at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurocurrency Rate for the Interest Period for such Loan from (ii) the rate obtained by dividing such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage of such Lender for such Eurocurrency Rate Loans for such Interest Period, payable, subject to the receipt of notice referred to below, on each date on which interest is payable on such Loan. Such additional interest payable to any Lender shall be determined by such Lender and notified to the Borrower through the Administrative Agent (such notice to include the calculation of such additional interest, which calculation shall be conclusive absent manifest error, and be accompanied by any evidence indicating the need for such additional interest as the Borrower may reasonably request).

(c) LC Disbursements. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unreimbursed amount thereof shall bear interest, for each day from the date such LC Disbursement is made to the date that such LC Disbursement is reimbursed in full by or on behalf of the Borrower or refinanced with a Revolving Borrowing, at the rate per annum then applicable to Revolving Advances that are Base Rate Loans; provided that if the Borrower shall have failed to reimburse such LC Disbursement by the time it is required to do so pursuant to Section 2.03(c)(i), interest on such unreimbursed amount shall be subject to Section 2.09(e).

(d) Usury Recapture. In the event the rate of interest chargeable under this Agreement at any time (calculated after giving effect to all items charged which constitute “interest” under applicable Legal Requirements, including fees and margin amounts, if applicable) is greater than the Maximum Rate, the unpaid principal amount of the Loans shall bear interest at the Maximum Rate until the total amount of interest paid or accrued on the Loans equals the amount of interest which would have been paid or accrued on the Loans if the stated rates of interest set forth in this Agreement had at all times been in effect. In the event, upon payment in full of the Loans, the total amount of interest paid or accrued under the terms of this Agreement and the Loans is less than the total amount of interest which would have been paid or accrued if the rates of interest set forth in this Agreement had, at all times, been in effect, then the Borrower shall, to the extent permitted by applicable Legal Requirements, pay the Administrative Agent for the account of the Lenders an amount equal to the difference between (i) the lesser of (A) the amount of interest which would have been charged on its Loans if the Maximum Rate had, at all times, been in effect and (B) the amount of interest which would have accrued on its Loans if the rates of interest set forth in this Agreement had at all times been in effect and (ii) the amount of interest actually paid under this Agreement on its Loans. In the event the Lenders ever receive, collect or apply as interest any sum in excess of the Maximum Rate, such excess amount shall, to the extent permitted by law, be applied to the reduction of the principal balance of the Loans, and if no such principal is then outstanding, such excess or part thereof remaining shall be paid to the Borrower. In determining whether the interest contracted for, charged, or received by a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Legal Requirements, (a) characterize any payment that is not principal as

 

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an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

(e) Default Interest. Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee, reimbursement of an LC Disbursement or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan or any LC Disbursement, 2% per annum plus the rate otherwise applicable to such Loan or LC Disbursement as provided in the preceding paragraphs of this Section 2.09 or (ii) in the case of any other amount, 2% per annum plus the rate applicable to Revolving Advances that are Base Rate Loans as provided in Section 2.09(a)(i).

(f) Retroactive Adjustments of Applicable Margin and Applicable Commitment Fee Rate. In the event that any financial statement or Compliance Certificate delivered pursuant to Section 5.06 is shown to be inaccurate (regardless of whether this Agreement or any of the Commitments or Loans are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Applicable Commitment Fee Rate for any period (an “Applicable Period”) than the Applicable Margin or Applicable Commitment Fee Rate, as the case may be, applied for such Applicable Period, then (i) the Borrower shall promptly deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin and the Applicable Commitment Fee Rate shall be determined as if the higher Applicable Margin or Applicable Commitment Fee Rate, as the case may be, that would have applied were applicable for such Applicable Period and (iii) the Borrower shall immediately, without further action by the Administrative Agent, any Lender or the Issuing Banks, pay to the Administrative Agent for the account of the Applicable Lenders or the applicable Issuing Bank, as the case may be, an amount equal to the excess of the interest and fees that should have been paid for such Applicable Period over the amount of interest and fees actually paid for such Applicable Period. This Section 2.09(f) shall not limit the rights of the Administrative Agent, any Lender or the Issuing Banks with respect to Section 2.09(e) and Article VII. The Borrower’s obligations under this Section 2.09(f) shall survive the termination of the Commitments and the repayment of all Obligations hereunder.

Section 2.10 Breakage Costs.

(a) Funding Losses. In the case of any Borrowing which the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate Loans, the Borrower hereby indemnifies, and agrees to indemnify, each Lender against any loss, out-of-pocket cost, or expense (other than any lost profit) incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any such loss, cost, or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund the Eurocurrency Rate Loan to be made by such Lender as part of such Borrowing when such Eurocurrency Rate Loan, as a result of such failure, is not made on such date.

 

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(b) Prepayment Losses. If (i) any payment of principal of any Eurocurrency Rate Loan is made other than on the last day of the Interest Period for such Loan as a result of any prepayment, payment pursuant to Section 2.08, the acceleration of the maturity of the Obligations, or for any other reason or (ii) the Borrower fails to make a principal or interest payment with respect to any Eurocurrency Rate Loan on the date such payment is due and payable, the Borrower shall, within three (3) Business Days of any written demand sent by the Administrative Agent on behalf of a Lender to the Borrower, pay to the Administrative Agent for the benefit of such Lender any amounts determined by such Lender to be required to compensate such Lender for any additional losses, out-of-pocket costs, or expenses (other than any anticipated lost profits) which it may reasonably incur as a result of such payment or nonpayment, including, without limitation, any such loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loans.

(c) Assignment Losses. If any assignment of a Eurocurrency Rate Loan is made other than on the last day of the Interest Period for such Loan as a result of a request by the Borrower pursuant to clause (e) of Section 2.16, the Borrower shall, within three (3) Business Days of any written demand sent by the Administrative Agent on behalf of the Lender that is the assignee thereof to the Borrower, pay to the Administrative Agent for the benefit of such Lender any amounts determined by such Lender to be required to compensate such Lender for any additional losses, out-of-pocket costs, or expenses (other than any anticipated lost profits) which it may reasonably incur as a result of such assignment, including, without limitation, any such loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.

(d) Certificate. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.10 shall be delivered to the Borrower and the Administrative Agent and shall be conclusive absent manifest error.

Section 2.11 Increased Costs.

(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 Lender (except any reserve requirement reflected in the Eurocurrency Rate Reserve Percentage), or any Issuing Bank; or

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

and the result of any of the foregoing shall be to increase the cost to such 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 Lender or such Issuing Bank of participating in, issuing or

 

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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 Lender or such Issuing Bank (whether of principal, interest or any other amount) then, upon request of such Lender or such Issuing Bank, the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

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

(c) Certificates for Reimbursement. A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or any of their respective holding companies, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, 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 Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section 2.11 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’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 nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Designation of Alternative Applicable Lending Office. Each Lender and each Issuing Bank agrees to use commercially reasonable efforts (consistent with its respective internal policies and subject to legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such designation would avoid the effect of this Section 2.11, would not subject such Lender to any unreimbursed cost or expense and would not, in the reasonable judgment of such Lender or Issuing Bank, as applicable, be otherwise materially disadvantageous to such Lender or Issuing Bank.

 

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Section 2.12 Payments and Computations.

(a) Payment Procedures. The Borrower shall make each payment under this Agreement prior to the time expressly required hereunder (or, if no such time is expressly required, not later than 12:00 noon (New York time)) on the day when due to the Administrative Agent at the Administrative Agent’s Applicable Lending Office in immediately available funds; provided that payments specified to be made directly to an Issuing Bank or any other Person, including payments pursuant to Sections 2.10, 2.11, 2.13 and 10.04, shall be made directly to the Persons entitled thereto. Each Loan shall be repaid and each payment of interest thereon shall be paid in Dollars. All payments shall be made without setoff, deduction, or counterclaim. The Administrative Agent will, promptly after receipt by it of any payment for the account of any other Person, and in any event prior to the close of business on the day any timely payment is made, cause to be distributed like funds to the appropriate recipient.

(b) Computations. All computations of interest based on the Prime Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Federal Funds Effective Rate or the Eurocurrency Rate and of fees shall be made by the Administrative Agent, on the basis of a year of 360 days, in each case for the actual number of days (including the first day, but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate shall be conclusive and binding for all purposes, absent manifest error.

(c) Non-Business Day Payments. Whenever any payment shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be.

(d) Agent Reliance. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank, 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 Overnight Rate. A notice of the Administrative Agent to any Lender or Borrower with respect to any amount owing under this clause (d) shall be conclusive, absent manifest error

 

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Section 2.13 Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if any Loan Party shall be required by any Legal Requirement to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, each Lender or the applicable Issuing Bank, 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 shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with Legal Requirements.

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

(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing Bank, 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 under this Section) paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, on or with respect to any payment by or on account of any obligation of any Loan Party hereunder, 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 Lender or the applicable Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the applicable Issuing Bank, 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 Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Legal Requirements or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Legal Requirements or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender or any Issuing Bank if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Legal Requirements 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 Lender

 

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or such Issuing Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.13(f) below, with the exception of Section 2.13(f)(v)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(f) Without limiting the generality of the foregoing, each Lender agrees to deliver to the Borrower and the Administrative Agent applicable forms, certificates or documents, including IRS Form W-9 (in the case of a Lender that is not a Foreign Lender), as may be required under the Code or other Legal Requirements as a condition to exemption from, or reduction of, United States withholding or backup withholding Tax. Each 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 Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(i) two duly completed copies of IRS Form W-8BEN or Internal Revenue Service Form W-8IMY (with applicable attachments) claiming eligibility for benefits of an income tax treaty to which the United States of America is a party,

(ii) two duly completed copies of IRS Form W-8ECI,

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the 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 Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (D) conducting a trade or business in the United States of America with which the relevant payments are effectively connected and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8IMY (with applicable attachments),

(iv) in the case of a Foreign Lender that is not the beneficial owner of payments made hereunder or under any other Loan Document (including a partnership of a participating Lender) (x) an IRS Form W-8IMY on behalf of itself and (y) the relevant form prescribed in this Section 2.13(f) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; or

(v) any other form prescribed by Legal Requirements as a basis for claiming exemption from or a reduction in United States Federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by Legal Requirements to permit the Withholding Agent to determine the withholding or deduction required to be made.

 

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If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times prescribed by Legal Requirements and at such time or times reasonably requested by such Withholding Agent, (A) a certification signed by an authorized officer thereof and (B) other documentation prescribed by Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent sufficient for the Withholding Agent to comply with its obligations under FATCA and to determine whether such Lender has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this Section 2.13(f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(g) Treatment of Certain Refunds. If the Administrative Agent, a Lender or any Issuing Bank determines, in its sole discretion, that it has received a refund of any 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 2.13, 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 2.13 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing Bank, 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 Lender or such Issuing Bank, 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 Lender or such Issuing Bank in the event the Administrative Agent, such Lender or such Issuing Bank is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank 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.

(h) Defined Terms. For purposes of this Section 2.13, the term “Lender” includes any Issuing Bank and the term “Legal Requirements” includes FATCA.

Section 2.14 Sharing of Payments, Etc. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations than the proportion received by any other Lenders, then the Lender 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 such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such

 

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payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.14 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 Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letters of Credit to any assignee or participant. Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.

Section 2.15 Applicable Lending Offices. Each Lender may book its Loans at any Applicable Lending Office selected by such Lender and may change its Applicable Lending Office from time to time. All terms of this Agreement shall apply to any such Applicable Lending Office and the Loans shall be deemed held by each Lender for the benefit of such Applicable Lending Office. Each Lender may, by written notice to the Administrative Agent and the Borrower designate replacement or additional Applicable Lending Offices through which Loans will be made by it and for whose account repayments are to be made.

Section 2.16 Replacement of Lenders. If (a) any Lender provides a notice under Section 2.02(c)(iv), (b) any Lender requests compensation under Section 2.11, (c) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, (d) any Lender becomes a Defaulting Lender or a Potential Defaulting Lender, (e) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that under Section 10.01 requires the consent of all the Lenders (or all the affected Lenders or all the Lenders of the affected Class) and with respect to which the Majority Lenders (or, in circumstances where Section 10.01 does not require the consent of the Majority Lenders, a majority in interest of the Lenders of the affected Class) shall have granted their consent or (f) any Lender is a Non-Extending Lender, then the Borrower may, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.06), all its interests, rights and obligations under this Agreement and the other Loan Documents (or, in the case of any such assignment and delegation resulting from such Lender becoming a Defaulting Lender or a Potential Defaulting Lender or from a failure to provide a consent, all its interests, rights and obligations under this Agreement and the other Loan Documents as a Lender of a particular Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (except in the case of any such assignment and delegation resulting from a Lender being a Non-Extending Lender) and, if a Revolving Commitment is being assigned, each Issuing Bank, in each case which consent shall not unreasonably be withheld, delayed or conditioned, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and LC Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder as a Lender (or as a Lender of a particular Class, as applicable), from the assignee or the Borrower,

 

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(iii) in the case of any such assignment and delegation resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to Section 2.13, such assignment will result in a reduction in such compensation or payments, (iv) in the case of any such assignment and delegation resulting from the failure to provide a consent, the assignee shall have given such consent and, as a result of such assignment and delegation and any contemporaneous assignments and delegations and consents, the applicable amendment, waiver, discharge or termination can be effected, (v) in the case of any such assignment and delegation resulting from a Lender being a Non-Extending Lender, the Non-Extended Revolving Commitments so assigned shall be converted into Extended Revolving Commitments pursuant to, and in accordance with, Section 2.18(b) and (vi) that no more than 25% of the aggregate Commitments can be assigned to such other Lenders or Eligible Assignees pursuant to this Section 2.16 at any one time. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply.

Section 2.17 Defaulting Lenders.

(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Revolving Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement or any other Loan Document shall be restricted as set forth in Section 10.01.

(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.07 or 2.08, or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 7.05), shall be applied at such time or times as may be determined by the Administrative Agent as follows:

(A) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;

(B) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the applicable Issuing Bank hereunder;

(C) third, if so determined by the Administrative Agent or requested by the applicable Issuing Bank, to be held as Cash Collateral for future funding obligations of such Defaulting Lender of any participation in any Letter of Credit;

(D) fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;

(E) fifth, if so determined by the Administrative Agent and the

 

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Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement;

(F) sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;

(G) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and

(H) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Advances in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) in the case of such Loans, such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans and LC Advances of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans or LC Advances of such Defaulting Lender.

Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by such Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents to the foregoing.

(iii) Certain Fees. Such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 2.06(b) or any letter of credit fee pursuant to Section 2.06(c) for any period during which such Lender is a Defaulting Lender (and, except as otherwise provided in Section 2.06(c), the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).

(iv) Reallocation of Ratable Portions to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, solely for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.03, the “Applicable Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of such Defaulting Lender; provided, that (A) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (B) the aggregate obligation of any non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Revolving Commitment of such non- Defaulting Lender minus (2) the aggregate Revolving Advances of such non-Defaulting Lender.

 

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(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and the Issuing Banks agree in writing in their sole discretion that 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 cash collateral), such Lender will, to the extent applicable, purchase that portion of outstanding Revolving Advances of the other Revolving Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and participations in Letters of Credit to be held on a pro rata basis by the Revolving Lenders in accordance with their Applicable Percentages (without giving effect to clause (a)(iv) above), whereupon such Lender will cease to be a Defaulting Lender; 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 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 Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c) Replacement of Defaulting Lenders. If any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to be replaced in accordance with Section 2.16.

(d) Termination of Defaulting Lender Revolving Commitment. The Borrower may terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Revolving Lenders thereof), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.

Section 2.18 Revolving Commitment Extensions.

(a) Conversion. At any time after the Restatement Effective Date, any Non-Extending Revolving Lender may, subject to the prior written consent of the Borrower and each Issuing Bank (such consent from each Issuing Bank not to be unreasonably withheld or delayed), elect to convert all or any portion of its Non-Extended Revolving Commitment into an Extended Revolving Commitment (it being understood that, in the case of any Non-Extending Revolving Lender acquiring its Non-Extended Revolving Commitment after the Restatement Effective Date pursuant to an Assignment and Acceptance, such conversion may be made substantially concurrently with the effectiveness of the assignment and delegation contemplated by such Assignment and Acceptance). Any such conversion shall be effective upon delivery to the Administrative Agent of a writing signed by such Non-Extending Revolving Lender, the Borrower and each Issuing Bank specifying the amount of such Non-Extending Revolving Lender’s Non-Extended Revolving Commitment to be so converted and the effective date thereof.

 

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(b) Status; Amendments. Any Non-Extended Revolving Commitment converted pursuant to this Section 2.18 shall for all purposes hereof and of the other Loan Documents be deemed an Extended Revolving Commitment and the converting Non-Extending Revolving Lender shall, to the extent of the amount of its Non-Extended Revolving Commitment so converted, be deemed an Extending Revolving Lender and shall have all the rights and obligations of an Extending Revolving Lender hereunder and under the other Loan Documents, in each case as of the effectiveness of such conversion. The Administrative Agent shall use commercially reasonable efforts to give notice to the Revolving Lenders of the effectiveness of any conversion pursuant to this Section 2.18. The Administrative Agent may, with the consent of the Borrower, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.18 (and each such amendment is hereby deemed consented to (and not requiring any further consent or agreement of) the Majority Lenders, the Majority Revolving Lenders and each other Person that is a party to the Amendment and Restatement Agreement).

ARTICLE III

CONDITIONS OF LENDING

Section 3.01 Conditions Precedent to the Amendment and Restatement. The amendment and restatement of the Original Credit Agreement, as in effect immediately prior to the Restatement Effective Date, to be in the form hereof is subject to the conditions precedent set forth in the Amendment and Restatement Agreement.

Section 3.02 Conditions Precedent to each Subsequent Loan and Letter of Credit. The obligation of any Issuing Bank to make any LC Credit Extension after the Closing Date and the obligation of the Lenders to make Revolving Advances to the Borrower after the Closing Date or to make Incremental Term Loans on the Restatement Effective Date shall be subject to the conditions precedent (and each Letter of Credit Request or Notice of Borrowing, as applicable, shall constitute a representation and warranty by the Borrower that such statements are true):

(a) the representations and warranties of the Loan Parties contained in Article IV and in each other Loan Document are true and correct in all material respects (provided that to the extent any representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects) on and as of the date of such LC Credit Extension or the making of such Revolving Advances or Incremental Term Loans, both before and after giving effect to such LC Credit Extension or the making of such Revolving Advances or Incremental Term Loans, except to the extent any such representation and warranty relates to an earlier date, in which case such representation and warranty is true and correct in all material respects (provided that to the extent any such representation and warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects) as of such earlier date; and

 

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(b) no Default or Event of Default has occurred and is continuing or would result from such LC Credit Extension or the making of such Revolving Advances or Incremental Term Loans.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Each Loan Party jointly and severally represents and warrants as follows:

Section 4.01 Existence. Each of the Parent and its Subsidiaries is duly organized, validly existing, and (to the extent the concept is applicable in such jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation and in good standing and qualified to do business in each jurisdiction where its ownership or lease of property or conduct of its business requires such qualification and where a failure to be in good standing and so qualified could reasonably be expected to have a Material Adverse Effect.

Section 4.02 Power and Authority. Each of the Loan Parties has the requisite organizational power and authority to (a) own its assets and carry on its business and (b) execute, deliver and perform the Loan Documents to which it is a party and to consummate the Transactions. Each of the Loan Parties has all requisite material governmental licenses, authorizations, consents and approvals to own its assets and carry on its business.

Section 4.03 No Contravention. The execution, delivery, and performance by each Loan Party of this Agreement and the other Loan Documents to which it is a party and the consummation of the Transactions (a) have been duly authorized by all necessary organizational action on the part of such Loan Party, (b) do not and will not (i) contravene the terms of such Loan Party’s Organizational Documents, (ii) violate any Legal Requirement, or (iii) conflict with or result in any breach or contravention of, or the creation of any Lien (other than any Lien created under the Loan Documents) under, (A) the provisions of any indenture, instrument, agreement or Material Contract to which such Loan Party is a party or by which it or its property is bound (including the 6.5% Convertible Senior Notes) or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject, except, in the case of clauses (b)(ii) and (b)(iii) above (other than with respect to the 6.5% Convertible Senior Notes), to the extent any of the foregoing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 4.04 Authorizations and Approvals. No authorization, approval, consent, exemption, or other action by, or notice to or filing with, any Governmental Authority is necessary or required on the part of any Loan Party in connection with the execution, delivery and performance by any Loan Party of this Agreement or the other Loan Documents to which it is a party or the consummation of the transactions contemplated hereby or thereby, except (a) such as have been obtained or made and are in full force and effect, (b) filings necessary to perfect (or maintain perfection of) Liens created under the Loan Documents and (c) actions by, and notices to or filings with, Governmental Authorities (including, without limitation, the SEC) that may be required in the ordinary course of business from time to time or that may be required to comply with the express requirements of the Loan Documents (including, without limitation, to release existing Liens on the Collateral or to comply with requirements to perfect, and/or maintain the perfection of, Liens created under the Loan Documents).

 

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Section 4.05 Enforceable Obligations. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is a party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or similar law affecting creditors’ rights generally or general principles of equity.

Section 4.06 Financial Statements; No Material Adverse Effect.

(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present, in all material respects, the financial condition of the Parent and its Subsidiaries as of the dates of the balance sheets included therein and the results of operations of the Parent and its Subsidiaries for the periods covered thereby in accordance with GAAP, and (iii) to the extent required by GAAP, disclose all material Debt and other liabilities (contingent or otherwise), including liabilities for Taxes, of the Parent and its Subsidiaries as of the date thereof.

(b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present, in all material respects, the financial condition of the Parent and its Subsidiaries as of the dates of the balance sheets included therein and the results of operations of the Parent and its Subsidiaries for the periods covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to year-end audit adjustments.

(c) Since December 31, 2011, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a material adverse effect on the business, results of operations, properties or condition (financial or otherwise) of the Parent and its Subsidiaries, take as a whole, except to the extent any such event or circumstance is disclosed in public filings made by the Parent with the SEC since such date but prior to the Restatement Effective Date (in each case, including any such disclosure in respect of the nature, magnitude or consequences of such change or event, but excluding any disclosures set forth in the risk factor section or any other section of any such filing to the extent they are cautionary, predictive or forward-looking in nature).

Section 4.07 True and Complete Disclosure. Each Loan Party has disclosed to the Administrative Agent and the Lenders all material agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it (other than matters of general economics or industry nature or otherwise not specific to the Parent and its Subsidiaries), that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of (a) any written or formally presented information (other than the Projections and information of general economic or industry nature) furnished by

 

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or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or (b) any report, financial statement or other written or formally presented information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender delivered pursuant to the Loan Documents, when taken as a whole and as modified or supplemented by other information so furnished, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are or will be made, not misleading; provided that, with respect to projected financial information (including the Projections and any projections delivered pursuant to Section 5.06(d)), the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time made (it being understood that actual results may vary materially from the projected financial information).

Section 4.08 Litigation. Except as set forth on Schedule 4.08, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Responsible Officer of a Loan Party, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against the Parent or any of its Subsidiaries or against any of its or their properties or revenues that (a) pertain to this Agreement, any other Loan Document or any of the Transactions or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. Since the Restatement Effective Date, there has been no adverse change in the status, or financial effect on the Parent and its Subsidiary, of the matters described in Schedule 4.08 that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

Section 4.09 Compliance with Laws.

(a) None of the Parent, any of its Subsidiaries or any of their respective material properties is in violation of, nor will the continued operation of their material properties as currently conducted violate, any Legal Requirement (including any Environmental Law) or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, in either case where such violation or default could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) None of the Parent or any of its Subsidiaries is in violation of the FCPA, the Currency and Foreign Transactions Reporting Act of 1970 or any related or similar rules or regulations, issued, administered or enforced by any Governmental Authority that are applicable to it, and, to the knowledge of the Loan Parties, no director, officer or employee of the Parent or any of its Subsidiaries is subject to any United States sanctions administered by OFAC, in each case where such violation or sanctions could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 4.10 No Default. None of the Parent or any of its Subsidiaries has violated or defaulted under any agreement or instrument to which it is a party, where such violation or default has resulted in, or could, either individually or in the aggregate, reasonably be expected to result in, a Material Adverse Effect. No Default has occurred and is continuing.

 

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Section 4.11 Subsidiaries; Corporate Structure. Schedule 4.11 sets forth, as of the Restatement Effective Date, (i) a list of all Subsidiaries of the Parent and, as to each such Subsidiary, the jurisdiction of formation and the outstanding Equity Interests therein and the percentage of each class of such Equity Interests owned by the Parent and its Subsidiaries, and (ii) an indication of such Subsidiaries of the Parent that are Guarantors. The Equity Interests indicated as owned (or to be owned) by the Parent and its Subsidiaries on Schedule 4.11 are fully paid and non-assessable.

Section 4.12 Condition of Properties.

(a) Each of the Parent and its Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, all real property material to the conduct of its business, except for such minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except for Permitted Liens.

(b) Each of the Parent and its Subsidiaries has complied with all obligations under all material leases with respect to real property to which it is a party, all such leases are in full force and effect and the Parent or such Subsidiary enjoys peaceful and undisturbed possession under all such leases, in each case except to the extent any of the foregoing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 4.13 Environmental Condition. Except as set forth on Schedule 4.13 and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect:

(a) The Parent and its Subsidiaries (i) have obtained all Environmental Permits necessary for the ownership and operation of their respective properties and the conduct of their respective businesses as currently conducted; (ii) have been and are in compliance with all terms and conditions of such Environmental Permits and with all other requirements of applicable Environmental Laws; (iii) have not received written notice alleging that the Parent or any of its Subsidiaries is in violation of any Environmental Law or Environmental Permit; and (iv) are not subject to any actual or, to their knowledge, contingent Environmental Claim.

(b) None of the present or, during the period of ownership and operation by the Parent or its Subsidiaries, previously owned or operated properties of the Parent or any of its present or former Subsidiaries, wherever located, (i) has been placed on or, to their knowledge, proposed to be placed on the National Priorities List, CERCLIS, or their state or local analogs, nor has the Parent or any of its Subsidiaries been otherwise notified in writing of the designation, listing or identification of any property of the Parent or any of its Subsidiaries as a potential site requiring removal, remediation, cleanup, closure, restoration, reclamation, or other response activity (“Response”) under any Environmental Laws (except as such activities may be required by permit conditions); (ii) is subject to a Lien (other than Permitted Liens), arising under or pursuant to any Environmental Laws, that attaches to any revenues of the Parent or its Subsidiaries or to any property currently owned or operated by the Parent or any of its Subsidiaries, wherever located; or (iii) has been the site of any Release (as defined under any Environmental Law) of Hazardous Material from present or past operations which has caused at

 

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the site or at any third-party site any condition that has resulted in or could reasonably be expected to result in a requirement pursuant to applicable Environmental Law for Response by the Parent or any of its Subsidiaries and none of the Parent or any of its Subsidiaries has generated or transported or has caused to be generated or transported Hazardous Material to any third party site which could reasonably be expected to result in a requirement pursuant to applicable Environmental Law for Response by the Parent or any of its Subsidiaries.

Section 4.14 Insurance.

(a) Schedule 4.14 sets forth a true and complete list of all insurance maintained by the Parent and its Subsidiaries as of the Restatement Effective Date. As of the Restatement Effective Date, such insurance is in full force and effect and all premiums have been duly paid.

(b) The properties of the Parent and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Parent or any of its Subsidiaries, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Parent and its Subsidiaries operate.

Section 4.15 Taxes. In accordance with the tax laws, regulations, official pronouncements and practices of each tax jurisdiction, the Parent and each of its Subsidiaries have filed or are in the process of filing all material Federal, state and other tax returns and reports required to be filed, and have paid or will pay, before the same shall become in default, all Federal, state and other Taxes, except those which are being contested or extended in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against the Parent or any Subsidiary thereof that could reasonably be expected to have a Material Adverse Effect.

Section 4.16 ERISA Compliance.

(a) The Parent and its ERISA Affiliates are in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and other Legal Requirements published thereunder.

(b) Each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Pension Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or may rely upon an opinion letter for a prototype plan letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Parent, nothing has occurred which would prevent, or cause the loss of, such qualification. The Parent and each ERISA Affiliate have made all required contributions to each Pension Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan.

(c) (i) No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of the Parent or any of its ERISA Affiliates; (ii) no Pension Plan had any

 

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Unfunded Pension Liability as of the last annual valuation date applicable thereto; (iii) neither the Parent nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Parent nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such material liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Parent nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

(d) Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, with respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party that is not subject to United States law (a “Foreign Plan”):

(i) any employer contributions and, to the knowledge of each Loan Party, any employee contributions, in each case required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices;

(ii) the fair market value of the assets of each Foreign Plan required by law to be funded, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing Date, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and

(iii) each Foreign Plan required to be registered has been registered and, to the knowledge of the Loan Parties, has been maintained in good standing with applicable regulatory authorities.

Section 4.17 Security Interests.

(a) The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as defined in the Security Agreement) and, when financing statements in appropriate form are filed in the applicable filing offices under the applicable UCC, the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of such Collateral in which a security interest may be perfected by the filing of a financing statement under the applicable UCC, in each case prior and superior in right to any other Person, other than Permitted Liens.

(b) The Intellectual Property Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security

 

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interest in the Collateral (as defined in the Intellectual Property Security Agreement) and, when financing statements in appropriate form are filed in the applicable filing offices under the applicable UCC and the Intellectual Property Security Agreement is recorded with the United States Patent and Trademark Office or the United States Copyright Office, the Intellectual Property Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such portion of such Collateral in which a security interest may be perfected by the recordation of the Intellectual Property Security Agreement with such Offices, in each case prior and superior in right to any other Person, other than Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in such Collateral acquired by the Loan Parties after the Effective Date).

(c) The Pledge Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as defined in the Pledge Agreement) and, when such Collateral (to the extent such Collateral constitutes an instrument or certificated security under the applicable UCC) is delivered to the Collateral Agent and financing statements in appropriate form are filed in the applicable filing offices under the applicable UCC, the Pledge Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the pledgors thereunder in such Collateral, in each case prior and superior in right to any other Person, other than the Permitted Liens.

(d) Each Mortgage is effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien in the Mortgaged Property subject thereto and, when appropriate filings or registrations are made as specified in such Mortgage, such Mortgage shall constitute a fully perfected Lien on all right, title and interest of the mortgagor thereunder in such Mortgaged Property, prior and superior in right to any other Person, other than Permitted Liens.

Section 4.18 Bank Accounts. The Perfection Certificate sets forth the account numbers and locations of all bank accounts of the Loan Parties as of the Restatement Effective Date (other than any such accounts that are Excluded Property).

Section 4.19 Labor Relations. There (a) is no unfair labor practice complaint pending against the Parent or any of its Subsidiaries or, to the knowledge of any Responsible Officer of the Parent, threatened against any of them, before the National Labor Relations Board, (b) is no grievance or arbitration proceeding arising out of or under any collective bargaining agreement pending against the Parent or any of its Subsidiaries or, to the knowledge of any Responsible Officer of the Parent, threatened against any of them before the National Labor Relations Board, and (c) are no strikes, lockouts, slowdowns or stoppage against the Parent or any of its Subsidiaries pending or, to the knowledge of any Responsible Officer of the Parent, threatened, in each case where any of the foregoing could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The hours worked by and payments made to employees of the Parent and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable federal, state, provincial, local or foreign law dealing with such matters, except where such violation, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. All payments due from the Parent or

 

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any Subsidiary, or for which any claim may be made against the Parent or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of the Parent or such Subsidiary, except where the failure to do the same, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The consummation of the transactions contemplated hereby will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Parent or any of its Subsidiaries is a party.

Section 4.20 Intellectual Property. The Parent and each of its Subsidiaries own or are licensed or otherwise have full legal right to use all of the patents, trademarks, service marks, trade names, copyrights, franchises, authorizations and other rights that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person with respect thereto, except where the absence of such rights or such conflicts could not reasonably be expected to have a Material Adverse Effect.

Section 4.21 Solvency. Immediately following the making of each Loan and after giving effect to the application of the proceeds of each Loan, each of the Parent, the Borrower and the Parent and its Subsidiaries, taken as a whole, is or are Solvent.

Section 4.22 Margin Regulations. None of the Loan Parties is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board), or extending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of the provisions of the Regulations of the Federal Reserve Board, including Regulation T, U or X.

Section 4.23 Investment Company Act. Neither the Parent nor any of its Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

Section 4.24 Names and Locations. The Perfection Certificate sets forth, as of the Restatement Effective Date, (a) the exact legal name of each Loan Party as it appears in its articles or certificate of incorporation (or equivalent Organizational Document), the state of its incorporation or formation and the organizational identification number (or a specific designation that one does not exist) issued by its state of incorporation or formation and (b) the location of the chief executive office of each Loan Party.

Section 4.25 Use of Proceeds. The proceeds of the Revolving Advances, Term Loans and Letters of Credit shall be used to provide working capital and for other general corporate purposes of the Parent and its Subsidiaries and/or to pay a portion of the fees, commissions and expenses associated with the Transactions.

Section 4.26 Foreign Assets Control Regulations, etc. No part of the proceeds of the Loans will be used, directly or indirectly, (a) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA or (b) for the purpose of directly or indirectly financing the activities of any Person subject to any United States sanctions administered by OFAC.

 

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ARTICLE V

AFFIRMATIVE COVENANTS

From and after the Restatement Effective Date, so long as the Loans or any amount under any Loan Document shall remain unpaid, any Lender shall have any Commitment, or there shall exist any Letter of Credit Exposure, each Loan Party shall, and shall cause each of its Subsidiaries to:

Section 5.01 Preservation of Existence, Etc. Except as permitted by Section 6.03 or 6.04, (a) preserve, renew and maintain in full force and effect its legal existence and (to the extent the concept is applicable in such jurisdiction) good standing under the Legal Requirements of the jurisdiction of its formation, (b) take all reasonable action to obtain, preserve, renew, extend, maintain and keep in full force and effect all rights, privileges, permits, licenses, authorizations and franchises necessary or desirable in the normal conduct of its business, and (c) qualify and remain qualified as a foreign entity in each jurisdiction in which qualification is necessary in view of its business and operations or the ownership of its properties, except, in the case of clauses (b) and (c), where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.02 Compliance with Laws, Etc. Comply with all Legal Requirements (including, without limitation, all Environmental Laws and ERISA) applicable to it or to its business or property, except in such instances in which such Legal Requirement is being contested in good faith by appropriate proceedings diligently conducted and except where failure so to comply could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.03 Maintenance of Property. Except as permitted by Section 6.03 or 6.04, maintain and preserve all property material to the conduct of the business of the Parent and its Subsidiaries, taken as a whole, and keep such property in all material respects in good repair, working order and condition, ordinary wear and tear excepted.

Section 5.04 Maintenance of Insurance.

(a) Maintain with financially sound and reputable insurance companies not Affiliates of the Parent or any of its Subsidiaries insurance with respect to its properties (including Mortgaged Properties) and business in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses as the Parent and its Subsidiaries operate; provided that the Parent and its Subsidiaries may self-insure up to the same extent as such other companies.

(b) (i) Cause all property insurance policies covering any Collateral maintained by any Loan Party to be endorsed or otherwise amended to include a customary lender’s loss payable endorsement in favor of the Collateral Agent or name the Collateral Agent as loss payee, in each case in form and substance reasonably satisfactory to the Collateral Agent, which

 

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endorsement shall provide that if the insurance carrier shall have received written notice from the Collateral Agent of the occurrence of an Event of Default, the insurance carrier shall pay all proceeds otherwise payable to a Loan Party under such policies directly to the Collateral Agent, (ii) cause each such policy to provide that it shall not be canceled, modified or not renewed upon less than thirty (30) days (or, in the case of any of the foregoing resulting from failure to pay premiums, upon less than ten (10) days) (or, in each case, such shorter number of days as may be agreed to by the Collateral Agent) prior written notice thereof by the insurer to the Collateral Agent, (iii) deliver to the Collateral Agent, upon the cancellation, modification or nonrenewal of any such policy of insurance, a certificate of coverage under any renewal or replacement policy, and (iv) cause all liability insurance policies (other than policies with respect to worker’s compensation and other policies where such designation is not customary) maintained by any Loan Party to name the Collateral Agent as an additional insured.

(c) If at any time the area in which any Mortgaged Property is located is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance in such total amount as required by Regulation H of the Federal Reserve Board, as the same is from time-to-time in effect, and all official rulings and interpretations thereunder or thereof may from time to time require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time.

Section 5.05 Payment of Taxes. Pay and discharge as the same shall become due and payable all Taxes imposed upon it or upon its income or profits or in respect of its property, unless (a) the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the applicable Person or (b) the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.06 Reporting Requirements. In the case of the Parent, deliver to the Administrative Agent and, in the case of clause (i) or (l) below, the applicable Lender:

(a) Audited Annual Financials. Within ten (10) days after the date on which the Parent is required to file its Annual Report on Form 10-K for any fiscal year with the SEC (or if no such requirement is in effect for any reason, within ninety (90) days after the end of any fiscal year), copies of the audited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year, together with the related audited consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, and the notes thereto, setting forth in each case in comparative form the audited consolidated figures as of the end of and for the previous fiscal year, all prepared in accordance with GAAP and accompanied by a report and opinion of PricewaterhouseCoopers LLP or another independent registered public accounting firm of recognized national standing or otherwise reasonably acceptable to Administrative Agent, which report and opinion shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Parent and its Subsidiaries as at the end of such fiscal year and their consolidated results of operations and cash flows for such fiscal year in conformity with GAAP (or words substantially similar to the foregoing) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;

 

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(b) Quarterly Financials. Within five (5) days after the date on which the Parent is required to file its Quarterly Report on Form 10-Q for any fiscal quarter with the SEC (or if no such requirement is in effect for any reason, within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year), a condensed consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal quarter, and the related condensed consolidated statements of operations and cash flows for such fiscal quarter (in the case of such statement of operations) and for the portion of the Parent’s fiscal year then ended, and setting forth in comparative form the consolidated figures for the corresponding fiscal quarter of the previous fiscal year or the corresponding portion of the previous fiscal year, as applicable, all certified by a Financial Officer of the Parent as fairly presenting, in all material respects, the consolidated financial position of the Parent and its Subsidiaries as at the end of such fiscal quarter, their consolidated results of operations for such fiscal quarter and their consolidated cash flows for such portion of the Parent’s fiscal year in conformity with GAAP (or words substantially similar to the foregoing), subject only to year-end audit adjustments and the absence of footnotes;

(c) Compliance Certificates. (i) Concurrently with the delivery of the financial statements referred to in Section 5.06(a), a certificate of the independent registered public accounting firm rendering the report thereon stating whether, in connection with their audit examination, any condition or event has come to their attention which would cause them to believe that any Default or Event of Default with respect to accounting matters existed on the date of such financial statements and, if such a condition or event has come to their attention, specifying in reasonable detail the nature and period, if known, of existence thereof (which certificate may be limited to the extent required by accounting rules and guidelines) and (ii) concurrently with the delivery of the financial statements referred to in Sections 5.06(a) and (b), a duly completed Compliance Certificate signed by a Financial Officer of the Parent, which shall, among other things, (A) state whether any change in GAAP or in the application thereof has occurred since the date of the consolidated balance sheet of the Parent most recently theretofore delivered under Section 5.06(a) or (b) (or, prior to the first such delivery, referred to in Section 4.06) and, if any such change has occurred, setting forth in reasonably detail such change and (B) in the case of any such Certificate delivered concurrently with the delivery of the financial statements referred to in Section 5.06(a), set forth a reasonably detailed calculation of Excess Cash Flow for the applicable fiscal year;

(d) Projections. Within ninety (90) days after the end of each fiscal year of the Parent, commencing with the fiscal year ending December 31, 2010, a certified copy of the Parent’s forecasted consolidated (and, if reasonably requested by the Administrative Agent, consolidating by operating segment) (i) balance sheet, (ii) profit and loss statement, (iii) cash flow statement and (iv) capitalization statement, in each case as of the last day of or for each of the two fiscal years immediately following the end of such fiscal year, together with appropriate supporting details and a statement of underlying assumptions in a format consistent with the Projections and otherwise reasonably acceptable to the Administrative Agent;

 

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(e) Internal Controls. Promptly upon receipt thereof, copies of any audit or other reports delivered to the board of directors of the Parent (or the audit committee of such board) by an independent registered public accounting firm in connection with such firm’s audit of the consolidated financial statements of the Parent if such reports identify material weaknesses in internal controls over financial reporting of the Parent;

(f) Supplemental Perfection Certificate and Other Collateral Matters. Concurrently with the delivery of the financial statements referred to in Section 5.06(a) and (b), a duly completed Supplemental Perfection Certificate signed by a Responsible Office of the Parent;

(g) Securities Law Filings and other Public Information. Promptly after the same are publicly available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Parent, and copies of all annual, periodic and special reports and registration statements which the Parent files with the SEC under Section 13 or 15(d) of the Exchange Act or with any other securities Governmental Authority, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;

(h) Press Releases. To the extent not otherwise provided for herein, as soon as available, any press release or other public announcement or statement by the Loan Parties;

(i) Patriot Act. Promptly, following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act;

(j) Material Contracts. Promptly after receipt thereof by any Loan Party, a copy of any notice of any default or material claim, any waiver, or any termination of or under any Material Contract or, in the case of the 6.5% Indenture, any amendment or proposed amendment thereto.

(k) Monthly Cash and Backlog Reports. Within 20 Business Days after the end of each month, (1) the amount of cash and cash equivalents of the Parent and its Subsidiaries as of the end of such month and (2) an internal backlog report consistent with the detail (but omitting any commentary) in the Parent’s Quarterly Report on Form 10-Q and Annual Report on Form 10-K and otherwise in form reasonably acceptable to the Administrative Agent; and

(l) Other Information. Such other information respecting the business, properties or Collateral, or the condition or operations, financial or otherwise, of the Parent and its Subsidiaries as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request (including, but not limited to, receivables and payables aging schedules).

Documents required to be delivered pursuant this Section 5.06 may be delivered electronically and, in the case of Sections 5.06(a), (b), (g), (h) and (j) shall be deemed to have been delivered if such documents, or one or more annual, quarterly or other reports or filings containing such documents (including, in the case of certifications required pursuant to Section 5.06(b), the certifications accompanying any such quarterly report pursuant to Section 302 of the Sarbanes-Oxley Act of 2002), (i) shall have been posted or provided a link to on the Parent’s

 

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website on the Internet at the website at http://www.willbros.com, (ii) shall be available on the website of the SEC at http://www.sec.gov or (iii) shall have been posted on the Parent’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall not have an obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Parent with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Borrower hereby acknowledges that (a) the Agents will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to any Loan Party or its securities) (each, a “Public Lender”). If any Borrower Materials are designated by the Loan Parties as “PRIVATE”, such Borrower Materials will not be made available to that portion of the Platform designated “Public Investor,” which is intended to contain only information that (x) prior to any public offering of securities by any Loan Party, is of a type that would be contained in a customary offering circular for an offering of debt securities made in reliance on Rule 144A under the Securities Act or (y) following any public offering of securities by a Loan Party, is either publicly available or not material information (though it may be sensitive and proprietary) with respect to such Loan Party or its securities for purposes of United States Federal and State securities laws. The Agents shall be entitled to treat any Borrower Materials that are not marked “PRIVATE” or “CONFIDENTIAL” as not containing any material non-public information with respect to the Loan Parties or any securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07).

Section 5.07 Other Notices. In the case of the Parent, deliver to the Administrative Agent:

(a) Defaults. Prompt written notice of the occurrence of any Default or Event of Default;

(b) Litigation. Prompt written notice of the filing or commencement of, or receipt of any written notice of intention of any Person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against the Parent or any of its Subsidiaries, or any material development in any such action, suit, proceeding, that, in either case, could reasonably be expected to result in a liability of the Parent or any of its Subsidiaries in an aggregate amount exceeding $10,000,000;

(c) ERISA Events. Prompt written notice of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Parent or any of its Subsidiaries in an aggregate amount exceeding $10,000,000;

 

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(d) Environmental Notices. Promptly upon receipt thereof, a copy of any form of written notice, summons, material correspondence or citation received from any Governmental Authority or any other Person, (i) concerning material violations or alleged violations of Environmental Laws, which seeks or threatens to impose liability on the Parent or its Subsidiaries therefor, (ii) alleging liability for any material action or omission on the part of the Borrower or any of its Subsidiaries in connection with any Release of Hazardous Material, (iii) providing any written notice of potential responsibility or liability under any Environmental Law, or (iv) concerning the filing of a Lien other than a Permitted Lien upon, against or in connection with the Parent or any of its Subsidiaries, or any of their leased or owned material property, wherever located, in each of cases (i) through (iv) that, individually or in the aggregate, could reasonably be expected to result in a liability of the Parent or any of its Subsidiaries in an aggregate amount exceeding $10,000,000;

(e) Information Regarding Loan Parties. Written notice of any change since the Effective Date in the legal name, corporate structure, jurisdiction of organization or formation or organizational identification number of any Loan Party within thirty (30) days after the occurrence thereof;

(f) Material Changes. Prompt written notice of any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;

(g) Mandatory Prepayment Events. Prompt written notice of the occurrence of (i) any Asset Disposition or Event of Loss with respect to which the Borrower is required to make a mandatory prepayment pursuant to Section 2.08(c)(v), (ii) any incurrence or issuance of any Debt with respect to which the Borrower is required to make a mandatory prepayment pursuant to Section 2.08(c)(vi), and (iii) any Equity Issuance by the Parent with respect to which the Borrower is required to make a mandatory prepayment pursuant to Section 2.08(c)(vii); and

(h) SEC Correspondence. Within five (5) Business Days after receipt thereof, copy of any written notice or other written correspondence received by the Parent or any Subsidiary from the SEC informing the Parent or any Subsidiary that the SEC has issued a formal order of an investigation concerning the financial reporting of the Parent or any Subsidiary thereof.

Each notice pursuant to this Section shall be accompanied, where applicable, by a statement of a Responsible Officer of the Parent setting forth details of the occurrence referred to therein and stating what action the Parent has taken or proposes to take with respect thereto. Each notice pursuant to Section 5.07(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. Documents required to be delivered pursuant to this Section 5.07 shall be posted by the Administrative Agent on IntraLinks/IntraAgency or another relevant website to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) and the Administrative Agent shall promptly notify each Lender of such posting.

Section 5.08 Books and Records; Inspection. (a) Keep proper records and books of account in which full, true and correct entries will be made in accordance with GAAP (giving effect to materiality concepts embodied therein) and all material Legal Requirements, reflecting

 

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all material financial transactions and matters involving the assets and business of the Parent and its Subsidiaries, (b) maintain such books, records and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Parent and its Subsidiaries, as the case may be, and (c) permit representatives and independent contractors of the Collateral Agent, the Administrative Agent and each Lender to (i) visit and inspect any of its properties, (ii) to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom and (iii) to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the applicable Loan Party or Subsidiary; provided that the Loan Parties shall be responsible for such expenses not more than one (1) time per year unless an Event of Default has occurred and is continuing, in which case the Loan Parties shall be responsible for all such expenses.

Section 5.09 Agreement to Grant Acceptable Security Interest.

(a) Cause each Loan Party to grant to the Collateral Agent an Acceptable Security Interest in any property of such Person now owned or hereafter acquired, other than the Excluded Property.

(b) Without limiting the generality of Section 5.09(a), upon the acquisition by any Loan Party after the Effective Date of (i) any fee interest in any real property or (ii) any other material property, in each case other than any Excluded Property and other than any such property in which the Collateral Agent shall already have an Acceptable Security Interest, the Parent shall, all at the expense of the Parent, within thirty (30) days (or such longer period as may be agreed to by the Administrative Agent) after such acquisition:

(i) furnish to the Collateral Agent a reasonably detailed description of the property so acquired and

(ii) cause the applicable Loan Party to execute and deliver to the Collateral Agent one or more Security Documents (including, in the case of any such fee interest in real property, a Mortgage), to file financing statements under the applicable UCC and to take all such further action as may reasonably be requested by the Collateral Agent in order to create an Acceptable Security Interest in such property.

(c) Cause each Loan Party to provide to the Collateral Agent such information with respect to motor vehicles and other assets of the Loan Parties subject to certificates of title as the Collateral Agent may reasonably request from time to time and, in the event that the book value, determined as of the end of the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.06(a) or 5.06(b), of any such motor vehicle or other asset is greater than $150,000, then the Loan Parties shall, at the request of the Collateral Agent, within thirty (30) days (or such longer period as may be agreed to by the Administrative Agent) thereof, grant to the Collateral Agent an Acceptable Security Interest in such motor vehicle or other asset;

 

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(d) Notwithstanding anything to the contrary set forth herein or in any other Loan Document, the Collateral Agent may grant extensions of time for the creation of an Acceptable Security Interest in particular property (including extensions beyond the Closing Date and the Restatement Effective Date for the creation of an Acceptable Security Interest in the property of the Loan Parties on such date) where it determines that such creation cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or any other Loan Document.

(e) Notwithstanding anything to the contrary set forth herein or in any other Loan Document, (i) no Loan Party shall be required to obtain any consents or approvals to the assignment to the Collateral Agent of any license, contract or other agreement under which such Loan Party has any rights, (ii) no Loan Party shall be required to obtain any landlord lien waiver or subordination agreement, any bailee waiver or any similar agreement and (iii) no Loan Party shall be required to perfect the Liens created under the Loan Documents by any means other than (A) filings pursuant to the UCC of the applicable jurisdiction, (B) filings with the United States Patent and Trademark Office and United States Copyright Office, provided that, with respect to licenses, such filings shall be limited to exclusive copyright licenses under which such Loan Party is a licensee, (C) in the case of Collateral that constitutes instruments, delivery thereof to the Collateral Agent in accordance with the terms of the Security Documents, (D) in the case of Collateral that constitutes deposit accounts or securities accounts, entry into Account Control Agreements as required hereunder, (E) in the case of fee interest in any real property, entry into Mortgages as required hereunder, (F) in the case of Collateral that constitutes aircraft or motor vehicles that are not Excluded Property, filings with the appropriate Governmental Authorities or placing the interest of the Collateral Agent as lienholder on the certificate of title, and (G) in the case of any other Collateral, such other perfection means as are expressly set forth herein or in any other Loan Document with respect to such Collateral.

Section 5.10 Additional Guarantors.

(a) Within thirty (30) days (or such longer period as may be agreed to by the Administrative Agent) after the Parent forms or acquires any Domestic Subsidiary (other than a CFC) that is a Material Subsidiary, or after any Domestic Subsidiary of the Parent (other than a CFC) becomes a Material Subsidiary, provide written notice to the Administrative Agent thereof and cause such Subsidiary to (i) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of this Agreement or such other document as the Administrative Agent shall reasonably deem appropriate for such purpose, (ii) deliver to the Administrative Agent documents of the types referred to in Sections 3.02(a)(ix), (x) and (xi) of the Original Credit Agreement and a favorable opinion of counsel to such Subsidiary (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a) above), all in form and substance reasonably satisfactory to the Administrative Agent, (iii) execute and deliver to the Collateral Agent a supplement, in the form specified therein, to each of the Security Agreement and the Pledge Agreement and (iv) otherwise comply with its agreements set forth in Section 5.09.

(b) Without limiting its obligations under Section 5.10(a), the Parent may cause any Domestic Subsidiary (whether or not such Subsidiary is a Material Subsidiary) to become a Loan Party for all purposes hereof by causing such Subsidiary to take the actions specified in clauses (i) through (iv) of Section 5.10(a).

 

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Section 5.11 Hedging Arrangements. In the case of the Borrower, within ninety (90) days after the Closing Date enter into, and thereafter for a period of not less than three (3) years maintain in effect, one or more Hedging Arrangements the effect of which shall be to fix or otherwise limit the interest cost to the Borrower with respect to at least 50% of the aggregate outstanding principal amount of the Term Loans made on the Closing Date.

Section 5.12 Further Assurances in General. Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing or continuation statements or amendments thereto (or similar documents required by any laws of any applicable jurisdiction)), which may be required under any Legal Requirement or otherwise and the execution or taking of which the Administrative Agent or the Collateral Agent may reasonably request, all at the expense of the Parent. The Parent also agrees to provide to the Collateral Agent, from time to time upon request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, statements and schedules further identifying, updating and describing the Collateral and other information, reports and evidence concerning the Collateral.

Section 5.13 Post-Closing Obligations. Deliver to the Administrative Agent within 45 days (as such period may be extended from time to time by the Administrative Agent upon request of the Borrower, such extension not to be unreasonably withheld or delayed) of the Restatement Effective Date each of the following in form and substance reasonably satisfactory to the Administrative Agent:

(a) to the extent requested by the Administrative Agent, amendments to each of the Mortgages filed in the State of Texas to reflect the Amendment and Restatement Agreement and the transactions contemplated hereby and to affirm that each such Mortgage secures the Obligations (the “Mortgage Amendments”);

(b) to the extent requested by the Administrative Agent, modification endorsements issued by Fidelity National Title Insurance Company which reflect that each title policy delivered on the Closing Date with respect to each Mortgage filed in the State of Texas continues to insure the Lien created by the Mortgages entered into on the Closing Date as of the original filing of such Mortgages notwithstanding the recording of the Mortgage Amendments;

(c) a legal opinion by Texas and Oklahoma counsel which in all instances opines that the Lien created by each Mortgage recorded in such State remains effective as of the date of the Mortgage being filed in the real property records of the county in which the real property secured by such Mortgage is located and secures the Obligations, notwithstanding the filing of any Mortgage Amendment or the execution and delivery of the Amendment and Restatement Agreement;

(d) Lien searches on each parcel of real property secured by a Mortgage; and

 

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(e) any other document, instrument, endorsement or agreement that the Administrative Agent may reasonably request to ensure the continued effectiveness of the Lien of the Administrative Agent in the Collateral constituting real property or a fixture.

ARTICLE VI

NEGATIVE COVENANTS

From and after the Closing Date, so long as the Loans or any amounts under any Loan Document shall remain unpaid, any Lender shall have any Commitment, or there shall exist any Letter of Credit Exposure, no Loan Party shall, and shall cause each of its Subsidiaries not to:

Section 6.01 Liens. Create, assume, incur or suffer to exist any Lien on or in respect of any of its property, whether now owned or hereafter acquired, other than the following (“Permitted Liens”):

(a) Liens created pursuant to any Loan Document;

(b) Excepted Liens;

(c) Liens described in Schedule 6.01; provided that such Liens shall secure only those obligations which they secure on Closing Date or the Restatement Effective Date, as applicable, and refinancings, extensions, renewals and replacements thereof not prohibited hereunder;

(d) Liens securing Debt permitted under Section 6.02(f) and obligations relating thereto not constituting Debt; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Debt and the proceeds thereof, and (ii) the Debt secured thereby does not exceed the lesser of the cost or fair market value of the property being acquired or financed on the date of acquisition or financing;

(e) Liens securing Debt permitted under Section 6.02(j) and obligations relating thereto not constituting Debt; provided that such Liens do not extend to any assets of the Parent or any of its Subsidiaries other than the Governmental Fueling Facilities;

(f) Liens on fixed or capital assets acquired, constructed or improved by the Parent or any Subsidiary; provided that (i) such Liens secure only Debt permitted by Section 6.02(l) and obligations relating thereto not constituting Debt and (ii) such Liens shall not apply to any other asset of the Parent or any Subsidiary; provided further that in the event purchase money obligations are owed to any Person with respect to financing of more than one purchase of any fixed or capital assets, such Liens may secure all such purchase money obligations and may apply to all such fixed or capital assets financed by such Person;

(g) Liens securing Debt permitted under Section 6.02(k) or other obligations relating to the payment of insurance premiums; provided that such Liens do not extend to any assets of the Parent or any of its Subsidiaries other than assets of the type customarily subject to such Liens (including rights under the applicable insurance policies);

 

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(h) any Lien existing on any asset prior to the acquisition thereof by the Parent or any Subsidiary or existing on any asset of any Person that becomes a Subsidiary after the Closing Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other asset of the Parent or any Subsidiary, and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and any refinancings, extensions, renewals and replacements thereof that are not prohibited hereunder;

(i) in connection with the sale or transfer of all the Equity Interests in any Subsidiary (other than the Borrower) in a transaction permitted under Section 6.03 or 6.04, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;

(j) in the case of any Subsidiary that is not a Wholly-Owned Subsidiary, any put and call arrangements related to its Equity Interests set forth in its Organizational Documents or any related joint venture or similar agreement;

(k) Liens solely on any cash earnest money deposits made by the Parent or any Subsidiary in connection with any letter of intent or purchase agreement in respect of any transaction permitted under Section 6.05;

(l) Liens securing obligations in respect of any performance bonds, surety bonds or similar instruments incurred in the ordinary course of business of the Parent and its Subsidiaries; provided that such Liens do not extend to assets of the Parent or any of its Subsidiaries other than assets of the type customarily subject to such Liens;

(m) Liens securing Debt permitted by Section 6.02(g) and obligations relating thereto not constituting Debt; provided that such Liens do not extend to any assets of the Parent or any of its Subsidiaries other than the assets that relate to the applicable Sale and Leaseback Transaction; and

(n) Liens not otherwise permitted hereunder; provided that the aggregate principal amount of the obligations secured by such Liens does not exceed $1,000,000 at any time outstanding.

Section 6.02 Debts. Create, assume or suffer to exist, or in any manner become or be liable in respect of, any Debt, except:

(a) Debt under the Loan Documents;

(b) Debt described in, or incurred under commitments described in, Schedule 6.02, and any Debt refinancing, extending, renewing or replacing any such Debt to the extent (i) the principal amount of such refinancing, extending, renewing or replacing Debt does not exceed the principal amount of such Debt being refinanced, extended, renewed or replaced, (ii) neither the final scheduled maturity nor the weighted average life to maturity of such refinancing, extending, renewing or replacing Debt is shorter than the final scheduled maturity or the remaining weighted average life to maturity of such Debt being refinanced, extended, renewed or replaced

 

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and (iii) if such Debt being refinanced, extended, renewed or replaced is subordinated to the obligations of a Loan Party hereunder, such refinancing, extending, renewing or replacing Debt is subordinated to the obligations of such Loan Party hereunder on terms no less favorable to the Lenders in any material respect;

(c) unsecured Debt of any Loan Party owing to any other Loan Party;

(d) unsecured Debt of the Parent or any Subsidiary owing to the Parent or any other Subsidiary; provided that (i) any such Debt of any Loan Party owing to any Subsidiary that is not a Loan Party is subordinated to the obligations of such Loan Party hereunder on terms in form and substance reasonably acceptable to the Administrative Agent, (ii) any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is permitted under Section 6.05 and (iii) if any such Debt of any Subsidiary that is not a Loan Party owing to a Loan Party is evidenced by a promissory note, such promissory note shall be pledged to the Collateral Agent for the benefit of the Secured Parties;

(e) Guarantees of the Parent or any Subsidiary in respect of Debt of the Parent or any Wholly-Owned Subsidiary permitted hereunder;

(f) Capital Leases incurred to make Capital Expenditures permitted pursuant to Section 6.15;

(g) Capital Leases incurred in connection with any Sale and Leaseback Transaction permitted by Section 6.13(a)(ii);

(h) the 6.5% Convertible Senior Notes and any Debt refinancing, extending, renewing or replacing any 6.5% Convertible Senior Notes to the extent (i) the principal amount of such Debt does not exceed the principal amount of the 6.5% Convertible Senior Notes being refinanced, extended, renewed or replaced, (ii) such Debt is unsecured, and (iii) neither the final scheduled maturity nor the weighted average life to maturity of such Debt is shorter than ninety one (91) days after the Term Maturity Date or the remaining weighted average life to maturity of the Term Loans, respectively (it being understood and agreed that, for purposes of this clause (h), any such Debt shall, if otherwise meeting the requirements set forth above, be permitted to be created and be in existence, notwithstanding that the proceeds of such Debt shall not be applied to make such refinancing, extension, renewal or replacement of any 6.5% Convertible Senior Notes immediately upon the creation thereof, if (A) the proceeds of such Debt are applied to make such refinancing, extension, renewal or replacement no later than 60 days following the date of the creation thereof and (B) at all times pending such application all the proceeds of such Debt are held in an account of the Borrower with the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement);

(i) Debt in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; provided that the aggregate principal amount of any such Debt that is secured may not exceed $1,000,000 at any time outstanding;

(j) Debt incurred in connection with the construction or development of any Governmental Fueling Facility; provided, however, that (i) the aggregate outstanding principal amount of such Debt does not exceed $20,000,000 at any time during the construction phase of

 

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such Governmental Fueling Facility and (ii) upon completion of construction of, and commencement of revenues resulting from, a Governmental Fueling Facility, neither the Parent nor any of its Subsidiaries shall have any liability whatsoever, whether direct or indirect, contingent or otherwise, for such Debt, except to the extent such liability is limited to recourse to such Governmental Fueling Facility;

(k) Debt consisting of the financing of insurance premiums; provided that the final scheduled maturity of such Debt shall not exceed one (1) year after the date of incurrence thereof;

(l) Debt incurred solely for the purpose of financing the acquisition, construction or improvement of any fixed or capital assets, including Capital Leases and any Debt assumed in connection with the acquisition of any such assets; provided that (i) the principal amount of such Debt does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (ii) the aggregate principal amount of Debt permitted under this clause (l) shall not exceed $10,000,000 at any time outstanding;

(m) Debt of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Closing Date, or Debt of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a transaction permitted under Section 6.05; provided that (i) such Debt exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) the aggregate principal amount of Debt permitted by this clause (m) shall not exceed $10,000,000 at any time outstanding; and

(n) Debt owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds; provided that such Debt shall be repaid in full within five (5) Business Days of the incurrence thereof.

Section 6.03 Merger or Consolidation. Merge consolidate with or into another Person, or dissolve or liquidate, except that, so long as no Default or Event of Default exists or would result therefrom:

(a) (i) any Subsidiary (other than the Borrower) may merge with the Parent or the Borrower, provided that the Parent or the Borrower shall be the continuing or surviving Person, (ii) any Person (other than the Parent or the Borrower) may merge or consolidate with any Subsidiary (other than the Borrower), provided that the continuing or surviving Person is a Subsidiary and, if any party to such merger or consolidation is a Guarantor, is a Guarantor and (iii) any Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted by Section 6.04 in which the continuing or surviving Person is not a Subsidiary; and

 

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(b) the Parent may dissolve or liquidate any Subsidiary (other than a Material Subsidiary); provided that any Asset Disposition of the assets of such dissolved or liquidated Subsidiary is permitted by Section 6.04.

Section 6.04 Asset Dispositions. Make any Asset Disposition, except:

(a) Asset Dispositions of equipment or real property to the extent that (i) such Asset Disposition is in the ordinary course of business and (ii) (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Asset Disposition are reasonably promptly applied to the purchase price of other equipment or real property;

(b) Asset Dispositions by the Parent to any Subsidiary or by any Subsidiary to the Parent or to another Subsidiary; provided that, if the transferor in such Asset Disposition is a Loan Party, the transferee must be a Loan Party or such Asset Disposition must comply with Sections 6.05 and 6.08, as applicable;

(c) Asset Dispositions not otherwise permitted under this Section 6.04; provided that (i) at the time of each such Asset Disposition, no Default or Event of Default shall exist or would result from such Asset Disposition, (ii) in the case of any such Asset Disposition, the sum of the highest of (A) the net book value, (B) the market value (if available to the Parent without undue burden or expense) and (C) the purchase price (less any retained Debt) of all the property to be disposed of in such Asset Disposition, or disposed of in any other Asset Disposition made in reliance on this clause (c) in the same fiscal year as such Asset Disposition (in each case measured as of the date of the applicable Asset Disposition), shall not exceed 5% of the Tangible Net Worth as of the end of the fiscal quarter most recently ended prior to the date of such Asset Disposition and (iii) to the extent required pursuant to Section 2.08(c)(v), the Net Proceeds of such Asset Disposition are applied in accordance with such Section;

(d) Investments permitted by Section 6.05 and Restricted Payments permitted by Section 6.06;

(e) grants of licenses, sublicenses, leases and subleases in the ordinary course of business that do not interfere in any material respect with the business of the Parent or any Subsidiary;

(f) sales or discounts of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business or of assets received upon enforcement of any claim against on obligor on an account receivable;

(g) sales of (i) real property (including fixtures and other interests relating thereto and including the sale of the 17th Street Facility) in an aggregate amount not to exceed $40,000,000 and (ii) equipment in an aggregate amount not to exceed $15,000,000, provided that, in each case, the Net Proceeds of each such Asset Disposition are applied in accordance with Section 2.08(c)(v); provided that if any Asset Disposition described in this subsection (g) shall be for consideration of $10,000,000 or more, the Agent shall have received a certificate of a Financial Officer of the Parent to the effect that such Asset Disposition was approved by the Board of Directors of the Parent;

 

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(h) Asset Dispositions by the Parent or any Subsidiary made, directly or indirectly through any Subsidiary, in connection with any Project Specific Co-Development Arrangement; provided that (i) any such Asset Disposition is made solely to obtain the project that is the subject of such Project Specific Co-Development Arrangement or for working capital purposes of such Project Specific Co-Development Arrangement or otherwise to provide equipment or other assets required for the performance of obligations in respect of such Project Specific Co-Development Arrangement and (ii) any such Asset Disposition is made solely during the effectiveness of such Project Specific Co-Development Arrangement (including any warranty period in respect thereof); and

(i) sales of any of the assets identified on page 42 as Schedule 1: POTENTIAL BUSINESS DIVESTITURES to the Lender Presentation dated as of February, 2011; provided that if any Asset Disposition described in this subsection (i) shall be for consideration of $10,000,000 or more, the Agent shall have received a certificate of a Financial Officer of the Parent to the effect that such Asset Disposition was approved by the Board of Directors of the Parent.

Section 6.05 Investments and Acquisitions. Make any Investments or Acquisitions except:

(a) Investments in the form of Cash Equivalents;

(b) Investments of the Parent and its Subsidiaries in Subsidiaries in existence on the Restatement Effective Date and other Investments in existence on the Restatement Effective Date and set forth on Schedule 6.05;

(c) advances to officers, directors and employees of the Parent and its Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(d) Investments of a Loan Party in or to another Loan Party;

(e) Investments by the Parent or any Subsidiary in or to the Parent or any other Subsidiary; provided that the aggregate principal amount of Investments made under this clause (e) by the Loan Parties in or to Subsidiaries that are not Loan Parties shall not exceed $35,000,000 at any time outstanding;

(f) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction of accounts receivable or notes receivable that are due by financially troubled account debtors or that are subject to a dispute with the applicable account debtors, in each case to the extent reasonably necessary in order to prevent or limit loss;

(g) Guarantees permitted by Section 6.02 and Guarantees of the Parent or any Subsidiary in respect of obligations (other than obligations constituting Debt) of the Parent or any of its Subsidiaries;

 

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(h) Investments under Hedging Arrangements permitted under Section 6.11;

(i) Acquisitions so long as:

(i) both before and after giving effect to each such Acquisition, no Default or Event of Default exists or would result therefrom;

(ii) as soon as available, but not less than five (5) Business Days prior to the consummation of each such Acquisition, the Parent has provided to the Administrative Agent copies of substantially definitive documentation with respect to such Acquisition;

(iii) the cash consideration (other than Permitted Consideration Payments) paid in connection with all such Acquisitions does not exceed $25,000,000 in the aggregate since the Closing Date; provided that the requirement in this clause (iii) shall not apply with respect to any Acquisition if Liquidity immediately before and immediately after giving effect to any such Acquisition is greater than $150,000,000;

(iv) each such Acquisition shall have been approved by the board of directors, or other equivalent governing body, of the Person acquired or the assets of which have been acquired pursuant thereto;

(v) no Loan Party shall, as a result of or in connection with any such Acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, tax, litigation, or other matters) that could reasonably be expected, as of the date of such Acquisition, to result in the existence or occurrence of a Material Adverse Effect; and

(vi) with respect to each Acquisition, the Parent shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Parent to the effect that, after giving effect to such Acquisition, the Parent would be in compliance with Sections 6.16, and 6.17 on a pro forma basis (attaching a reasonably detailed calculation in support thereof);

(j) Investments by the Parent or any Subsidiary that result solely from the receipt by the Parent or such Subsidiary from any of its Subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Debt or other securities;

(k) Investments by the Parent or any Subsidiary made, directly or indirectly through any Subsidiary, in connection with any Project Specific Co-Development Arrangement; provided that (i) any such Investment is made solely to obtain the project that is the subject of such Project Specific Co-Development Arrangement or for working capital purposes of such Project Specific Co-Development Arrangement or otherwise to provide equipment or other assets required for the performance of obligations in respect of such Project Specific Co-Development Arrangement (and, in the case of any Investment in the form of a loan, such loan is not made as part of a revolving working capital credit facility) and (ii) any such Investment is made solely during the effectiveness of such Project Specific Co-Development Arrangement (including any warranty period in respect thereof); and

 

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(l) other Investments and other Acquisitions, provided that (i) the aggregate outstanding amount of Investments made in reliance on this clause (m), together with, without duplication, the aggregate amount of consideration paid in connection with all other Acquisitions made in reliance on this clause (l), in each case in any fiscal year shall not exceed $15,000,000 (excluding, for purposes of this clause (i), any such Investment or Acquisition if Liquidity is equal to or greater than $150,000,000 immediately before and immediately after giving effect to such Investment or Acquisition) and (ii) the aggregate amount of Investments made in reliance on this clause (l) outstanding at any time, together, without duplication, with the aggregate amount of consideration paid in connection with all other Acquisitions made in reliance on this clause (l), shall not exceed $100,000,000 at any time outstanding.

Notwithstanding the foregoing, any Investment or Acquisition permitted under Section 6.05(i) or (l) (other than Investments by the Parent or any Subsidiary in or to the Parent or any other Subsidiary) may only be made if (i) Liquidity is equal to or greater than $50,000,000 immediately before and immediately after giving effect to such Investment or Acquisition and (ii) other than in the case of any Investment or Acquisition the consideration for which consists only of Equity Interests of the Parent and the Permitted Consideration Payments, the Total Leverage Ratio, after giving pro forma effect to such Investment or Acquisition, is less than (A) the maximum Total Leverage Ratio then permitted by Section 6.17 minus (B) 0.50.

Section 6.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:

(a) each Subsidiary of the Parent may declare and make Restricted Payments to the Parent, any of its Subsidiaries and, not in excess of its ratable share thereof, any other holder of any Equity Interests of such Subsidiary;

(b) so long as no Default or Event of Default exists or would result therefrom, the Parent may declare and make dividend payments or other distributions payable to the holders of its Equity Interests solely in the common stock or other common Equity Interests of the Parent;

(c) so long as no Default or Event of Default exists or would result therefrom, the Parent may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;

(d)(i) the Parent and its Subsidiaries may declare and make Restricted Payments, not exceeding $2,500,000 in the aggregate for any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Parent and its Subsidiaries; (ii) the Parent may repurchase Equity Interests upon the “cashless exercise” of stock options or warrants or upon the vesting of restricted stock units or performance units, if such Equity Interests represent the exercise price of such options or warrants or represent withholding Taxes due upon such exercise or vesting, and (iii) the Parent may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Parent in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Parent;

 

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(e) declare and make a distribution of preferred or common share purchase rights, and redeem or exchange outstanding preferred or common share purchase rights pursuant to any rights agreements approved by the board of directors of the Parent; provided that the consideration for any such redemption or exchange does not exceed in the aggregate $700,000; and

(f) the Parent may declare and make dividend payments or other distributions payable to the holders of its Equity Interests that are directors, officers or employees of the Parent or its Subsidiaries solely in the common stock or other Equity Interests of the Parent pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Parent and its Subsidiaries.

Section 6.07 Change in Nature of Business. In the case of any Subsidiary of the Parent, engage in any line of business substantially different from those lines of business conducted by the Parent and its Subsidiaries on the Restatement Effective Date or any business substantially related or incidental thereto. In the case of the Parent, engage in any business or activity other than (a) the ownership of Equity Interests in the Borrower and its other Subsidiaries, cash and Cash Equivalents and intellectual property rights, (b) maintaining its corporate existence, (c) participating in tax, accounting, pension and other administrative activities as the parent of the consolidated group of companies, (d) the execution and delivery of the Loan Documents to which it is a party and the performance of its obligations thereunder, (e) incurring Debt and Guarantees permitted to be incurred by it under Section 6.02 and other liabilities (including liabilities imposed by Legal Requirements) not prohibited to be incurred by it hereunder, (f) making Restricted Payments, Investments and Acquisitions to the extent permitted by this Agreement, (g) providing indemnification to officers, directors and employees in the ordinary course of business, (h) performing such other obligations, and engaging in such other business or activity, as are required by Legal Requirements or as are reasonably related to the business and activities of its Subsidiaries and (i) activities incidental to the businesses or activities described in clauses (a) through (h) of this Section.

Section 6.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Parent, whether or not in the ordinary course of business, including, without limitation, any payment by the Parent or any of its Wholly-Owned Subsidiaries of any management, consulting or similar fees to any such Affiliate, whether pursuant to a management agreement or otherwise, other than on terms substantially as favorable or more favorable to the Parent or such Subsidiary as would be obtainable by the Parent or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, other than transactions (a) between or among the Loan Parties, (b) between or among Subsidiaries that are not Loan Parties, (c) between or among the Parent and its Subsidiaries, provided that such transactions are intercompany transactions entered into in the ordinary course of business as part of tax, accounting, pension and other administrative activities, (d) otherwise permitted by this Agreement and (e) pursuant to arrangements existing on the Restatement Effective Date and set forth on Schedule 6.08.

Section 6.09 Agreements Restricting Liens and Distributions. Create or otherwise cause or suffer to exist any prohibition, encumbrance or restriction which prohibits or otherwise restricts the ability of (a) any Subsidiary to make Restricted Payments to any Loan Party, (b) any

 

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Domestic Subsidiary to Guarantee the Debt of any Loan Party or (c) the Parent or any other Loan Party to create, incur, assume or suffer to exist Liens on property of such Person (other than any Excluded Property) to secure the Obligations; provided, however, that (i) the foregoing shall not apply to (A) prohibitions, encumbrances or restrictions imposed by Legal Requirements or by any Loan Document, (B) prohibitions, encumbrances or restrictions imposed by the agreements or documents governing or evidencing the 6.5% Convertible Senior Notes or any agreement or document governing or evidencing any other Debt permitted by Section 6.02(h), and (C) in the case of any Subsidiary that is not a Wholly-Owned Subsidiary of the Parent, prohibitions, encumbrances or restrictions imposed by its Organizational Documents or any related joint venture or similar agreement, provided that such prohibitions, encumbrances or restrictions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, (ii) clauses (a) and (b) of the foregoing shall not apply to (A) customary prohibitions, encumbrances and restrictions contained in agreements relating to the disposition of a Subsidiary, or a business unit, division, product line or line of business, that are applicable solely pending such sale, provided that such prohibitions, encumbrances or restrictions apply only to the Subsidiary, or the business unit, division, product line or line of business, that is to be sold and such disposition is permitted by Section 6.04, (B) prohibitions, encumbrances and restrictions imposed by agreements relating to Debt or other obligations of any Subsidiary in existence at the time such Subsidiary became a Subsidiary and otherwise permitted by Section 6.02(m), provided that such restrictions and conditions apply only to such Subsidiary, or (C) prohibitions, encumbrances and restrictions imposed by agreements relating to Debt of Foreign Subsidiaries permitted under Section 6.02, provided that such restrictions and conditions apply only to Foreign Subsidiaries, and (iii) clause (c) of the foregoing shall not apply to (A) prohibitions, encumbrances or restrictions imposed by any agreement relating to secured Debt permitted by Section 6.01(d), 6.01(e), 6.01(f), 6.01(g), 6.01(h), 6.01(l) or 6.01(m), provided that such prohibitions, encumbrances or restrictions apply only to the assets securing such Debt, or (B) customary provisions in licenses, leases and other agreements restricting the assignment thereof or encumbrance of any rights or interests thereunder.

Section 6.10 Limitation on Accounting Changes or Changes in Fiscal Periods. Permit (a) any change in any of its accounting policies affecting the presentation of financial statements or reporting practices, except as required or permitted by GAAP, or (b) the fiscal year of the Parent or any of its Subsidiaries to end on a day other than December 31 or change the Parent’s method of determining fiscal quarters.

Section 6.11 Limitation on Speculative Hedging. (a) Purchase, assume, or hold a speculative position in any commodities market or futures market or enter into any Hedging Arrangement for speculative purposes or taking a “market view” or (b) be party to or otherwise enter into any Hedging Arrangement that is entered into for reasons other than as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to the Parent’s or its Subsidiaries’ operations.

Section 6.12 Use of Proceeds. Use the proceeds of the Term Loans, Revolving Advances and Letters of Credit for purposes other than as specified in Section 4.25. Use any part of the proceeds of Loans or Letters of Credit for any purpose which violates, or is inconsistent with, Regulations T, U, or X.

 

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Section 6.13 Sale and Leaseback Transactions and Synthetic Leases. Enter into or suffer to exist (a) any Sale and Leaseback Transaction, other than (i) any Sale and Leaseback Transaction entered into by any Person prior to the time such Person becomes a Subsidiary, provided that such Sale and Leaseback Transaction was not entered in contemplation of or in connection with such Person becoming a Subsidiary, and (ii) any Sale and Leaseback Transaction to the extent the sale, transfer or other disposition of the property thereunder is permitted under Section 6.04, or (b) any Synthetic Lease.

Section 6.14 6.5% Convertible Senior Notes.

(a) Make any optional, mandatory or scheduled payments on account of principal or interest (whether such payment is in form of redemption, purchase, retirement, defeasance, set-off or otherwise) in respect of the 6.5% Convertible Senior Notes or any other Debt permitted by Section 6.02(h), other than (i) scheduled or other mandatory principal payments (including repurchases upon exercise by any holder thereof of its right to require the Parent to repurchase any Senior Convertible Notes or any such other Debt), (ii) scheduled or other mandatory interest or premium payments, (iii) refinancings, extensions, renewals or replacements thereof to the extent permitted under Section 6.02, (iv) payments made solely with Equity Interests in the Parent, (v) cash payments made with respect to fractional shares or as a part of a separately negotiated inducement to the holders of 6.5% Convertible Senior Notes in connection with any conversion thereof in accordance with the terms of the indenture related thereto, and (vi) optional prepayments or redemptions of the 6.5% Convertible Senior Notes after the Restatement Effective Date, so long as no Event of Default shall have occurred and be continuing before and after giving effect to such prepayment or redemption, and such optional prepayment or redemption does not exceed 101% of the face value of the outstanding 6.5% Convertible Senior Notes so prepaid or redeemed.

(b) Permit any supplement, amendment or other modification after the Restatement Effective Date of any indenture, instrument or agreement pursuant to which any 6.5% Convertible Senior Notes if such waiver, supplement, modification or amendment would (i) increase the maximum principal amount of such 6.5% Convertible Senior Notes or the ordinary interest rate or the default interest rate on such 6.5% Convertible Senior Notes, (ii) accelerate the dates upon which payments of principal or interest are due on any 6.5% Convertible Senior Notes, (iii) change any event of default or add any covenant with respect to the 6.5% Convertible Senior Notes, (iv) change the payment, redemption or prepayment provisions of the 6.5% Convertible Senior Notes or (v) change or amend any other term in a manner that materially increases the obligations of the obligors thereunder or confers additional material rights on the holder of such 6.5% Convertible Senior Notes and that, in each case, is materially adverse to the interests of the Lenders.

Section 6.15 Maximum Capital Expenditures. Permit Capital Expenditures for any fiscal year to be greater than the higher of (a) $70,000,000 in the aggregate or (b) 25% of Consolidated EBITDA.

Section 6.16 Minimum Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the last day of any fiscal quarter, commencing with the fiscal quarter ending September 30, 2012, to be less than the ratio set forth below with respect to such fiscal quarter:

 

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Fiscal Quarter

   Minimum Interest Coverage Ratio

Fiscal quarter ending September 30, 2012

   2.25 to 1.00

Fiscal quarters ending December 31, 2012, March 31, 2013, June 30, 2013 and September 30, 2013

   2.75 to 1.00

Fiscal quarters ending December 31, 2013 and thereafter

   3.00 to 1.00

Section 6.17 Maximum Total Leverage Ratio. Permit the Total Leverage Ratio as of the last day of any fiscal quarter, commencing with the fiscal quarter ending September 30, 2012, to exceed the ratio set forth below with respect to such fiscal quarter:

 

Fiscal Quarter

   Maximum Total Leverage Ratio

Fiscal quarter ending September 30, 2012

   5.50 to 1.00

Fiscal quarter ending December 31, 2012

   4.00 to 1.00

Fiscal quarter ending March 31, 2013

   3.25 to 1.00

Fiscal quarter ending June 30, 2013

   3.00 to 1.00

Fiscal quarters ending September 30, 2013 and thereafter

   2.75 to 1.00

Section 6.18 Amendment of Organizational Documents. Permit any supplement, amendment or other modification of any Organizational Document of the Borrower or any other Subsidiary in a manner that is materially adverse to the interests of the Lenders.

ARTICLE VII

EVENTS OF DEFAULT

Section 7.01 Events of Default. The occurrence of any of the following events shall constitute an “Event of Default” under any Loan Document:

(a) Payment. The Borrower shall fail to pay (i) any principal of any Loan or reimburse any LC Disbursement when the same becomes due and payable, including, without limitation, any mandatory prepayment required by Section 2.08, or (ii) any interest on the Loans, any fees, reimbursements, indemnifications, or other amounts payable under this Agreement or any other Loan Document within three (3) days after the same becomes due and payable;

 

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(b) Representation and Warranties. Any representation or warranty made or deemed to be made by the Borrower or any other Loan Party (or any of their respective officers) in this Agreement, in any other Loan Document, or in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed to be made; provided that to the extent that any representation or warranty is qualified as to “Material Adverse Effect” or otherwise as to “materiality”, such representation and warranty shall prove to be incorrect in any respect when made or deemed to be made;

(c) Covenant Breaches. Any Loan Party shall (i) fail to perform or observe any covenant contained in Sections 5.01 (with respect to the existence of the Borrower or Parent), 5.04(a), 5.06(a) and (b), 5.07(a), (e), and (g), 5.09(b) and 5.10 and Article VI of this Agreement or (ii) fail to perform or observe any other term or covenant set forth in this Agreement or in any other Loan Document which is not covered by clause (i) above or any other provision of this Section 7.01 if such failure shall remain unremedied for 30 days;

(d) Cross-Default. (i) The Parent or any of its Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt when the same becomes due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), provided that the aggregate principal amount of all such Debt (other than any Debt created hereunder) is at least $15,000,000 (or the equivalent in any other currency), (ii) the Parent or any of its Subsidiaries shall fail to comply with any of its covenants or agreements under any agreement or instrument relating to any of its Debt and such failure enables or permits the holder or holders of such Debt, or any trustee or agent on its or their behalf, without the lapse of any further grace periods (any applicable grace periods having expired), to cause such Debt to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity, provided that the aggregate principal amount of all such Debt (other than any Debt created hereunder) is at least $15,000,000 (or the equivalent in any other currency) and (iii) any Debt of the Parent or any of its Subsidiaries shall be declared to be due and payable prior to the stated maturity thereof, provided that (A) the aggregate principal amount of all such Debt (other than any Debt created hereunder) is at least $15,000,000 (or the equivalent in any other currency) and (B) this clause (iii) shall not apply to (x) secured Debt that becomes due as a result of the voluntary sale or transfer of the assets securing such Debt, or the occurrence of any other event or condition (other than an “event of default”, however denominated) that requires a prepayment, repurchase, redemption or defeasance of any Debt pursuant to the terms of the agreements and instruments relating to such Debt as in effect prior to the occurrence of such event or condition, or (y) any Debt becoming due as a result of a refinancing, extension, renewal or replacement thereof permitted under Section 6.02;

(e) Insolvency. Any Loan Party shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally; commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness which it would not otherwise be able to pay as it falls due or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower or any of its Material Subsidiaries seeking to adjudicate it as a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial

 

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part of its property and, in the case of any such proceeding instituted against such Person, either such proceeding shall remain undismissed for a period of 60 days or any of the actions sought in such proceeding shall occur; or such Person shall take any action to authorize any of the actions set forth above in this paragraph (e) or any analogous procedure or step is taken in any jurisdiction;

(f) Judgments. Any judgment shall be rendered against any Loan Party or any of its Subsidiaries and (A) the amount thereof (to the extent not covered by third-party insurance under which claim has been made in writing and liability therefor has not been denied by the insurer) is in excess of $10,000,000 (or the equivalent in any other currency) and (B) either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment by reason of a pending appeal or otherwise, shall not be in effect;

(g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of a Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000, or (ii) the Parent or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $10,000,000;

(h) Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the obligations of the Loan Parties hereunder, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any Loan Document after execution and delivery thereof; or any Loan Party denies that it has any or further liability or obligation under any Loan Document in violation of the terms thereof, or purports to revoke, terminate or rescind any Loan Document;

(i) Security Documents. At any time after the Closing Date, the Collateral Agent shall fail to have an Acceptable Security Interest in any material Collateral except as a result of (i) a sale, transfer or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or (ii) the Collateral Agent’s failure to maintain possession of any stock certificate, promissory note or other instrument delivered to it under the Security Documents; or

(j) Change in Control. A Change of Control shall occur.

Section 7.02 Optional Acceleration of Maturity. If any Event of Default (other than an Event of Default pursuant to Section 7.01(e)) shall have occurred and be continuing, then, and in any such event:

(a) the Administrative Agent (i) shall at the request, or may, with the consent, of the Majority Revolving Lenders, by notice to the Borrower, declare the Revolving Commitments and the obligation of each Revolving Lender and each Issuing Bank to make extensions of credit hereunder, including making Loans and issuing Letters of Credit, to be terminated, whereupon

 

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the same shall forthwith terminate, and (ii) shall at the request, or may, with the consent, of the Majority Lenders, by notice to the Borrower, declare all principal, interest, fees, reimbursements, indemnifications, and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon all such amounts shall become and be forthwith due and payable in full, without notice of intent to demand, demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of which are hereby expressly waived by the Borrower;

(b) the Borrower shall, on demand of the Administrative Agent at the request or with the consent of the Majority Revolving Lenders, Cash Collateralize the Letters of Credit in accordance with Section 7.07; and

(c) the Administrative Agent shall at the request of, or may with the consent of, the Majority Lenders proceed to enforce its rights and remedies under the Security Documents, this Agreement, and any other Loan Document for the ratable benefit of the Lenders by appropriate proceedings.

Section 7.03 Automatic Acceleration of Maturity. If any Event of Default pursuant to Section 7.01(e) shall occur:

(a) (i) the Commitments and the obligation of each Lender and each Issuing Bank to make extensions of credit hereunder, including making Loans and issuing Letters of Credit, shall terminate, and (ii) all principal, interest, fees, reimbursements, indemnifications, and all other amounts payable under this Agreement and the other Loan Documents shall become and be forthwith due and payable in full, without notice of intent to demand, demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of which are hereby expressly waived by the Borrower;

(b) the Borrower shall Cash Collateralize the Letters of Credit in accordance with Section 7.07; and

(c) the Administrative Agent shall at the request of, or may with the consent of, the Majority Lenders proceed to enforce its rights and remedies under the Security Documents, this Agreement, and any other Loan Document for the ratable benefit of the Lenders by appropriate proceedings.

Section 7.04 Non-exclusivity of Remedies. No remedy conferred upon the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders is intended to be exclusive of any other remedy, and each remedy shall be cumulative of all other remedies existing by contract, at law, in equity, by statute or otherwise.

Section 7.05 Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Legal Requirements, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever

 

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currency) at any time owing by such Lender, such Issuing Bank or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such Issuing Bank and then due and payable, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party are owed to a branch or office of such Lender or such Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness. In the event that any Defaulting Lender shall exercise any right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Bank and their respective Affiliates under this Section 7.05 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have. Each Lender and each Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

Section 7.06 Application of Proceeds. From and during the continuance of any Event of Default, any monies or property actually received by the Administrative Agent or the Collateral Agent pursuant to this Agreement or any other Loan Document, the exercise of any rights or remedies under any Security Document or any other agreement with any Loan Party which secures any of the Obligations, shall be applied in the following order:

(a) First, to payment of the reasonable expenses, liabilities, losses, costs, duties, fees, charges or other moneys whatsoever (together with interest payable thereon) as may have been paid or incurred in, about or incidental to any sale or other realization of Collateral, including reasonable compensation to the Agents and their agents and counsel, and of any other unreimbursed reasonable expenses and indemnities, in each case for which the Administrative Agent, the Collateral Agent or any Secured Party is to be reimbursed pursuant to this Agreement or any other Loan Document and that are then due and payable;

(b) Second, to the ratable payment of accrued but unpaid fees, commitment fees, and fronting fees owing to the Issuing Banks and the Lenders in respect of the Loans and Letters of Credit under this Agreement;

(c) Third, to the ratable payment of accrued but unpaid interest on the Revolving Advances, the Term Loans and any unpaid Reimbursement Obligations and letter of credit fees then due and payable under this Agreement;

(d) Fourth, to the ratable payment of all outstanding principal of the Revolving Advances, the Term Loans, Reimbursement Obligations and according to the unpaid termination amounts thereof, to the payment of all obligations of the Parent or its Subsidiaries owing to any Hedging Counterparty under any Hedging Arrangement, if any, then due and payable;

 

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(e) Fifth, to the ratable payment of all obligations to Cash Collateralize the Letter of Credit Exposure in accordance with Section 7.07;

(f) Sixth, ratably, according to the then unpaid amounts thereof, without preference or priority of any kind among them, to the ratable payment of all other Obligations then due and payable which relate to Revolving Advances, Term Loans and Letters of Credit and which are owing to the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders;

(g) Seventh, to the ratable payment of any other outstanding Obligations then due and payable; and

(h) Eighth, any excess after payment in full of all Obligations shall be paid to the Borrower or any other Loan Party as appropriate or to such other Person who may be lawfully entitled to receive such excess.

Notwithstanding the foregoing, Obligations arising under Hedging Arrangements with Hedge Counterparties shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Hedge Counterparty, as the case may be.

Section 7.07 Letters of Credit. If any Event of Default shall occur and be continuing, on the Business Day on which the Borrower receives notice from the Collateral Agent demanding the deposit of cash collateral pursuant to this Section 7.07, the Borrower agrees to deposit into the LC Cash Collateral Account, an amount in Dollars in cash equal to 105% of the Letter of Credit Exposure; provided that the obligation to deposit such amount will become effective immediately, and such deposit will become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default pursuant to Section 7.01(e). Each such deposit pursuant to this Section 7.07 shall be held by the Collateral Agent as collateral for the payment and performance of the obligations of the Borrower with respect to Letters of Credit under Section 2.03. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Moneys in such account shall be applied by the Collateral Agent to reimburse the applicable Issuing Bank for LC Disbursements made by it with respect to Letters of Credit for which the applicable Issuing Bank has not been reimbursed pursuant to Section 2.03 and, to the extent not so applied, shall be held to satisfy drawings under Letters of Credit as they occur. If the Borrower is required to deposit an amount in the LC Cash Collateral Account as a result of the occurrence of an Event of Default (and the Acceleration Date shall not have occurred), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days of its request; provided that all Events of Default have been cured or waived. If at any time either (x) the amount of cash held in the LC Cash Collateral Account exceeds 105% of the Letter of Credit Exposure or (y) any cash remains on deposit in the LC Cash Collateral Account after all Letters of Credit have either been fully drawn or expired, then such excess or remaining amount shall be (A) if the Acceleration Date shall have occurred or Event of Default shall be continuing, applied to the other Obligations, if any, in the order set forth in Section 7.06 above and (B) otherwise, returned to the Borrower.

 

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ARTICLE VIII

THE GUARANTY

Section 8.01 Liabilities Guaranteed. Each Guarantor hereby, joint and severally, irrevocably and unconditionally guarantees the prompt payment at maturity of the Obligations.

Section 8.02 Nature of Guaranty. This guaranty is an absolute, irrevocable, completed and continuing guaranty of payment and not a guaranty of collection, and no notice of the Obligations or any extension of credit already or hereafter contracted by or extended to the Borrower need be given to any Guarantor. This guaranty may not be revoked by any Guarantor and shall continue to be effective with respect to the Obligations arising or created after any attempted revocation by such Guarantor and shall remain in full force and effect until the Obligations (other than contingent obligations) are paid in full and the Commitments are terminated, notwithstanding that from time to time prior thereto no Obligations may be outstanding. The Borrower and the Lenders may modify, alter, rearrange, extend for any period and/or renew from time to time, the Obligations, and the Lenders may waive any Default or Events of Default without notice to any Guarantor and in such event each Guarantor will remain fully bound hereunder on the Obligations. This guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of the Obligations is rescinded or must otherwise be returned by any of the Lenders upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made. This guaranty may be enforced by the Administrative Agent, the Lenders and any subsequent holder of any of the Obligations and shall not be discharged by the assignment or negotiation of all or part of the Obligations. Each Guarantor hereby expressly waives presentment, demand, notice of non-payment, protest and notice of protest and dishonor, notice of Default or Event of Default, and also notice of acceptance of this guaranty, acceptance on the part of the Lenders being conclusively presumed by the Lenders’ request for this guaranty and the Guarantors’ being party to this Agreement.

Section 8.03 Agent’s Rights. Each Guarantor authorizes the Agents, without notice or demand and without affecting any Guarantor’s liability hereunder, to take and hold security for the payment of its obligations under this Article VIII and/or the Obligations, and exchange, enforce, waive and release any such security; and to apply such security and direct the order or manner of sale thereof as the Agents in their discretion may determine, and to obtain a guaranty of the Obligations from any one or more Persons and at any time or times to enforce, waive, rearrange, modify, limit or release any of such other Persons from their obligations under such guaranties.

Section 8.04 Guarantor’s Waivers.

(a) General. Each Guarantor waives any right to require any of the Lenders to (i) proceed against the Borrower or any other Person liable on the Obligations, (ii) enforce any of their rights against any other guarantor of the Obligations, (iii) proceed or enforce any of their rights against or exhaust any security given to secure the Obligations, (iv) have the Borrower joined with any Guarantor in any suit arising out of this Article VIII and/or the Obligations, or (v) pursue any other remedy in the Lenders’ powers whatsoever. It is agreed between the

 

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