MEANS ANY AGREEMENT BETWEEN BORROWER AND AIR
PRODUCTS AND CHEMICALS, INC. RELATING TO THE PROVISION OF ADMINISTRATIVE AND
OTHER SERVICES FOR THE ORDERLY TRANSITION OF THE ASSETS THE SUBJECT OF THE AIR
PRODUCTS APA DOCUMENTS.
"UNFUNDED PENSION LIABILITY" MEANS, WITH RESPECT TO ANY PLAN OR MULTIEMPLOYER
PLAN OF ANY APPLICABLE PERSON AS OF AN APPLICABLE DATE, THE EXCESS OF ITS
BENEFIT LIABILITIES UNDER ERISA OVER THE CURRENT VALUE OF ITS ASSETS, AS
DETERMINED BY AGENT.
"UNSECURED INDEBTEDNESS" MEANS INDEBTEDNESS NOT SECURED BY ANY LIEN.
"UNUSED FEE" MEANS THE FEE PAYABLE BY BORROWERS TO AGENT FOR THE ACCOUNT OF THE
REVOLVING LOAN LENDERS (BASED ON EACH SUCH REVOLVING LOAN LENDER'S PRO RATA
SHARE OF THE REVOLVING LOAN COMMITMENT AT THE APPLICABLE TIME) ON EACH
QUARTER-END, AS DETERMINED BY AGENT AS OF SUCH QUARTER-END IN AN AMOUNT EQUAL TO
(I) THE DAILY AVERAGE OF THE UNUSED REVOLVING LOAN COMMITMENT DURING SUCH
QUARTER, MULTIPLIED BY (II) A PERCENTAGE BASED UPON THE RATIO OF FUNDED DEBT TO
EBITDA OF THE BORROWER CONSOLIDATED GROUP, AS SET FORTH IN THE CHART BELOW,
DIVIDED BY (III) FOUR (4).
Ratio of Funded Debt to EBITDA
Unused Fee Percentage
Equal to or greater than 3.0 to 1.0
0.25
%
Equal to or greater than 2.5 to 1.0, but less than 3.0 to 1.0
0.20
%
Equal to or greater than 2.0 to 1.0, but less than 2.5 to 1.0
0.175
%
Equal to or greater than 1.5 to 1.0, but less than 2.0 to 1.0
0.15
%
Less than 1.5 to 1.0
0.125
%
"UNUSED REVOLVING LOAN COMMITMENT" MEANS, AS DETERMINED BY AGENT AT ANY TIME, AN
AMOUNT EQUAL TO (I) THE REVOLVING LOAN COMMITMENT, MINUS (II) THE OUTSTANDING
REVOLVING LOAN ADVANCES, MINUS (III) THE AVAILABLE AMOUNT OF THE LETTERS OF
CREDIT, MINUS (III) ANY OUTSTANDING LETTER OF CREDIT ADVANCES.
34
"USA PATRIOT ACT" MEANS THE UNITING AND STRENGTHENING AMERICA BY PROVIDING
APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM ACT OF 2001, PUB.
L. NO. 107-56, 115 STAT. 272 (2001), AS THE SAME HAS BEEN, OR SHALL HEREAFTER
BE, RENEWED, EXTENDED, AMENDED OR REPLACED.
"VOTING POWER" MEANS, WITH RESPECT TO ANY PERSON, THE RIGHT TO VOTE FOR THE
ELECTION OF THE GOVERNING BODY OF SUCH PERSON UNDER ORDINARY CIRCUMSTANCES.
"WACHOVIA" MEANS WACHOVIA BANK, NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, ITS SUCCESSORS AND ASSIGNS.
"WACHOVIA FEE LETTER" MEANS THAT CERTAIN LETTER DATED NOVEMBER 15, 2007 FROM
WACHOVIA TO KMG CHEMICALS AND KMG-BERNUTH, AND PROVIDING FOR THE PAYMENT OF
CERTAIN FEES AS MORE PARTICULARLY DESCRIBED THEREIN.
"WITHOUT NOTICE" MEANS WITHOUT DEMAND OF PERFORMANCE OR OTHER DEMAND,
ADVERTISEMENT, OR NOTICE OF ANY KIND TO OR UPON THE APPLICABLE PERSON, EXCEPT AS
MAY BE REQUIRED UNDER APPLICABLE LAWS OR BY EXPRESS PROVISION OF ANY LOAN
DOCUMENT.
1.3
ACCOUNTING TERMS.
ACCOUNTING TERMS USED AND NOT OTHERWISE DEFINED
IN THIS AGREEMENT HAVE THE MEANINGS DETERMINED BY, AND ALL CALCULATIONS WITH
RESPECT TO ACCOUNTING OR FINANCIAL MATTERS UNLESS OTHERWISE PROVIDED HEREIN
SHALL BE COMPUTED IN ACCORDANCE WITH, GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
1.4
UCC TERMS.