Letter of Credit Agreement dated as of September 14, 2007 among Flowserve B.V., as an Applicant, Flowserve Corporation, as an Applicant and as Guarantor The Additional Applicants from time to time party hereto The Various Lenders From Time to Time...
EXHIBIT
10.1
dated as of September 14, 2007
among
Flowserve B.V., as an Applicant,
Flowserve Corporation,
as an Applicant and as Guarantor
as an Applicant and as Guarantor
The Additional Applicants from time to time party hereto
The Various Lenders From Time to Time Party hereto,
and
ABN AMRO Bank N.V.,
as Administrative Agent
and an Issuing Bank
as Administrative Agent
and an Issuing Bank
ABN AMRO Bank N.V.
Sole Lead Arranger and Sole Book Runner
Sole Lead Arranger and Sole Book Runner
Table of Contents
Section | Heading | Page | ||||
Article I |
Definitions | 1 | ||||
Section 1.01. |
Defined Terms | 1 | ||||
Section 1.02. |
Terms Generally | 17 | ||||
Section 1.03. |
Exchange Rates | 18 | ||||
Article II |
The Letter of Credit Facility | 18 | ||||
Section 2.01. |
Commitments | 18 | ||||
Section 2.02. |
Fees | 25 | ||||
Section 2.03. |
Payments | 26 | ||||
Section 2.04. |
Interest Computation | 26 | ||||
Section 2.05. |
Default Interest | 26 | ||||
Section 2.06. |
Termination and Reduction of Commitments | 27 | ||||
Section 2.07. |
Extension of Termination Date | 27 | ||||
Section 2.08. |
Assignment of Commitments under Certain Circumstances; Duty to Mitigate | 29 | ||||
Section 2.09. |
Reserve Requirements; Change in Circumstances | 30 | ||||
Section 2.10. |
Change in Legality | 31 | ||||
Section 2.11. |
Pro Rata Treatment | 31 | ||||
Section 2.12. |
Taxes | 32 | ||||
Section 2.13. |
Sharing of Setoffs | 33 | ||||
Section 2.14. |
Joinder of Applicants | 33 | ||||
Article III |
Representations and Warranties | 34 | ||||
Section 3.01. |
Organization; Powers | 34 | ||||
Section 3.02. |
Authorization | 34 | ||||
Section 3.03. |
Enforceability | 34 | ||||
Section 3.04. |
Governmental Approvals | 34 | ||||
Section 3.05. |
Financial Statements | 35 | ||||
Section 3.06. |
No Material Adverse Change | 35 | ||||
Section 3.07. |
Title to Properties; Possession Under Leases | 35 | ||||
Section 3.08. |
Subsidiaries | 35 | ||||
Section 3.09. |
Litigation; Compliance with Laws | 35 | ||||
Section 3.10. |
Agreements | 36 | ||||
Section 3.11. |
Federal Reserve Regulations | 36 | ||||
Section 3.12. |
Investment Company Act | 36 | ||||
Section 3.13. |
Letter of Credit | 36 | ||||
Section 3.14. |
Tax Returns | 36 | ||||
Section 3.15. |
No Material Misstatements | 36 | ||||
Section 3.16. |
Employee Benefit Plans | 37 | ||||
Section 3.17. |
Environmental Matters | 37 | ||||
Section 3.18. |
Insurance | 00 |
-x-
Xxxxxxx | Xxxxxxx | Page | ||||
Section 3.19. |
Labor Matters | 37 | ||||
Section 3.20. |
Solvency | 37 | ||||
Section 3.20. |
Subordination of Intercompany Debt | 38 | ||||
Section 3.20. |
Incorporation by Reference | 38 | ||||
Article IV |
Conditions to Closing and Letters of Credit | 38 | ||||
Section 4.01. |
All Letters of Credit | 38 | ||||
Section 4.02. |
Closing Date | 39 | ||||
Article V |
Affirmative Covenants | 41 | ||||
Section 5.01. |
Existence; Businesses and Properties | 41 | ||||
Section 5.02. |
Insurance | 42 | ||||
Section 5.03. |
Obligations and Taxes | 42 | ||||
Section 5.04. |
Guarantor Financial Statements, Reports, etc | 43 | ||||
Section 5.05. |
Other Applicant Financial Statements, Reports, etc | 44 | ||||
Section 5.06. |
Litigation and Other Notices | 44 | ||||
Section 5.07. |
Information Regarding Names and Organization | 45 | ||||
Section 5.08. |
Maintaining Records; Access to Properties and Inspections | 45 | ||||
Section 5.09. |
Use of Proceeds | 45 | ||||
Section 5.10. |
Further Assurances | 45 | ||||
Section 5.11. |
Incorporation by Reference | 46 | ||||
Article VI |
Negative Covenants | 46 | ||||
Section 6.01. |
Contracts with Affiliates | 46 | ||||
Section 6.02. |
Change in the Nature of Business | 46 | ||||
Section 6.03. |
Indebtedness | 46 | ||||
Section 6.04. |
Liens | 47 | ||||
Section 6.05. |
Consolidation, Merger, Sale of Assets, etc | 48 | ||||
Section 6.06. |
Advances, Investments and Loans | 48 | ||||
Section 6.07. |
Restricted Payments | 49 | ||||
Section 6.08. |
Limitation on Restrictions | 50 | ||||
Section 6.09. |
OFAC | 50 | ||||
Section 6.10. |
Net Worth | 50 | ||||
Section 6.11. |
Subordinated Debt | 50 | ||||
Section 6.12. |
Incorporation by Reference | 51 | ||||
Article VII |
Events of Default | 51 | ||||
Article VIII |
The Administrative Agent | 54 | ||||
Section 8.01. |
Appointment | 54 | ||||
Section 8.02. |
Liability of Administrative Agent | 55 | ||||
Section 8.03. |
Resignation and Replacement | 56 | ||||
Section 8.04. |
Administrative Agent Business | 56 | ||||
Section 8.05. |
Indemnification of Administrative Agent | 56 |
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Section | Heading | Page | ||||
Section 8.06. |
No Reliance | 57 | ||||
Section 8.07. |
Notice of Default | 57 | ||||
Article IX |
Miscellaneous | 57 | ||||
Section 9.01. |
Notices | 57 | ||||
Section 9.02. |
Survival of Agreement | 59 | ||||
Section 9.03. |
Binding Effect | 60 | ||||
Section 9.04. |
Successors and Assigns | 60 | ||||
Section 9.05. |
Expenses; Indemnity | 63 | ||||
Section 9.06. |
Right of Setoff | 64 | ||||
Section 9.07. |
Applicable Law | 64 | ||||
Section 9.08. |
Waivers; Amendment | 65 | ||||
Section 9.09. |
Interest Rate Limitation | 65 | ||||
Section 9.10. |
Entire Agreement | 66 | ||||
Section 9.11. |
Waiver of Jury Trial | 66 | ||||
Section 9.12. |
Severability | 66 | ||||
Section 9.13. |
Counterparts | 66 | ||||
Section 9.14. |
Headings | 66 | ||||
Section 9.15. |
Jurisdiction; Consent to Service of Process | 66 | ||||
Section 9.16. |
Judgment Currency | 67 | ||||
Section 9.17. |
Confidentiality | 68 | ||||
Section 9.18. |
Payments Set Aside | 68 | ||||
Section 9.19. |
European Monetary Union | 69 | ||||
Section 9.20. |
USA Patriot Act | 69 | ||||
Section 9.21. |
USA German Limited Liabilities Companies Act | 69 | ||||
Article X |
The Guaranty | 69 | ||||
Section 10.1. |
The Guaranty | 69 | ||||
Section 10.2. |
Guarantee Unconditional | 70 | ||||
Section 10.3. |
Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances | 71 | ||||
Section 10.4. |
Subrogation | 71 | ||||
Section 10.5. |
Waivers | 71 | ||||
Section 10.6. |
Stay of Acceleration | 71 | ||||
Section 10.7. |
Benefit to the Guarantor | 72 |
Schedules |
||||
Schedule 1.01(a)
|
— | Administrative Agent’s Office | ||
Schedule 1.01(b)
|
— | Commitments | ||
Schedule 1.01(c)
|
— | Existing Letters of Credit | ||
Schedule 3.08
|
— | Subsidiaries | ||
Schedule 3.09
|
— | Litigation | ||
Schedule 3.17
|
— | Environmental Matters |
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Exhibits: |
||||
Exhibit A
|
— | Form of Acceptable Letter of Credit | ||
Exhibit B
|
— | Applicant Joinder | ||
Exhibit C
|
— | Assignment and Acceptance | ||
Exhibit D-1
|
— | Guarantor Counsel Opinion | ||
Exhibit D-2
|
— | Domestic Applicant Counsel Opinion | ||
Exhibit D-3
|
— | Foreign Applicant Counsel Opinion | ||
Exhibit E
|
— | Additional Letter of Credit Terms and Conditions | ||
Exhibit F
|
— | Debt Subordination Agreement |
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Flowserve B.V.
Flowserve Corporation
Flowserve Corporation
This Letter of Credit Agreement is dated as of September 14, 2007, and entered into
among Flowserve Corporation, a New York corporation (the “Guarantor”), Flowserve B.V., a
company organized and existing under the laws of the Netherlands with its corporate seat in Breda,
the Netherlands and having its address at Xxxxxxxxxxx 0, 0000 XX Xxxxx-Xxxx, xxx Xxxxxxxxxxx, and
other Subsidiaries of the Guarantor from time to time party hereto as applicants for letters of
credit hereunder (collectively, including the Guarantor, the “Applicants” and individually, an
“Applicant”), the financial institutions from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and ABN AMRO Bank N.V., a public company with
limited liability organized and existing under the laws of the Netherlands, with its
corporate seat in Amsterdam, the Netherlands, and having an address at 000 Xxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx, as an Issuing Bank and as Administrative Agent for the Lenders.
Whereas, the Guarantor has requested that (i) the Issuing Banks issue letters of
credit in an aggregate face amount of €150,000,000, which will be used for contingent
obligations (including obligations as an account party under any letter of credit) solely in
respect of surety and performance bonds, bank guarantees and similar obligations in respect of
contractual obligations of the Applicants; provided such obligations are incurred in the ordinary
course of business; and (ii) the Lenders provide credit support for such letters of credit, and;
Whereas, the Issuing Banks and the Lenders are willing to issue such letters of
credit and provide such credit support, respectively, pursuant to the terms and conditions of this
Agreement on the terms and subject to the conditions set forth herein.
Now, Therefore, in consideration of the premises and the agreements, provisions and
covenants herein contained, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Article I
Definitions
Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
“ABN AMRO” shall mean ABN AMRO Bank N.V. and any successor thereto.
“Acceptable Letter of Credit” means, as of any date, an irrevocable letter of credit
satisfying all of the following conditions: (i) such letter of credit is issued by a domestic or
foreign bank whose outstanding unsecured and unsupported long-term debt at such time is rated A or
better by S&P and A-2 or better by Xxxxx’x; (ii) such letter of credit permits the
beneficiary thereunder to draw the amount of any Excess L/C Exposure, as certified by such
beneficiary from time to time to the issuer of such letter of credit (with a copy to the
Guarantor); (iii) such letter of credit is similar to the form of Exhibit A hereto and (iv) the
terms of such letter of credit are otherwise acceptable to the Administrative Agent, in its sole
discretion.
“Administrative Agent” means ABN AMRO in its capacity as administrative agent under any of the
Facility Documents or any successor administrative agent in respect thereof.
“Administrative Agent’s Office” means (a) the office of the Administrative Agent identified on
Schedule 1.01(a), or such other office as the Administrative Agent may hereafter designate by
notice to the Guarantor or (b) with respect to payments required to be made in an Alternative
Currency (other than the Dollar), such other office, branch or affiliate of the Administrative
Agent as the Administrative Agent may hereafter designate by notice to the Guarantor.
“Administrative Questionnaire” shall mean an Administrative Questionnaire in such form as may
be supplied from time to time by the Administrative Agent.
“Affiliate” shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified.
“Agent Parties” shall mean the Administrative Agent and each of its Affiliates.
“Agreement” shall mean this Letter of Credit Agreement dated as of September 14, 2007, as it
may be amended, supplemented or otherwise modified from time to time.
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding sentence, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in
the Prime Rate or the Federal Funds Rate, respectively. The term “Prime Rate” shall mean the rate
of interest per annum publicly announced from time to time by the Administrative Agent as its prime
rate in effect for Dollars (calculated on the basis of the actual number of days elapsed and a
365-day year); each change in the Prime Rate shall be effective on the date specified in the public
announcement of such change. The Prime Rate is not necessarily the lowest rate of interest charged
by the Administrative Agent in connection with extensions of credit.
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“Alternative Currency” shall mean, with respect to any Letter of Credit, Sterling, Dollars and
any other freely transferable currency (other than euros) in which such Letter of Credit shall be
denominated, as requested by an Applicant and agreed to by the applicable Issuing Bank and the
Administrative Agent.
“Alternative Currency Letter of Credit” shall mean any Letter of Credit denominated in an
Alternative Currency.
“Applicable Law” means, for any Person, all applicable provisions of all (i) constitutions,
treaties, statutes, laws, rules, regulations and ordinances of any Governmental Authority; (ii)
authorizations, consents, approvals, permits, or licenses of, or registrations of filings with, any
Governmental Authority and (iii) orders, decisions, judgments, awards and decrees of any
Governmental Authority, in each case, applicable to or binding upon such Person or any of its
properties.
“Applicable Margin” shall mean, for any day, with respect to Letters of Credit, the Unused
Commitment Fee, or any unreimbursed L/C Disbursements, the applicable margin set forth below under
the corresponding caption, in each case, based upon the Leverage Ratio as of the relevant date of
determination:
Letters of Credit and | ||||||||
Unreimbursed L/C | ||||||||
Leverage Ratio | Disbursements | Unused Commitment Fee | ||||||
Category 1 Greater than or
equal to 2.75 to 1.00 |
0.750 | % | 0.275 | % | ||||
Category 2 Greater than or
equal to 2.00 to 1.00 but
less than 2.75 to 1.00 |
0.625 | % | 0.225 | % | ||||
Category 3 Greater than or
equal to 1.25 to 1.00 but
less than 2.00 to 1.00 |
0.500 | % | 0.175 | % | ||||
Category 4 Less than 1.25 to
1.00 |
0.375 | % | 0.125 | % |
Each change in the Applicable Margin resulting from a change in the Leverage Ratio shall be
effective on and after the date of delivery to the Administrative Agent of the financial statements
and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively, indicating
such change until the date immediately preceding the next date of delivery of such financial
statements and certificates indicating another such change. Notwithstanding the foregoing, as of
the Closing Date, the Leverage Ratio shall be deemed to be in Category 3, and until the Guarantor
shall have delivered the financial statements and certificates required by Section 5.04(a), Section
5.04(b) and Section 5.04(c), respectively, for the its fiscal quarter ended September 30, 2007;
provided, however, that (a) at any time during which the Guarantor has failed to deliver the
financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c),
respectively, or (b) at any time after the occurrence and during the continuance
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of an Event of Default, the Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Margin.
“Applicant” shall have the meaning assigned to such term in the introductory paragraph hereto.
“Applicant Joinder” shall mean an agreement from a Subsidiary of the Guarantor in the form of
Exhibit B or such other form as shall be approved by the Administrative Agent.
“Application” shall have the meaning assigned to such term in Section 2.01(b).
“Assignee Group” shall mean two or more assignees that are Affiliates of one another or two or
more Related Funds.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent, in the form of Exhibit C or such other
form as shall be approved by the Administrative Agent.
“Assignment Fee” shall have the meaning assigned to such term in Section 9.04(b).
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in
Chicago, Illinois are authorized or required by law to close; provided, however, that when used in
connection with euros or any Alternative Currency (other than Dollars), the term “Business Day”
shall also exclude any day on which commercial banks are not open for domestic and international
business (including dealings in the euro or the particular Alternate Currency, as applicable) in
both (a) the place where drawings under the particular Letter of Credit are to be paid and (b) the
place where any amount must be paid or made available under this Agreement.
“Calculation Date” shall mean (a) the last Business Day of each month, if any Alternative
Currency Letter of Credit is outstanding on such day, and (b) the Business Day preceding the date
of issuance, extension, renewal or amendment of any Alternative Currency Letter of Credit.
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change in Control” shall be deemed to have occurred if (a) any person or group (within the
meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
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hereof) shall own directly or indirectly, beneficially or of record, shares representing more
than 25% of the aggregate ordinary voting power represented by the issued and outstanding capital
stock of the Guarantor; (b) a majority of the seats (other than vacant seats) on the board of
directors of the Guarantor shall at any time be occupied by persons who were neither (i) nominated
by the board of directors of the Guarantor, nor (ii) appointed by directors so nominated; (c) any
change in control (or similar event, however denominated) with respect to the Guarantor or any
Subsidiary shall occur under and as defined in any indenture or agreement in respect of Material
Indebtedness to which the Guarantor or any Subsidiary is a party; or (d) the Guarantor ceases to
own directly or indirectly, beneficially or of record, shares representing 100% of the aggregate
ordinary voting power represented by the issued and outstanding stock of any Other Applicant.
“Change in Law” shall mean (a) the adoption of any Applicable Law after the date of this
Agreement, (b) any change in any Applicable Law by any Governmental Authority after the date of
this Agreement or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.09,
by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
“Charges” shall have the meaning assigned to such term in Section 9.09.
“Closing Date” shall mean the date that the conditions set forth in Section 4.02 are
satisfied.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” shall mean, with respect to any Lender, the amount set forth for such Lender as
its Commitment on Schedule 1.01(b) and, with respect to all Lenders, the aggregate reduced or
terminated amount of the Commitments set forth on Schedule 1.01(b), in each case, as amended or
terminated from time to time pursuant to Section 2.06 or Article VII, or reduced or increased from
time to time pursuant to assignments under Sections 2.07, 2.08 or 9.04 hereof.
“Company Materials” shall have the meaning assigned to such term in Section 9.01.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have
meanings correlative thereto.
“Credit Event” shall have the meaning assigned to such term in Section 4.01.
“Credit Parties” shall mean, collectively, the Guarantor and the Other Applicants, and each of
the Credit Parties is referred to individually as a “Credit Party”.
“Declining Lender” shall have the meaning assigned to each term in Section 2.07(b).
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“Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.
“Dollars” or “$” shall mean lawful money of the United States of America.
“Dollar Equivalent” shall mean, with respect to an amount of any Alternative Currency (other
than Dollars) on any date, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.03 using the applicable Dollar Exchange Rate with
respect to such currency at the time in effect.
“Dollar Exchange Rate” shall mean, on any day with respect to Alternative Currency (other than
Dollars), the rate at which such Alternative Currency may be exchanged into Dollars (or, for
purposes of any provision of this Agreement requiring or permitting the conversion of an
Alternative Currency (other than Dollars) to Dollars, the rate at which Dollars may be exchanged
into an Alternative Currency (other than Dollars)), based on the spot rate of exchange of the
Administrative Agent in the primary market where its foreign currency exchange operations in
respect of such Alternative Currency are then being conducted, at or about 10:00 a.m., local time,
on such date for the purchase of Dollars (or such Alternative Currency, as the case may be) for
delivery two Business Days later; provided that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method
it deems appropriate to determine such rate, and such determination shall be presumed correct
absent manifest error.
“Domestic Subsidiaries” shall mean all Subsidiaries incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.
“EMU Legislation” shall mean the legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more member states.
“Environmental Laws” shall mean all applicable Federal, state, local and foreign laws
(including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments and
orders (including consent orders), in each case, relating to protection of the environment, natural
resources, human health and safety as related to Hazardous Materials 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 liabilities, obligations, claims, actions, suits,
judgments or orders under or relating to any Environmental Law for any damages, injunctive relief,
losses, fines, penalties, fees, expenses (including fees and expenses of attorneys and consultants)
or costs, including those arising from or relating to: (a) any action to address the on-or
off-site presence, Release of, or exposure to, Hazardous Materials; (b) permitting and licensing,
administrative oversight, insurance premiums and financial assurance requirements; (c) any personal
injury (including death), property damage (real or personal) or natural resource damage; and (d)
the compliance or non-compliance with any Environmental Law.
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“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Guarantor, is treated as a single employer under Section 414(b) or (c) of the
Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Guarantor or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of, or withdrawal from, any Plan or the withdrawal or partial withdrawal of the
Guarantor or any of its ERISA Affiliates from any Multiemployer Plan; (e) the receipt by the
Guarantor or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the adoption of any amendment to a Plan that would require the provision of security
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (g) the receipt by the
Guarantor or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from the Guarantor or any of its ERISA Affiliates of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence of a
“prohibited transaction” (within the meaning of Section 4975 of the Code) with respect to which the
Guarantor or any such Subsidiary incurs liability; or (i) any Foreign Benefit Event.
“euro”
or “€” shall mean the single currency of the European Union as constituted by the
Treaty on European Union and as referred to in the EMU Legislation.
“Euro Equivalent” shall mean, with respect to an amount of any Alternative Currency on any
date, the equivalent in euros of such amount, determined by the Administrative Agent pursuant to
Section 1.03 using the applicable Exchange Rate with respect to such currency at the time in
effect.
“Event of Default” shall have the meaning assigned to such term in Article VII.
“Excess L/C Exposure” means, as of any date, the excess of the L/C Exposure with respect to
all Lenders, over the aggregate Commitments of all Lenders.
“Exchange Rate” shall mean, on any day with respect to an Alternative Currency, the rate at
which such Alternative Currency may be exchanged into euros (or, for purposes of any provision of
this Agreement requiring or permitting the conversion of an Alternative Currency to euros, the rate
at which euros may be exchanged into an Alternative Currency), based on the spot
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rate of exchange of the Administrative Agent in the primary market where its foreign currency
exchange operations in respect of such Alternative Currency are then being conducted, at or about
10:00 a.m., local time, on such date for the purchase of euros (or such Alternative Currency, as
the case may be) for delivery two Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use
any reasonable method it deems appropriate to determine such rate, and such determination shall be
presumed correct absent manifest error.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of the
Guarantor or any Other Applicant hereunder, (a) income or franchise taxes imposed (or measured) on
the basis of the net income of such recipient by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office is located, (b)
any branch profits taxes imposed by the United States of America or any similar tax imposed by the
jurisdiction under the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office is located and (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by the Guarantor
under Section 2.08(a), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.20(e),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional amounts from the
Guarantor with respect to such withholding tax pursuant to Section 2.20(a).
“Existing Credit Agreement” shall mean the Credit Agreement dated as of August 12, 2005, among
the Guarantor, the Lenders party thereto, Bank of America, N.A. as administrative agent, collateral
agent, and swingline lender, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as syndication
agent, and Calyon New York Branch, Mizuho Corporate Bank and PNC Bank, National Association, as
co-documentation agents, as amended, restated, supplemented or otherwise modified from time to
time.
“Existing Letters of Credit” shall mean those bank guarantees, bid bonds, surety bonds,
performance bonds and letters of credit issued by an Issuing Bank for an Applicant prior to the
date hereof and listed on Schedule 1.01(c).
“Facility Documents” shall mean this Agreement, the Letters of Credit, the Applications and
all other agreements and other documents from time to time executed in connection herewith or
therewith (including the Proposal Letter), in each case as amended, supplemented or otherwise
modified from time to time.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100th of 1%) 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 such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York on the Business
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Day next succeeding such day; provided that if such rate is not so published for any day that
is a Business Day, the Federal Funds Rate for such day shall be the average rate charged to the
Administrative Agent on such day on such transactions as determined by the Administrative Agent.
“Fees” shall mean the Unused Commitment Fees, the Administrative Agent’s Fees, L/C
Participation Fees and the other fees payable pursuant to the terms of this Agreement, or the
Proposal Letter.
“Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.
“Flowserve B.V.” shall mean Flowserve B.V., a company organized under the laws of the
Netherlands and a Subsidiary of the Guarantor.
“Foreign Benefit Event” shall mean, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan and (d) the incurrence of any liability in excess of $10,000,000
(or the Dollar Equivalent thereof in another currency) by the Guarantor or any of its Subsidiaries
under applicable law on account of the complete or partial termination of such Foreign Pension Plan
or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence
of any transaction that is prohibited under any applicable law that results in the incurrence of
any liability by the Guarantor or any of its Subsidiaries, or the imposition on the Guarantor or
any of its Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with
any applicable law, in each case in excess of $10,000,000 (or the Dollar Equivalent thereof in
another currency).
“Foreign Lender” shall mean any Lender that is organized in or under the laws of a
jurisdiction other than the United States of America, any State thereof or the District of
Columbia. For purposes of this definition, the United States of America, any State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Pension Plan” shall mean any benefit plan which under applicable foreign law is
required to be funded through a trust or other funding vehicle other than a trust or funding
vehicle maintained exclusively by a Governmental Authority.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“GAAP” shall mean United States generally accepted accounting principles applied on a
consistent basis.
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“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.
“Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such
person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; but, provided, however, that the term
“Guarantee” shall not include endorsements for collection or deposit in the ordinary course of
business.
“Guarantor” shall have the meaning assigned to such term in the introductory paragraph hereto.
“Hazardous Materials” shall mean (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, in each case regulated by
any Environmental Law, and (b) any chemical, material, substance or waste that is prohibited,
limited or regulated by or pursuant to any Environmental Law.
“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person, (e) all obligations
of such person issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by
such person of Indebtedness of third parties, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person as an account party in respect of letters of credit, (j) all
obligations of such person in respect of bankers’ acceptances, and (k) all obligations under any
so-called “asset securitization” transaction entered into by such person. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is a general partner,
except to the extent the terms of such Indebtedness provide that such Indebtedness is non-recourse
to such person.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
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“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).
“Insolvency Event” means a Default or Event of Default under Article VII paragraph (g) or (h).
“Investment Grade Ratings” shall mean that the credit rating of the Guarantor’s senior
unsecured, non-credit-enhanced long-term debt (the “Senior Unsecured Debt”) is (a) BBB- or higher,
as determined by S&P, and (b) Baa3 or higher, as determined by Moody’s. The Guarantor shall be
deemed to have obtained Investment Grade Ratings if it shall deliver to the Administrative Agent
letters from S&P and Xxxxx’x to the effect that the Senior Unsecured Debt, as defined in the
Existing Credit Agreement, would be so rated assuming that the Secured Parties, as defined in the
Existing Credit Agreement, had released their liens in the Collateral, as defined in the Existing
Credit Agreement.
“Issuing Bank” shall mean, as the context may require, ABN AMRO and its Subsidiaries and other
Affiliates.
“Judgment Currency” shall have the meaning assigned to such term in Section 9.16.
“Judgment Currency Conversion Date” shall have the meaning assigned to such term in Section
9.16.
“L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.
“L/C Exposure” shall mean, at any time, the sum of (a) the Trade L/C Exposure and (b) the
Performance L/C Exposure at such time. The L/C Exposure of any Lender at any time shall equal its
Pro Rata Percentage of the aggregate L/C Exposure at such time.
“L/C Participation Fees” shall have the meaning assigned to such term in Section 2.02(c).
“Lender Parties” shall mean, collectively, the Lender, the Issuing Banks and the
Administrative Agent.
“Lenders” shall have the meaning assigned to such term in the introductory paragraph hereto.
“Letter of Credit” shall have the meaning assigned to such term in Section 2.01(a).
“Leverage Ratio” shall mean Leverage Ratio as defined in the Existing Credit Agreement;
provided that, if the Existing Credit Agreement is terminated, or otherwise ceases to be in full
force and effect for any reason, the definition of Leverage Ratio shall mean the Leverage Ratio in
the Existing Credit Agreement immediately prior to such termination.
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“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest 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.
“Margin Regulations” means Regulations T, U and X of the Board as from time to time in effect
and all official rulings and interpretations thereunder or thereof.
“Margin Stock” means “margin stock” as defined in the Margin Regulations.
“Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets,
results of operations or financial condition of the Guarantor and the Subsidiaries, taken as a
whole, (b) material impairment of the ability of the Guarantor or any Other Applicant to perform
its obligations under the Facility Documents to which it is or will be a party or (c) material
impairment of the rights of or benefits available to the Lenders or Administrative Agent under the
Facility Documents.
“Material Indebtedness” shall mean Indebtedness (other than the Letters of Credit) of any one
or more of the Guarantor and the Subsidiaries in an aggregate principal amount exceeding
$10,000,000 (or the Dollar Equivalent thereof in another currency).
“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any successor thereto.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Worth” means, at any time the same is to be determined, total shareholder’s equity
(including capital stock, additional paid-in capital and retained earnings after deducting treasury
stock) that would appear on the balance sheet of the respective Other Applicant and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.08(a).
“Non-Dollar Interest Rate” means, at any time and with respect to the euro and any Alternative
Currency (other than the Dollar), a rate equal to the per annum rate of interest as determined in
good faith by the Administrative Agent (rounded upwards, if necessary, to the next higher 1/16 of
1%) at which overnight or weekend deposits (or, if the relevant amount due remains unpaid more than
three Business Days, then for such other period of time not longer than one month as the
Administrative Agent may elect in good faith) of the euros or the relevant Alternative Currency, as
applicable, for delivery in immediately available and freely transferable funds would be offered by
the Administrative Agent to major banks in the interbank market upon
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request of such major banks for the applicable period as determined above and in an amount
comparable to the unpaid principal of any applicable amount due hereunder denominated in euros or
an Alternative Currency (other than Dollars) (or, if the Administrative Agent is not placing
deposits in such currency in the interbank market, then the Administrative Agent’s cost of funds in
such currency for such period). The Non-Dollar Interest Rate is not necessarily the lowest rate of
interest charged by the Administrative Agent in connection with extensions of credit in the euro or
in such Alternative Currency.
“Obligation Currency” shall have the meaning assigned to such term in Section 9.16.
“Obligations” shall mean all present and future obligations and liabilities of the Guarantor
and the Other Applicants of every type and description arising under or in connection with this
Agreement, any Letter of Credit or any of the other Facility Documents due or to become due to any
Lender Party or any Person entitled to indemnification hereunder or thereunder, or any of their
respective successors, transferees or assigns which becomes a Lender hereunder, whether for letter
of credit or other reimbursement obligations, interest, cash collateral cover, Fees, expenses,
indemnities or other amounts (including attorneys’ fees and expenses) and whether due or not due,
direct or indirect, joint and/or several, absolute or contingent, voluntary or involuntary,
liquidated or unliquidated, determined or undetermined, denominated or payable in Euros or in an
Alternative Currency and whether now or hereafter existing, renewed or restructured, whether or not
from time to time decreased or extinguished and later increased, created or incurred, whether or
not arising after the commencement of a proceeding under title 11 of the United States Code, as now
constituted or hereafter amended, (including post-petition interest) and whether or not allowed or
allowable as a claim in any such proceeding, and whether or not recovery of any such obligation or
liability may otherwise be unenforceable.
“Operational Agreements” shall have the meaning assigned to such term in Section 4.02(j).
“Other Applicants” shall mean any and all Applicants other than the Guarantor.
“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made under any
Facility Document or from the execution, delivery or enforcement of, or otherwise with respect to,
any Facility Document.
“Patriot Act” shall mean the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Performance L/C Exposure” shall mean, at any time, the sum of (a) the aggregate Stated Amount
of all outstanding Performance Letters of Credit at such time that are denominated in euros, plus
the Euro Equivalent at such time of the aggregate Stated Amount of
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all outstanding Alternative Currency Performance Letters of Credit, and (b) the aggregate
principal amount of all L/C Disbursements in respect of Performance Letters of Credit denominated
in euros that have not yet been reimbursed at such time plus the Euro Equivalent at such time of
the aggregate principal amount of all L/C Disbursements in respect of Performance Letters of Credit
denominated in Alternative Currencies that have not yet been reimbursed at such time. The
Performance L/C Exposure of any Lender at any time shall equal its Pro Rata Percentage of the
aggregate Performance L/C Exposure at such time.
“Performance Letter of Credit” shall mean each bank guaranty, bid bond, surety bond,
performance bond and letter of credit, including any Existing Letters of Credit, issued (or deemed
issued) pursuant to Section 2.01(a) under which an Issuing Bank agrees to make payments for the
account of an Applicant in respect of obligations (other than Indebtedness) of, or performance by,
such Applicant pursuant to contracts to which such Applicant is or proposes to be a party, in each
case in the ordinary course of business of such Applicant.
“Permitted Acquisition” shall have the meaning assigned to such term in the Existing Credit
Agreement.
“Permitted Investments” shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, one of the three highest credit
ratings obtainable from S&P or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within one year from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any Agent or any
domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits
of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria of clause (c) above;
(e) investments in “money market funds” within the meaning of Rule 2a-7 of the
Investment Company Act of 1940, as amended, substantially all of whose assets are invested
in investments of the type described in clauses (a) through (d) above; and
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(f) other short-term investments utilized by Foreign Subsidiaries in accordance with
normal investment practices for cash management in investments of a type analogous to the
foregoing.
“person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership or government, or any agency or
political subdivision thereof.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Guarantor or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” shall have the meaning assigned to such term in Section 9.01.
“Proposal Letter” shall mean the Proposal Letter dated August 9, 2007, between the Guarantor
and the Administrative Agent.
“Pro Rata Percentage” of any Lender at any time shall mean the percentage of the Total
Commitments represented by such Lender’s Commitment. In the event the Commitments shall have
expired or been terminated, the Pro Rata Percentages shall be determined on the basis of the
Commitments most recently in effect.
“Public Lender” shall have the meaning assigned to such term in Section 9.01.
“Register” shall have the meaning given such term in Section 9.04(d).
“Related Fund” shall mean, with respect to any Lender that is a fund that invests in bank
loans, any other fund that invests in bank loans and is advised or managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
“Release” shall mean 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.
“Required Lenders” means Lenders holding more than 50% of (a) the Commitments or (b) if the
Commitments have then been terminated, the Euro Equivalent of the Stated Amount of all outstanding
Letters of Credit.
“Responsible Officer” shall have the meaning assigned to such term in Section 2.01(m).
“S&P” shall mean Standard & Poor’s Ratings Services or any successor thereto.
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“Stated Amount” means, at any time, with respect to a Letter of Credit, the maximum amount
available to be drawn thereunder at such time, without regard to whether any conditions to drawing
could be met.
“Sterling” or “£” shall mean lawful money of the United Kingdom.
“Subordinated Debt” means Indebtedness which is subordinated in right of payment to the prior
payment of the Obligations either (a) pursuant to a Debt Subordination Agreement in the form
attached hereto as Exhibit F, or (b) pursuant to other subordination documentation approved in
writing by the Administrative Agent in an amount that is, and which contains interest rates,
payment terms, maturities, amortization schedules, covenants, defaults, remedies and other material
terms that are in form and substance satisfactory to the Administrative Agent.
“Subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership interests are, at the time any
determination is being made, directly or indirectly owned, controlled or held. Unless otherwise
expressly noted herein, the term “Subsidiary” means a Subsidiary of the Guarantor or any of its
direct or indirect Subsidiaries.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Termination Date” shall mean the day that is 364 days after the date hereof, or if that day
is not a Business Day, the next proceeding Business Day.
“Total Commitments” means the aggregate amount of the Commitments, which shall initially be
Eighty Million euros (€80,000,000), as such amount may be increased pursuant to the provisions
of Section 2.01(n) hereof or decreased pursuant to the provisions of (a) Section 2.06 hereof or (b)
other applicable provisions of this Agreement.
“Trade Letter of Credit” shall mean each commercial documentary letter of credit, including
any Existing Letters of Credit, issued (or deemed issued) by an Issuing Bank for the account of any
Applicant pursuant to Section 2.01(a) for the purchase of goods by such Applicant in the ordinary
course of its business.
“Trade L/C Exposure” shall mean at any time the sum of (a) the aggregate Stated Amount of all
outstanding Trade Letters of Credit at such time that are denominated in euros, plus the Euro
Equivalent at such time of the aggregate Stated Amount of all outstanding Alternative Currency
Trade Letters of Credit, and (b) the aggregate principal amount of all L/C Disbursements in respect
of Trade Letters of Credit denominated in euros that have not yet been reimbursed at such time plus
the Euro Equivalent at such time of the aggregate principal amount of all L/C Disbursements in
respect of Trade Letters of Credit denominated in Alternative Currencies that have not yet been
reimbursed at such time.
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“Transactions” shall mean, collectively, the transactions to occur pursuant to the Facility
Documents, including the execution and delivery of the Facility Documents, the performance by the
Guarantor and the Other Applicants of their respective obligations thereunder and the payment of
all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the
foregoing.
“Treaty of the European Union” means the Treaty of Rome of March 25, 1957, as amended by the
Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at Maastricht on February 7,
1992, and came into force on November 1, 1993), as amended from time to time.”
“UCP” shall have the meaning assigned to such form in Section 2.01(j).
“Unused Commitment Fee” shall have the meaning assigned to such term in Section 2.02(a).
“Wholly-owned Subsidiary” of any person shall mean a Subsidiary of such person of which
securities (except for directors’ qualifying shares) or other ownership interests representing 100%
of the equity or 100% of the ordinary voting power or 100% of the general partnership interests
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.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
Section 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
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.” All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, (a) any reference in this
Agreement to any Facility Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided, however, that if
the Guarantor notifies the Administrative Agent that the Guarantor wishes to amend any covenant in
Article VI or any related definition to eliminate the effect of any change in GAAP occurring after
the date of this Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Guarantor that the Required Lenders wish to amend Article VI or any related definition
for such purpose), then the Guarantor’s compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Guarantor and the Required Lenders.
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Section 1.03. Exchange Rates. (a) On each Calculation Date, the Administrative Agent shall
(i) determine the relevant Exchange Rates as of such Calculation Date and (ii) give notice thereof
to the Lenders and the Guarantor. The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date (a “Reset Date”), shall
remain effective until the next succeeding Reset Date, and shall for all purposes of this Agreement
(other than Section 2.02(d), Section 9.16 or any other provision expressly requiring the use of a
current Exchange Rate) be the Exchange Rates employed in converting any amounts between euros and
Alternative Currencies. On each Calculation Date, the Administrative Agent shall (i) determine the
relevant Dollar Exchange Rates as of such Calculation Date and (ii) give notice thereof to the
Lenders and the Guarantor. The Dollar Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date (a “Dollar Reset Date”),
shall remain effective until the next succeeding Dollar Reset Date, and shall for all purposes of
this Agreement (other than Section 9.16 or any other provision expressly requiring the use of a
current Dollar Exchange Rate) be the Dollar Exchange Rates employed in converting any amounts
between Dollars and Alternative Currencies other than Dollars.
(b) Notwithstanding the foregoing, no Default shall be deemed to have occurred if, solely as a
result of changes in exchange rates and not as the result of additional incurrences of
Indebtedness, investments, loans or advances, the dollar equivalent of any amount subject to a cash
basket set forth in Section 6.01, 6.02 or 6.04 of the Existing Credit Agreement is exceeded.
Article II
The Letter of Credit Facility
Section 2.01. Commitments. (a) General. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Issuing Bank agrees, at any time from and
after the Closing Date until the Business Day next proceeding the Termination Date, to issue one or
more letters of credit, surety or performance bonds, bank guarantees or similar obligations in
respect of contractual obligations of the requesting Applicant incurred in the ordinary course of
business for the account of such Applicant or its designated Affiliate (each such letter of credit
and each of the Existing Letters of Credit, a “Letter of Credit”) in an aggregate amount available
to be drawn thereunder at any time outstanding that will not result in (i) the L/C Exposure of any
Lender exceeding such Lender’s Commitment, or (ii) the L/C Exposure exceeding the Total
Commitments. Each Letter of Credit shall be either a Performance Letter of Credit or a Trade
Letter of Credit and shall provide for drawings in either euros or an Alternative Currency. Each
Applicant may request the issuance of a Letter of Credit for its own account or the account of its
designated Affiliate in a form acceptable to the Administrative Agent and the applicable Issuing
Bank at any time and from time to time while the Commitments remain in effect. This Section shall
not be construed to impose an obligation upon any Issuing Bank to issue any Letter of Credit that
is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to
request the issuance of a Letter of Credit (or to amend, renew or extend an existing Letter of
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Credit), the requesting Applicant shall hand deliver, telecopy or send electronically to the
applicable Issuing Bank (provided that, if such Issuing Bank is not authorized or otherwise able to
issue the requested letter of credit, the Administrative Agent shall, after consulting with the
requesting Applicant propose an alternative Issuing Bank) at least three Business Days in advance
of the requested date of issuance, amendment, renewal or extension (or such lesser period of time
as the Issuing Bank may agree) an application (each an “Application”) in form acceptable to such
Issuing Bank, submitted by a Responsible Officer of such Applicant requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and
specifying whether such Letter of Credit is to be a Performance Letter of Credit or a Trade Letter
of Credit (such designation to be subject to the satisfaction of the Issuing Bank, acting
reasonably), the date of issuance, amendment, renewal or extension, the date on which such Letter
of Credit is to expire (which shall comply with paragraph (c) below), the amount of such Letter of
Credit (which shall comply with paragraph (a) above), the currency in which such Letter of Credit
is to be denominated (which shall be euros or, subject to Section 2.10, an Alternative Currency),
the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare such Letter of Credit and such other documents as may be reasonably requested by the
Issuing Bank. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
such issuance, amendment, renewal or extension of each Letter of Credit the Guarantor shall be
deemed to represent and warrant that) after giving effect to such issuance, amendment, renewal or
extension, the L/C Exposure shall not exceed €150,000,000. The Issuing Bank shall provide
prompt notice to the Administrative Agent of each Application received by the Issuing Bank and such
other information with respect thereto or may be requested by the Administrative Agent.
(c) Expiration Dates. Each Letter of Credit shall expire not later than 24 months after the
date of issuance of such Letter of Credit; provided that, notwithstanding the foregoing, at any
time that this Agreement is in effect, (i) one or more Letters of Credit in an aggregate face
amount not to exceed €50,000,000 at any time outstanding may expire on a date that is more than
24 months, but not more than 48 months, after such date of measurement of the then-remaining term
of such Letters of Credit, such that no expiry date for any such Letters of Credit shall be later
than that day occurring 48 months after such date of measurement, and (ii) one or more Letters of
Credit in an aggregate face amount not to exceed €7,500,000 at any time outstanding may expire
on a date that is more than 48 months, but not more than 60 months, after such date of measurement
of the then-remaining term of such Letters of Credit, such that no expiry date for any such Letters
of Credit shall be later than that day occurring 60 months after such date of measurement.
(d) Participations. By the issuance of a Letter of Credit, including without limitation each
of the Existing Letters of Credit, and without any further action on the part of the applicable
Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender, and each
such Lender hereby acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s Pro Rata Percentage of the Stated Amount of such Letter of Credit,
effective upon the issuance of such Letter of Credit; provided that, with respect to the Existing
Letters of Credit, such participation shall be effective on the Closing Date. In consideration and
in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Pro
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Rata Percentage of each L/C Disbursement made by such Issuing Bank in respect of a Letter of Credit
and not reimbursed by the Applicant for such Letter of Credit or, if it is not such Applicant, the
Guarantor (or, if applicable, another party pursuant to its obligations under any other Facility
Document) forthwith on the date due as provided in paragraph (e) below, in the same currency in
which such L/C Disbursement is denominated. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each Lender further
acknowledges and agrees that after the Termination Date it will continue to be obligated with
respect to its applicable Pro Rata Share of Letter of Credit issued while its Commitment was in
effect.
(e) Reimbursement. The applicable Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. If an
Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, the Issuing Bank
will notify the Applicant and the Administrative Agent (which notification may be verbal if
confirmed in writing within a reasonable period thereafter); provided that no such notice shall be
required to be given to the Applicant if an Insolvency Event shall have occurred. Any failure to
give or delay in giving a notice of an L/C Disbursement shall neither relieve the Guarantor nor the
Applicant for such Letter of Credit of its reimbursement obligations with respect to any such L/C
Disbursement. On the date of an L/C Disbursement, the Applicant for such Letter of Credit and the
Guarantor, jointly and severally, shall reimburse the Issuing Bank at such office of the Issuing
Bank as directed by the Issuing Bank, in the same currency in which such L/C Disbursement is
denominated and in immediately available funds, for any and all amounts that the Issuing Bank pays
in respect of the relevant L/C Disbursement under such Letter of Credit together with, in the event
such amount is not paid in full on the date of such L/C Disbursement, interest thereon in the same
currency in which such L/C Disbursement is denominated at the rate provided for in paragraph (g)
below.
(f) Participation Fundings. If the Issuing Bank is not reimbursed for any L/C Disbursement
under any Letter of Credit issued by it as provided in paragraph (e) above, the Issuing Bank shall
promptly notify the Administrative Agent and, upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender of the unreimbursed amount of such L/C Disbursement and of such
Lender’s Pro Rata Percentage thereof. Each Lender shall make available to the Administrative Agent
(for the account of the Issuing Bank), an amount equal to its Pro Rata Percentage of the relevant
Letter of Credit in the same currency in which such L/C Disbursement is denominated, at the
Administrative Agent’s Office, on the Business Day on which the Administrative Agent gives such
notice (if such notification is given prior to 11:00 a.m., Chicago time) or on the Business Day
after the date on which the Administrative Agent gives such notice (if such notification is given
after 11:00 a.m., Chicago time). Each Lender’s obligations under this paragraph: (a) shall not be
subject to any set-off, counterclaim or defense to payment that the Lender may have against the
Guarantor, any Other Applicant, the Administrative Agent or the Issuing Bank and (b) shall be
absolute, unconditional and irrevocable, and as a primary obligor, not as a surety, notwithstanding
any circumstance or event whatsoever, including (i) the occurrence of an Event of Default or a
Default; (ii) the failure of
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any other Lender to fund its participation as required hereby; (iii) the financial condition of the
Guarantor or any Other Applicant or any Lender or any set-off, counterclaim or defense to payment
that the Guarantor or any Applicant may have; (iv) the termination or cancellation of the
Commitments, or (v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Lender or in the relevant currency markets generally. If any
Lender fails to make available to the Administrative Agent the amount of such Lender’s Pro Rata
Share of the Letter of Credit as provided in this paragraph, such amount shall bear interest, if
the Letter of Credit is denominated in Dollars, at the Federal Funds Rate from the day on which
such amount is due until the third Business Day thereafter and then at the Alternative Base Rate
until paid or, if the Letter of Credit is not denominated in Dollars, at the Non-Dollar Interest
Rate from the day on which such amount if due until the Third Business Day thereafter and then at
the Non-Dollar Interest Rate plus the Applicable Margin until paid. The Issuing Bank shall pay to
the Administrative Agent, and the Administrative Agent shall distribute to each Lender that has
paid all amounts payable by it under this paragraph, such Lender’s Pro Rata Share of all payments
received by the Issuing Bank from or on behalf of the Guarantor and the Other Applicants with
respect to drawings honored by the Issuing Bank under a Letter of Credit (including interest
payable pursuant to paragraph (g) below), as and when such payments are received.
(g) Interest. If an Issuing Bank shall make any L/C Disbursement in respect of a Letter of
Credit, then, unless the Applicant for such Letter of Credit and, with respect to Letters of Credit
issued for the account of Other Applicants or other designated Affiliates, the Guarantor shall
reimburse such L/C Disbursement in full on the date when such reimbursement is due, the unpaid
amount thereof shall bear interest for the account of such Issuing Bank, for each day from and
including the date such reimbursement is due, to but excluding the date of payment by the Applicant
for such Letter of Credit and, with respect to Letters of Credit issued for the account of Other
Applicants or other designated Affiliates, the Guarantor at the rate per annum equal to the
Applicable Margin plus (i) with respect to L/C Disbursements denominated in Dollars, the
Alternative Base Rate and (ii) with respect to L/C Disbursements denominated in any other currency,
the Non-Dollar Interest Rate. Accrued interest shall be immediately due and payable, without
notice or demand. Notwithstanding anything to the contrary contained in this paragraph (g), the
applicable interest rate with respect to any L/C Disbursement hereunder that the Applicant for the
Letter of Credit and, with respect to Letters of Credit issued for the account of Other Applicants
or other designated Affiliates, the Guarantor therefore have not reimbursed within 3 Business Days
shall increase by two percent (2.0%) per annum (to but excluding the date of actual payment, after
as well as before judgment).
(h) Obligations Absolute. The Credit Parties’ obligations to reimburse L/C Disbursements as
provided in paragraph (e) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under any and all circumstances
whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or any Facility
Document, or any term or provision therein;
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(ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or any Facility Document;
(iii) the existence of any claim, setoff, defense or other right that the Guarantor,
any other party guaranteeing, or otherwise obligated with, the Guarantor, any Other
Applicant, any Subsidiary or other Affiliate thereof or any other person may at any time
have against the beneficiary under any Letter of Credit, any Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in connection with this
Agreement, any other Facility Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a 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;
(v) payment by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such Letter
of Credit; and
(vi) any other act or omission to act or delay of any kind of any Issuing Bank, the
Lenders, the Administrative Agent or any other person or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this paragraph (i), constitute a legal or equitable discharge of the
Guarantor’s obligations hereunder.
Without limiting the generality of the foregoing, it is expressly understood and agreed that
the absolute and unconditional obligations of the Guarantor and the Other Applicants hereunder to
reimburse L/C Disbursements will not be excused by the gross negligence or willful misconduct of
any Issuing Bank. However, the foregoing shall not be construed to excuse any Issuing Bank from
liability to the Guarantor and the Other Applicants to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the Guarantor and the
Other Applicants to the extent permitted by applicable law) suffered by the Guarantor and the Other
Applicants that are caused by such Issuing Bank’s gross negligence or willful misconduct in
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that each Issuing Bank 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 (i) an 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 (ii) any noncompliance in any immaterial respect of the documents
presented under such Letter of Credit
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with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or
gross negligence of an Issuing Bank.
(i) UCP Applicable; Letters of Credit for Benefit of Issuers Thereof.
(i) The Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the “UCP”), shall in all respects be
incorporated into this Agreement as if fully set forth herein and shall apply to all Letters
of Credit, except (subject to paragraph (h) above, with respect to which Article 5 (as
defined below) shall not apply) to the extent inconsistent with Article 5 of the Illinois
Uniform Commercial Code (“Article 5”) or as preempted by the foreign laws of any applicable
Governmental Authority.
(ii) The parties hereto recognize that some or all of the Letters of Credit from time
to time issued under this Agreement will be issued by an Issuing Bank for the benefit of
itself. Notwithstanding anything to the contrary in the UCP or under Applicable Law, it is
the express intention of the parties that each such Letter of Credit shall constitute, and
be governed by the rules generally applicable to, a Letter of Credit hereunder and a
“credit” under the UCP and Applicable Law (including Article 5 and the local laws of foreign
jurisdictions) as if the issuer of and beneficiary under such Letter of Credit were
different persons.
(j) L/C Exposure Exceeds Total Commitments. If at any time the L/C Exposure exceeds the Total
Commitments, the Guarantor shall, on the Business Day on which the Guarantor is notified of the
excess provide cash as collateral or an Acceptable Letter of Credit to the Administrative Agent as
may be necessary so that, after such provision, the Excess L/C Exposure is fully collateralized or
fully supported, in each case denominated in euros. Upon written request of the Guarantor at any
time when no Excess L/C Exposure exists, the Administrative Agent shall return any cash remaining
after any application by Administrative Agent pursuant to this paragraph (j). Any cash or
Acceptable Letter of Credit (and the proceeds thereof) received by the Administrative Agent
pursuant to this paragraph (j) is hereby pledged to the Administrative Agent as collateral security
for the Obligations and shall be deposited in a segregated account over which the Administrative
Agent has exclusive dominion and control, including exclusive right of withdrawal, and shall be
held by the Administrative Agent as collateral security while the Excess L/C Exposure continues.
Interest or profits, if any, on the amounts in such account shall accumulate in such account. The
Guarantor hereby agrees promptly to take such steps as may be required by the Administrative Agent
in order to perfect a first Lien in favor of the Administrative Agent on such collateral security.
Unless and until the Obligations shall become due and payable hereunder, the cash or drawings under
the Acceptable Letter of Credit received by the Administrative Agent pursuant to this paragraph (j)
shall only be applied to reduce or eliminate the Excess L/C Exposure and may be so applied at any
time when the Administrative Agent, in the exercise of its sole discretion, so determines. At any
time after any of the Obligations shall become due and payable, the cash or drawings under the
Acceptable Letter of Credit shall be applied in whole or in part by the Administrative Agent
against or on account of all or any part of the Obligations that have become so due and payable.
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(k) Cash Collateralization. If any Event of Default shall occur and be continuing, the
Guarantor shall, on the Business Day it receives notice from the Administrative Agent or the
Required Lenders thereof and of the amount to be deposited, provide cash as collateral or an
Acceptable Letter of Credit to the Administrative Agent as may be necessary so that, after such
provision, the L/C Exposure is fully collateralized or fully supported, in each case denominated in
euros. Any cash or Acceptable Letter of Credit (and the proceeds thereof) received by the
Administrative Agent pursuant to this paragraph (k) is hereby pledged to the Administrative Agent
as collateral security for the Obligations and shall be deposited in a segregated account over
which the Administrative Agent has exclusive dominion and control, including exclusive right of
withdrawal, and shall be held by the Administrative Agent as collateral security while the L/C
Exposure continues. Interest or profits, if any, on the amounts in such account shall accumulate
in such account. The Guarantor hereby agrees promptly to take such steps as may be required by the
Administrative Agent in order to perfect a first Lien in favor of the Administrative Agent on such
collateral security. The cash or drawings under the Acceptable Letter of Credit received by the
Administrative Agent pursuant to this paragraph (k) shall be applied in whole or in part by the
Administrative Agent against or on account of all or any part of the Obligations in accordance with
the terms of this Agreement. If the Guarantor is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Guarantor within three Business Days after all
Events of Default have been cured or waived.
(l) Use of Proceeds. No Letter of Credit shall be used directly or indirectly for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock or
maintaining or extending credit to others for such purpose or for any other purpose that otherwise
violates the Margin Regulations.
(m) Responsible Officers. Each Applicant shall notify the Administrative Agent of the names
of its officers and employees authorized to request and take other actions with respect to the
Letters of Credit on its behalf (each a “Responsible Officer”) by providing the Administrative
Agent with the necessary documentation pursuant to the Operational Agreements. The Lender Parties
shall be entitled to rely conclusively on any Responsible Officer’s request or direction take other
actions with respect to Letters of Credit on behalf of an Applicant, until such Applicant notifies
the Administrative Agent pursuant to the terms of the Operational Agreements that such Applicant no
longer designates such natural person as a Responsible Officer for such Applicant. The Lender
Parties shall have no duty to verify the authenticity of the signature appearing on any notice
given under the Facility Documents or the Operational Documents.
(n) Commitment Increases. The Applicants shall be entitled to request, at any time prior to
the Termination Date, that the Total Commitments be increased by an aggregate amount not to exceed
Seventy Million euros €70,000,000 (such additional Commitments are referred to herein as the
“Additional Commitments”); provided that, in no event shall the aggregate Total Commitments exceed
at any time One Hundred Fifty Million euros (€150,000,000); and provided further that (i) no
Default or Event of Default exists at the time of such request, (ii) the Applicants give the
Administrative Agent ten (10) days prior written notice of such election, (iii) no Lender shall be
obligated to increase such Lender’s Commitment without such Lender’s
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prior written consent, which may be withheld in such Lender’s sole discretion, and (iv) any person
providing any Additional Commitment amount that is not already a Lender must be reasonably
acceptable to the Administrative Agent, the L/C Issuers and the Applicants. In connection with any
such increase in the Total Commitments, the parties shall execute any documents reasonably
requested in connection with or to evidence such increase, including without limitation an
amendment to this Agreement.
(o) Additional Terms and Conditions. With respect to each Letter of Credit, each Applicant
agrees to the additional terms and conditions set forth in Exhibit E.
Section 2.02. Fees. (a) Unused Commitment Fee. The Guarantor agrees to pay in euros to the
Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, on
the last Business Day of March, June, September and December, in the year and on the date on which
the Total Commitments shall expire or be terminated as provided herein, an unused commitment fee
(an “Unused Commitment Fee”) equal to the Applicable Margin multiplied by the average daily excess,
if any, during the preceding quarter (or other period commencing with the Closing Date or ending
with the Termination Date or any other date on which the Commitments shall expire or be terminated)
of (i) the Total Commitments then in effect over (ii) the L/C Exposure at such time. The Unused
Commitment Fee due shall commence to accrue on the Closing Date and shall cease to accrue on the
date on which the Commitments shall expire or be terminated as provided herein.
(b) Administrative Agent’s Fees. The Guarantor agrees to pay to the Administrative Agent, for
its own account, and each respective Issuing Bank, for its own account, the fees set forth in the
Proposal Letter at the times and in the currencies and the amounts specified therein.
(c) Letter of Credit Fee. The Guarantor agrees to pay in euros to the Administrative Agent,
for the account of the Lenders in accordance with their Pro Rata Shares, with respect to the period
ending on the last Business Day of March, June, September and December, in each year and ending on
the date on which the Total Commitments shall expire or be terminated as provided herein, a fee (an
“L/C Participation Fee”) equal to the Applicable Margin multiplied by the average daily L/C
Exposure (excluding the portion thereof attributable to unreimbursed L/C Disbursements) during the
preceding quarter (or other period commencing with the Closing Date or ending with the Termination
Date or the date on which all Letters of Credit have been canceled or have expired and the
Commitments shall have been terminated). The Administrative Agent shall provide the Guarantor with
a statement for the L/C Participation Fee computed for such period on or before ten (10) Business
Days after the close of such period and the Guarantor shall pay the L/C Participation Fee within
five (5) Business Days of Guarantor’s receipt of such statement. For purposes of determining the
amount of the L/C Participation Fees with respect to any Letter of Credit not denominated in euros,
the L/C Exposure shall be determined by the Administrative Agent using the Exchange Rates in effect
at approximately 11:00 a.m., Chicago time, on the date that is two Business Days before the
computation of the L/C Participation Fee.
(d) The Applicant for any Letter of Credit issued hereunder shall pay to the relevant Issuing
Bank for its own account, the Issuing Bank’s standard administration (including issuance, drawing,
cancellation, amendment and transfer charges) and handling charges in the
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currency directed by the Issuing Bank, which charges shall be payable at such times and in such
amounts as may be set forth in the standard schedule of such Issuing Bank for such charges.
(e) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the
Issuing Bank Fees shall be paid directly to the applicable Issuing Bank. Once paid, none of the
Fees shall be refundable under any circumstances, unless an error in calculation has been made and
an Applicant has notified the Administrative Agent of such error within ninety (90) days of payment
thereof.
Section 2.03. Payments. (a) The Guarantor and each Other Applicant shall make each payment
(including the principal of and interest on any L/C Disbursement or any Fees or other amounts)
required to be made by it hereunder and under any other Facility Document not later than 10:00
a.m., Chicago time, on the date when due in immediately available funds, without setoff, defense or
counterclaim. Each such payment (other than reimbursements for L/C Disbursements and Issuing Bank
Fees, which shall be paid directly to the applicable Issuing Bank) shall be made to the
Administrative Agent’s Office. Any payments received after 10:00 a.m., Chicago time, by the
Administrative Agent on any Business Day shall be deemed received on the next succeeding Business
Day. Not later than 1:00 p.m., Chicago time, on the day any such payment is received by the
Administrative Agent, the Administrative Agent shall deliver to each Lender Party in immediately
available funds such Lender’s Party’s share of the payment so made. Each such payment (other than
L/C Disbursements, for which payments of principal and interest shall be made in the applicable
currency) shall be made in euros.
(b) Except as otherwise expressly provided herein, whenever any payment (including any Fees or
other amounts) hereunder or under any other Facility Document shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
Section 2.04. Interest Computation. Except as otherwise provided in the definition of
Alternative Base Rate, any interest, Fees and other amounts payable hereunder or under the other
Facility Documents shall be computed on the basis of a 360-day year and the actual number of days
elapsed (including the first and excluding the last day of the period). Any change in an interest
rate or in any amount resulting from a change in the rate applicable thereto (or any component
thereof) pursuant to the terms hereof shall become effective as of the opening of business on the
day on which such change in the applicable rate (or component) shall become effective.
Section 2.05. Default Interest. If any Credit Party shall default in the payment of any
amount becoming due hereunder, by acceleration or otherwise, or under any other Facility Document,
such Credit Party shall pay interest, to the extent permitted by law, on such defaulted amount to
but excluding the date of actual payment (after as well as before judgment) at the rate otherwise
applicable to such amount plus two percent (2.00%); provided, however, that in the absence of
acceleration, any increase in interest rates pursuant to this Section shall be made at the election
of the Administrative Agent, acting at the request or with the consent of the
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Required Lenders, with written notice to the Guarantor. While any Event of Default exists or after
acceleration, accrued interest shall be paid on demand of the Administrative Agent at the request
or with the consent of the Required Lenders.
Section 2.06. Termination and Reduction of Commitments. (a) The Commitments shall
automatically terminate on the Termination Date.
(b) Upon at least three Business Days’ prior written or telecopy notice to the Administrative
Agent (which notice shall be irrevocable, shall include the amount of such termination or reduction
and shall be effective on the date specified in such notice) the Guarantor may at any time in whole
permanently terminate, or from time to time in part permanently reduce, without any premium, fee or
other penalty, the Total Commitments on a pro rata basis; provided, however, that (i) each partial
reduction of the Total Commitments shall be in an integral multiple of €1,000,000 and in a
minimum amount of €5,000,000 and (ii) the Total Commitments shall not be reduced to an amount
that is less than the sum of the L/C Exposure at such time.
(c) The Guarantor shall pay to the Administrative Agent for the account of the Lenders, on the
date of each termination or reduction, all accrued but unpaid Unused Commitment Fees on the amount
of the Commitments so terminated or reduced accrued to but excluding the date of such termination
or reduction.
Section 2.07. Extension of Termination Date. (a) The Guarantor may, by notice to the
Administrative Agent (which shall promptly deliver a copy thereof to each Lender) not less than 45
days and not more than 60 days before any Termination Date then in effect, request that the
Termination Date then in effect be extended to the date 364 days after such Termination Date. If
the Guarantor shall so request such an extension, each Lender, acting in its sole discretion, may,
by notice to the Guarantor and the Administrative Agent not later than the Termination Date, extend
the Termination Date with respect to its Commitment to the date 364 days after such Termination
Date; provided, however, that no such extension shall be effective unless (a) no Default or Event
of Default shall exist on such Termination Date; (b) each of the representations and warranties of
the Guarantor and the Other Applicants set forth in the Facility Documents shall be true and
correct on and as of such date with the same force and effect as if made on and as of each such
date (or, if any such representation or warranty is expressly stated to have been made only as of
or relate only to a specific date, then as of such specific date) and (c) each Lender shall have
agreed to such extension by delivering a notice of acceptance to the Administrative Agent and the
Guarantor not later than the Termination Date then in effect.
(b) In the event that any Lender shall not so extend the Termination Date then in effect (a
“Declining Lender”) at least 30 days prior to such Termination Date, and the Commitment of such
Lender and such Lender’s participations in Letters of Credit have not been assigned to another bank
or lending institution pursuant to Section 9.04 (which assignee bank or other lending institution
shall have so agreed to extend the Termination Date), the Commitment of such Declining Lender shall
terminate on the then effective Termination Date; provided that:
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(i) the Guarantor shall have the right to seek a substitute lender or lenders (which
may be one or more of the other Lenders) that is willing to agree to such extension and to
assume (A) the Commitment of the Declining Lender; (B) the rights and obligations of the
Declining Lender under this Agreement and the other Facility Documents and (C) the rights
and obligations of the Declining Lender under any issued and outstanding Letters of Credit,
without recourse or warranty by, or expense to, the Declining Lender for a purchase price to
be agreed upon between the Declining Lender and such substitute Lender. At the Guarantor’s
request and expense, the Administrative Agent shall assist the Guarantor in seeking to
locate such substitute lenders; provided, however, that existing Lenders shall have the
first opportunity to so assume, by irrevocable notice to the Guarantors and the
Administrative Agent, the Declining Lender’s Commitment, which first opportunity shall
expire unless so exercised on or prior to the day that is 20 days prior to the then
effective Termination Date. Notwithstanding the foregoing, no proposed substitute lender
shall become a Lender hereunder without the prior consent of the Administrative Agent, each
Issuing Bank and the Guarantors. Upon such an assumption of the Declining Lender’s
Commitment and, subject to Section 2.07(b)(ii), on the then-scheduled Termination Date, the
Declining Lender shall no longer be a party hereto or have any obligations (including those
in respect of outstanding Letters of Credit) or rights hereunder, and the substitute lender
or lenders will succeed to the rights and assume the obligations of the Declining Lender
hereunder, all pursuant to an Assignment and Acceptance and in accordance with Section 9.04.
(ii) If none of the existing Lenders and no other bank or financial institution is
found to assume the Commitment and the liabilities and obligations of the Declining Lender,
such Declining Lender will continue to be obligated with respect to its applicable Pro Rata
Share of Letters of Credit issued while its Commitment was in effect and will be considered
a Lender hereunder for such purposes. In addition, notwithstanding Section 2.07(a), if the
Commitments of the Lenders who have approved the requested extension of the Termination Date
aggregate at least the L/C Exposure on the then-existing Termination Date, all of the
obligations under this Agreement and the other Facility Documents of each Lender Party
(other than any Declining Lender) shall continue without modification, other than the
reduction on the Termination Date of the aggregate Commitment of all Lenders (including each
such Declining Lender) to the aggregate Commitment of all Lenders (other than each such
Declining Lender).
(iii) Notwithstanding anything herein to the contrary, if the Commitments of all
continuing Lenders and of any additional Lenders do not aggregate at least the L/C Exposure
on the then-existing Termination Date, the Commitments of all Lenders shall automatically
terminate on the Termination Date.
(iv) Upon any increase of the Commitment of any Lender or any substitute Lender
becoming a party hereto pursuant to Section 2.07(b)(i), the Administrative Agent shall
prepare a replacement Schedule 1.01(b) reflecting all Lenders and all Commitments giving
effect to such changes and shall distribute a copy of such Schedule 1.01(b) to the
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Guarantors and all other Lender Parties and, absent manifest error, such replacement
Schedule 1.01(b) shall become Schedule 1.01(b) for all purposes of this Agreement.
Section 2.08. Assignment of Commitments under Certain Circumstances; Duty to Mitigate. (a)
In the event (i) any Lender or Issuing Bank delivers a certificate requesting compensation pursuant
to Section 2.09, (ii) any Lender or Issuing Bank delivers a notice described in Section 2.10, (iii)
the Guarantor or any Other Applicant is required to pay any additional amount to any Lender or
Issuing Bank or any Governmental Authority on account of any Lender or Issuing Bank pursuant to
Section 2.12, or (iv) a Lender refuses to consent to an amendment, modification or waiver of this
Agreement for which the consent of the Required Lenders has been obtained, or that, pursuant to
Section 9.08(b), requires the consent of all Lenders or all Lenders with obligations affected (each
such Lender being a “Non-Consenting Lender”), the Guarantor may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon
notice to such Lender or Issuing Bank and the Administrative Agent, require such Lender or Issuing
Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an
assignee that shall assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (w) such assignment, with respect to any Lender’s
interest, shall not conflict with any Applicable Law, (x) the Guarantor shall have received the
prior written consent of the Administrative Agent and the Issuing Banks, (y) the Guarantor or such
assignee shall have paid to the affected Lender or Issuing Bank in immediately available funds an
amount equal to the L/C Disbursements of such Lender or Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or Issuing Bank hereunder (including any
amounts under Section 2.09 and Section 9.05), and (z) in the case of a Non-Consenting Lender, the
assignee shall provide the applicable consent at the time of the assignment pursuant to an
assignment agreement and that may be executed by the Administrative Agent on behalf of such
Non-Consenting Lender and the Guarantor shall require all other Non-Consenting Lenders to assign
their interests, rights and obligations under this Agreement; provided further that, if prior to
any such transfer and assignment the circumstances or event that resulted in such Lender’s or
Issuing Bank’s claim for compensation under Section 2.09 or notice under Section 2.10 or the
amounts paid pursuant to Section 2.12, as the case may be, cease to cause such Lender or Issuing
Bank to suffer increased costs or reductions in amounts received or receivable or reduction in
return on capital, or cease to have the consequences specified in Section 2.10, or cease to result
in amounts being payable under Section 2.12, as the case may be (including as a result of any
action taken by such Lender or Issuing Bank pursuant to paragraph (b) below), or if such Lender or
Issuing Bank shall waive its right to claim further compensation under Section 2.09 in respect of
such circumstances or event or shall withdraw its notice under Section 2.10 or shall waive its
right to further payments under Section 2.12 in respect of such circumstances or event or shall
agree to consent to the applicable proposed amendment, modification or waiver, as the case may be,
then such Lender or Issuing Bank shall not thereafter be required to make any such transfer and
assignment hereunder.
(b) If (i) any Lender or Issuing Bank shall request compensation under Section 2.09, (ii) any
Lender or Issuing Bank delivers a notice described in Section 2.10 or (iii) the Guarantor is
required to pay any additional amount to any Lender or Issuing Bank or any Governmental
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Authority on account of any Lender or Issuing Bank, pursuant to Section 2.12, then such Lender or
Issuing Bank shall use reasonable efforts (which shall not require such Lender or Issuing Bank to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any certificate or document
reasonably requested in writing by the Guarantor or (y) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or affiliates, if such
filing or assignment would reduce its claims for compensation under Section 2.09 or enable it to
withdraw its notice pursuant to Section 2.10 or would reduce amounts payable pursuant to Section
2.12, as the case may be, in the future. The Guarantor hereby agrees to pay all reasonable costs
and expenses incurred by any Lender or Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
Section 2.09. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender or any Issuing Bank or shall impose on such Lender or such
Issuing Bank any other condition affecting this Agreement 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 or
such Issuing Bank of issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable by such Lender or
such Issuing Bank hereunder by an amount deemed by such Lender or such Issuing Bank to be material,
then the Guarantor will pay to such Lender or such Issuing Bank, as the case may be, upon demand
such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank shall have determined that any Change in Law regarding
capital adequacy has or would have the effect of reducing the rate of return on such Lender’s or
Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or participations in Letters of Credit purchased by such
Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a
level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or
Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with
respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank to be material,
then from time to time the Guarantor shall pay to such Lender or Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s
or Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) above shall be delivered to the Guarantor and shall be conclusive absent
manifest error. The Guarantor shall pay such Lender or Issuing Bank the
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amount shown as due on any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction in return on
capital shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such
compensation; provided that the Guarantor shall not be under any obligation to compensate any
Lender or Issuing Bank under paragraph (a) or (b) above with respect to increased costs or
reductions with respect to any period prior to the date that is 90 days prior to such request if
such Lender or Issuing Bank knew or could reasonably have been expected to know of the
circumstances giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to any increased
costs or reductions arising out of the retroactive application of any Change in Law within such
90-day period. The protection of this Section shall be available to each Lender and Issuing Bank
regardless of any possible contention of the invalidity or inapplicability of the law, rule,
regulation, agreement, guideline or other change or condition that shall have occurred or been
imposed.
(e) This Section 2.09 shall not apply to any Change in Law with respect to Taxes, including,
but not limited to, changes in the rate of Taxes pertaining to any particular Lender.
Section 2.10. Change in Legality. (a) Notwithstanding any other provision of this Agreement,
if (i) any Change in Law shall make it unlawful for any Issuing Bank to issue Letters of Credit
denominated in an Alternative Currency, or (ii) there shall have occurred any change in national or
international financial, political or economic conditions (including the imposition of or any
change in exchange controls) or currency exchange rates which would make it impracticable for any
Issuing Bank to issue Letters of Credit denominated in such Alternative Currency, then, by written
notice to the Guarantor and to the Administrative Agent such Issuing Bank may declare that Letters
of Credit will not thereafter be issued in the affected Alternative Currency or Currencies,
whereupon the affected Alternative Currency or Currencies shall be deemed (for the duration of such
unlawfulness and with respect to such Issuing Bank only) not to constitute an Alternative Currency.
(b) For purposes of this Section 2.10, a notice to the Guarantor by any Lender shall be
effective on the date of receipt by the Guarantor.
Section 2.11. Pro Rata Treatment. Except to the extent otherwise expressly provided herein,
(a) L/C Exposure shall be allocated among the Lenders according to their respective Pro Rata
Shares, (b) each reduction of the Total Commitments shall be applied to the Lenders’ respective
Commitments according to their respective Pro Rata Shares before such reduction, (c) each payment
of Fees that is for the benefit or account of the Lenders shall be made to the Lenders according to
their respective Pro Rata Shares, and (d) participations in Letters of Credit, and payments with
respect thereto, shall be allocated to the Lenders in accordance with their respective Pro Rata
Shares at the time of the issuance of each Letter of Credit.
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Section 2.12. Taxes. (a) Any and all payments by or on account of any obligation of the
Guarantor or any Other Applicant hereunder or under any other Facility Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Guarantor or any Other Applicant shall be required by law to deduct any Indemnified Taxes or 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 or such Lender (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the Guarantor or such
Other Applicant shall make such deductions and (iii) the Guarantor or such Other Applicant shall
pay the full amount deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Guarantor shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Guarantor shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment on
account of any obligation of the Guarantor or any Other Applicant hereunder or under any other
Facility Document on the Guarantor’s or any Other Applicant’s behalf (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and
any penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect
thereto, 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 Guarantor by a Lender, or by the Administrative Agent on its behalf or
on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Guarantor or any Other Applicant to a Governmental Authority, the Guarantor 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) Any Foreign Lender (or any participating bank or other entity that would be a Foreign
Lender if it were a Lender) that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Guarantor or any Other Applicant is located, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Guarantor (with a copy to the Administrative Agent) (or, in the case of a
participating bank or other entity, the Foreign Lender from which the related participation was
purchased), at the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the Guarantor as will permit
such payments to be made without withholding or at a reduced rate. In addition, each Foreign
Lender (or participating bank or other entity that would be a Foreign Lender if it were a Lender)
shall deliver substitute forms upon becoming aware of the
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obsolescence or invalidity of any form previously delivered by such Foreign Lender (or
participating bank or other entity) or upon the reasonable request of the Guarantor.
Section 2.13. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Guarantor or any Other Applicant,
or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any L/C Disbursement (other than any
payment made in accordance with the terms of this Agreement) as a result of which the unpaid
principal portion of participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of participations in L/C Disbursements of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face value, and shall promptly
pay to such other Lender the purchase price for, a participation in the L/C Exposure of such other
Lender, so that the aggregate unpaid principal amount of the L/C Exposure and participations in L/C
Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal
amount of L/C Exposure then outstanding as the principal amount of its L/C Exposure prior to such
exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all
L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other
event; provided, however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.13 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustment restored without interest. The Guarantor and each Other
Applicant expressly consents to the foregoing arrangements and agrees that any Lender holding a
participation in a L/C Disbursement deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the
Guarantor and the respective Applicant to such Lender by reason thereof as fully as if such Lender
had made a loan directly to the Guarantor and the respective Applicant in the amount of such
participation.
Section 2.14. Joinder of Applicants. By execution of an Applicant Joinder by a Subsidiary of
the Guarantor and upon acceptance thereof by the Administrative Agent, each in its sole discretion,
and such Person’s satisfaction of all conditions and completion of all deliveries specified in the
Joinder Agreement, this Agreement shall be deemed to be amended so that such Person shall become an
Applicant for all purposes of this Agreement as if an original signatory hereto, and shall be
admitted as an Applicant hereunder, and this Agreement shall be binding for all purposes on such
Person as an Applicant as if an original signatory hereto.
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Article III
Representations and Warranties
The Guarantor and each Other Applicant hereby represent and warrant to the Administrative
Agent, each Issuing Bank and each of the Lenders that:
Section 3.01. Organization; Powers. The Guarantor and each of the Other Applicants (a) (i) is
duly organized, validly existing and, in case such concept exists under the laws of the
jurisdiction of its organization, in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (iii) is qualified to do
business in, and, in case such concept exists under the laws of the jurisdiction of its
organization, is in good standing in, every jurisdiction where such qualification is required,
except where any such failure, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, and (b) has the power and authority to execute, deliver and
perform its obligations under each of the Facility Documents to which it is a party and each other
agreement or instrument contemplated hereby to which it is or will be a party and, in the case of
the Guarantor, to guaranty the obligations of the Other Applicants and, in the case of the
Applicants, to request Letters of Credit hereunder.
Section 3.02. Authorization. The Transactions (a) have been duly authorized by all requisite
corporate and, if required, stockholder action and (b) will not (i) violate (a) any provision of
Applicable Law, or of the certificate or articles of incorporation or other constitutive documents
or by-laws of the Guarantor or any Other Applicant, or (b) any provision of the Existing Credit
Agreement or any other indenture, agreement or other instrument to which the Guarantor or any Other
Applicant is a party or by which any of them or any of their property is or may be bound, (ii) be
in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under the Existing Credit Agreement or any other such
indenture, agreement or other instrument, or (iii) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired by the Guarantor or
any Other Applicant.
Section 3.03. Enforceability. This Agreement has been duly executed and delivered by the
Guarantor and the Other Applicants party hereto and constitutes, and each other Facility Document
when executed and delivered by each Credit Party thereto will constitute, a legal, valid and
binding obligation of such Credit Party enforceable against such Credit Party in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors’ rights generally or by
equitable principles relating to enforceability and subject to any general principles of law
limiting such obligations which are specifically referred to in any legal opinion delivered
pursuant to Article IV of this Agreement.
Section 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in
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connection with the Transactions, except for such as have been made or obtained and are in full
force and effect.
Section 3.05. Financial Statements. The Guarantor has heretofore furnished to the Lenders its
unaudited consolidated balance sheets and statements of income, stockholders’ equity (in the case
of the Guarantor) and cash flows as of and for the fiscal year ended December 31, 2006 and as of
and for the fiscal quarter ended June 30, 2007. Subject to normal year-end audit adjustments,
such financial statements present fairly the financial condition and results of operations and cash
flows of the Guarantor and its consolidated Subsidiaries as of such dates and for such periods,
such balance sheets and the notes thereto disclose all material liabilities, direct or contingent,
of the Guarantor and its consolidated Subsidiaries as of the dates thereof, and such financial
statements were prepared in accordance with GAAP.
Section 3.06. No Material Adverse Change. Since December 31, 2006, no event, change or
condition has occurred that has had, or could reasonably be expected to have, a Material Adverse
Effect.
Section 3.07. Title to Properties; Possession Under Leases. (a) Each of the Guarantor and
each of the Other Applicants has valid title to, or valid leasehold interests in, all its material
properties and assets, except for defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties and assets for their
intended purposes.
(b) The Guarantor and each of the Other Applicants have complied with all material obligations
under all material leases to which it is a party and, to the Guarantor’s and each Other Applicant’s
knowledge, all such leases are in full force and effect.
Section 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
Subsidiaries of the Guarantor and the percentage ownership interest of the Guarantor therein. The
shares of capital stock or other ownership interests so indicated on Schedule 3.08 are fully paid
and nonassessable and as of the Closing Date are owned by the Guarantor, directly or indirectly,
free and clear of all Liens (other than Liens made in connection with the Existing Credit
Agreement).
Section 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule 3.09,
there are not any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of each Other Applicant and the Guarantor,
threatened against or affecting the Guarantor or any Subsidiary of the Guarantor or any business,
property or rights of any such person (i) that involve any Facility Document or the Transactions or
(ii) which could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.
(b) None of the Guarantor or any of its Subsidiaries or any of their respective material
properties or assets is in violation of any law, rule or regulation (including any zoning,
building, Environmental Law, ordinance, code or approval or any building permits), or is in default
with
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respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where
such violation or default could reasonably be expected to result in a Material Adverse Effect.
Section 3.10. Agreements. (a) Neither the Guarantor, nor any of its Subsidiaries is a party
to any agreement or instrument or subject to any corporate restriction that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(b) Neither the Guarantor, nor any of its Subsidiaries is in default in any manner under any
provision of the Existing Credit Agreement or any provision of any other indenture or other
agreement or instrument evidencing Indebtedness, or any other material agreement or instrument to
which it is a party or by which it or any of its properties or assets are or may be bound, where
such default could reasonably be expected to result in a Material Adverse Effect.
Section 3.11. Federal Reserve Regulations. (a) Neither the Guarantor, nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Letter of Credit will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of the Board,
including the Margin Regulations.
Section 3.12. Investment Company Act. Neither the Guarantor nor any Other Applicant is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.
Section 3.13. Use of Letter of Credit. The Applicants will request the issuance of Letters
of Credit for general corporate purposes.
Section 3.14. Tax Returns. The Guarantor and each of its Subsidiaries (a) have filed or
caused to be filed all Federal, state, local and foreign tax returns or materials required to have
been filed by it except for foreign filings the delinquency of which could not reasonably be
expected to have a Material Adverse Effect, and (b) has paid or caused to be paid all taxes due and
payable by it and all material written assessments received by it, except taxes that are being
contested in good faith by appropriate proceedings and for which the Guarantor or such Subsidiary,
as applicable, shall have set aside on its books adequate reserves.
Section 3.15. No Material Misstatements. None of any information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Guarantor or any Other Applicant to
the Administrative Agent or any Lender in connection with the negotiation of any Facility Document
or included therein or delivered pursuant thereto contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit 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 to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or projection, the
Guarantor and each Other Applicant represents only that it acted in good faith and
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utilized reasonable assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
Section 3.16. Employee Benefit Plans. Each of the Guarantor and its ERISA Affiliates is in
compliance in all respects with the applicable provisions of ERISA and the Code and the regulations
and published interpretations thereunder, except where such non-compliance, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. 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 a Material Adverse Effect.
Section 3.17. Environmental Matters. (a) Except as set forth in Schedule 3.17 and except with
respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Guarantor, nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has received notice of
any claim with respect to any Environmental Liability or (iii) knows of any basis for any
Environmental Liability to which it is or reasonably could become subject.
(b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.17 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
Section 3.18. Insurance. The Guarantor and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal industry practice.
Section 3.19. Labor Matters. As of the date hereof and the Closing Date, there are no
strikes, lockouts or slowdowns against the Guarantor or any Subsidiary of the Guarantor pending or,
to the knowledge of the Guarantor and each Other Applicant, threatened. Except with respect to any
violations that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, the hours worked by and payments made to employees of the Guarantor and
the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due from the
Guarantor or any Subsidiary, or for which any claim may be made against the Guarantor 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 Guarantor or such Subsidiary except where
the failure to make or accrue any such payments, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. The consummation of the
Transactions 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 Guarantor or any Subsidiary is
bound.
Section 3.20. Solvency. Immediately following the issuance of each Letter of Credit and after
giving effect to the drawing of each Letter of Credit, (a) the fair value of the assets of each
Credit Party, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent
or
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otherwise; (b) the present fair saleable value of the property of each Credit Party will be greater
than the amount that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (c) each Credit Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured;
and (d) each Credit Party will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
Section 3.21. Subordination of Intercompany Debt. All Indebtedness owed by any Other
Applicant to the Guarantor or another Other Applicant is Subordinated Debt.
Section 3.22. Incorporation by Reference. The Guarantor hereby makes each and all of the
representations and warranties set forth in Article III (including the contents of the related
schedules and exhibits) of the Existing Credit Agreement, which representations and warranties are
incorporated herein by reference in their entirety as if fully set forth herein; provided that, if
the Existing Credit Agreement is terminated or for any reason otherwise ceases to be in full force
and effect, the incorporation of such Article III hereby shall continue, except that it shall be of
such article as it existed in such Existing Credit Agreement immediately prior to the termination
thereof; provided further that, all representations and warranties made for the benefit of the
Administrative Agent and the Lenders under the Existing Letter of Credit Agreement shall be made
for the benefit of the Administrative Agent, the Lenders and the Issuing Banks hereunder.
Article IV
Conditions to Closing and Letters of Credit
The obligations of the Issuing Banks to issue, or amend Letters of Credit (or amend any
Letters of Credit to increase its face amount, extend it or renew it) hereunder are subject to the
satisfaction of the following conditions:
Section 4.01. All Letters of Credit. On the date of each issuance of, and each amendment
increasing the face amount, extension or renewal of, a Letter of Credit (each such event being
called a “Credit Event”):
(a) The applicable Issuing Bank shall have received an Application requesting the
issuance, an amendment increasing the face amount, an extension or a renewal of a Letter of
Credit, as applicable, as required by Section 2.01(b).
(b) The representations and warranties set forth, directly or through incorporation by
reference, in Article III hereof and in each other Facility Document shall be true and
correct in all material respects on and as of the date of such Credit Event with the same
effect as though made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
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(c) The Guarantor and each Other Applicant shall be in compliance with all the terms
and provisions set forth herein and in each other Facility Document on its part to be
observed or performed, and at the time of and immediately after such Credit Event, no Event
of Default or Default shall have occurred and be continuing.
(d) The requesting Applicant shall have executed and delivered (i) this Agreement or
(ii) an Applicant Joinder and such other documents as provided for in the Applicant Joinder
and as may be requested by the Administrative Agent.
(e) No order, judgment or decree of, or any request or directive (whether or not having
the force of law) from any Governmental Authority, or any other applicable law, shall
purport by its terms to enjoin, restrain, prohibit or otherwise prevent the Issuing Bank
from issuing letters of credit generally or the requested Letter of Credit or shall impose
upon such Issuing Bank with respect to that Letter of Credit any restriction, reserve
requirement or other cost or expense that was not applicable, in effect or known to the
Issuing Bank on the Closing Date and that such Issuing Bank in good xxxxx xxxxx materially
adverse to it, except if in the case of costs, expenses and other monetary impositions, the
Guarantor has agreed to pay or to indemnify such Issuing Bank for such impositions pursuant
to the terms and conditions of this Agreement.
(f) In the case of an Alternative Currency Letter of Credit, there shall not have
occurred any change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the opinion of the
Administrative Agent or the Issuing Bank make it impracticable for such Letter of Credit to
be denominated in the relevant Alternative Currency.
Each Credit Event shall be deemed to constitute a representation and warranty by the Guarantor
and each Other Applicant on the date of such Credit Event as to the matters specified in paragraphs
(b) and (c) of this Section 4.01.
Section 4.02. Closing Date. The obligations of the Issuing Banks to issue Letters of Credit
(other than the Existing Letters of Credit) on or after the Closing Date are subject to the
satisfaction of the following conditions which shall be satisfied on or before the Closing Date:
(a) This Agreement shall have been duly executed by the parties hereto and delivered to
the Administrative Agent and shall be in full force and effect.
(b) The Administrative Agent shall have received, on behalf of itself, the Lenders and
the Issuing Banks, a favorable written opinion of (i) Xxxx X. Xxxxx, Vice President -
Strategic Transactions Counsel of the Guarantor, substantially to the effect set forth in
Exhibit D-1, (ii) with respect to each Other Applicant that is a Domestic Subsidiary,
counsel, acceptable to the Administrative Agent, for such Subsidiary substantially to the
effect set forth in Exhibit D-2, and (iii) with respect to each Other Applicant that is a
Foreign Subsidiary, counsel, acceptable to the Administrative Agent, for such Subsidiary
substantially to the effect set forth in Exhibit D-3, in each case (a) dated the Closing
Date, (b) addressed to the Issuing Banks, the Administrative Agent
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and the Lenders, and (c) covering such other matters relating to the Facility Documents and
the Transactions as the Administrative Agent shall reasonably request, and the Guarantor and
each respective Other Applicant hereby request such counsel to deliver such opinions.
(c) All legal matters incident to this Agreement, the extensions of credit hereunder
and the other Facility Documents shall be reasonably satisfactory to the Lenders, to the
Issuing Banks and to the Administrative Agent.
(d) The Administrative Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of each Credit Party, certified
(to the extent relevant) as of a recent date by the Secretary of State of the state of its
organization, and, in case such concept exists under the laws of the jurisdiction of its
organization, a certificate as to the good standing of each Credit Party as of a recent
date, from such Secretary of State, and to the extent generally available, a certificate or
other evidence of good standing as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such jurisdictions; (ii) a certificate of
the Secretary or Assistant Secretary (or similar officer) of each Credit Party dated the
Closing Date and certifying (a) that attached thereto is a true and complete copy of the
by-laws or articles of association of such Credit Party as in effect on the Closing Date and
at all times since a date prior to the date of the resolutions described in clause (b)
below, (b) that attached thereto is a true and complete copy of resolutions duly adopted by
the Board of Directors of such Credit Party authorizing the execution, delivery and
performance of the Facility Documents to which such person is a party and, in the case of
the Guarantor, the guaranty hereunder, and, in the case of the Applicants, the Letter of
Credit request hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (c) that the certificate or articles of
incorporation or other charter document of such Credit Party have not been amended since the
date of the last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above or the trade register extract provided by the chamber of
commerce, and (d) as to the incumbency and specimen signature of each officer executing any
Facility Document or any other document delivered in connection herewith on behalf of such
Credit Party; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary (or similar officer) executing the
certificate pursuant to (ii) above; and (iv) such other documents as the Lenders, the
Issuing Banks or the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received a certificate, dated the Closing Date
and signed by a Financial Officer of the Guarantor, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section 4.01, in form and
substance acceptable to the Administrative Agent.
(f) The Administrative Agent shall have received all Fees and other amounts due and
payable on or prior to the Closing Date, including, to the extent invoiced at least 1
Business Day prior to the Closing Date, reimbursement or payment of all out-of-pocket
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expenses required to be reimbursed or paid hereunder or under any other Facility Document.
(g) The Administrative Agent shall have received a solvency certificate for the
Guarantor, certified by a Financial Officer of the Guarantor, in form and substance
acceptable to the Administrative Agent.
(h) The Administrative Agent shall have received (i) financial projections for the
Guarantor and its Subsidiaries, (ii) consolidated unaudited annual financial statements for
each Other Applicant party hereto on the closing date and its Subsidiaries for the fiscal
year ending December 31, 2005, and (iii) consolidated annual financial statements for the
Guarantor and its Subsidiaries for the fiscal years ending December 31, 2004 and December
31, 2005, and all such projections and financial statements shall be in form and substance
acceptable to the Administrative Agent.
(i) The Administrative Agent shall have received for each Credit Party all
documentation and other information required by any Governmental Authority under applicable
anti-money laundering rules and regulations, including the Patriot Act.
(j) The Issuing Bank shall have received the MaxTrad Agreement, the Electronic Banking
Terms and Conditions, Letters of Indemnity, and such other operational agreements as the
Issuing Bank may reasonably request (collectively, the “Operational Agreements”) in each
instance duly executed by the appropriate Credit Parties.
(k) The Guarantor and each Other Applicant shall have entered into a subordination
agreement in form and substance acceptable to the Administrative Agent causing all
Indebtedness owed by any Other Applicant to the Guarantor or another Other Applicant to
constitute Subordinated Debt.
(l) There shall be no litigation or administrative proceeding that could reasonably be
expected to have a Material Adverse Effect.
Article V
Affirmative Covenants
The Guarantor and each Other Applicant covenants and agree that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and all Fees and all other
expenses or amounts payable under any Facility Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, the Guarantor and each Other Applicant will, and will cause each of its
Subsidiaries to:
Section 5.01. Existence; Businesses and Properties. (a) Do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence, except as
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otherwise expressly permitted under Section 6.05 of the Existing Credit Agreement and except, with
respect to any Subsidiary, where the failure to do so could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names material to the conduct of its business and its Subsidiaries
taken as a whole; maintain and operate such business in substantially the manner in which it is
presently conducted and operated; comply in all material respects with all applicable laws, rules,
regulations (including (i) all Environmental Laws and (ii) any zoning, building, ordinance, code or
approval or any building permits or any restrictions of record or agreements affecting the real
property owned by such person) and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted, except where the failure to do so could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect; and at all times maintain
and preserve all property material to the conduct of such business and keep such property in good
repair, working order and condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted at all times, except
where the failure to do so could not reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
Section 5.02. Insurance. (a) Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such extent and against
such risks, including fire and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned, occupied or
controlled by it; and maintain such other insurance as may be required by law.
Section 5.03. Obligations and Taxes. Pay its Indebtedness promptly and in accordance with
their terms and pay and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or in respect of its property, before the
same shall become delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be required with respect to
any such tax, assessment, charge, levy or claim so long as (a) the validity or amount thereof shall
be contested in good faith by appropriate proceedings, (b) the Guarantor or such Other Applicant
shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP,
and (c) such contest operates to suspend collection of the contested obligation, tax, assessment or
charge and enforcement of a Lien.
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Section 5.04. Guarantor Financial Statements, Reports, etc. In the case of the Guarantor,
furnish to the Administrative Agent:
(a) within 100 days after the end of each fiscal year commencing with the Guarantor’s
fiscal year ending December 31, 2007, its consolidated balance sheet and related statements
of income, stockholders’ equity and cash flows showing the financial condition of the
Guarantor and its consolidated Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Subsidiaries during such year, all
audited by PricewaterhouseCoopers LLP or other independent public accountants of recognized
national standing and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated financial statements
fairly present the financial condition and results of operations of the Guarantor and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 50 days after the end of each of the first three fiscal quarters of each
fiscal year of the Guarantor, its consolidated balance sheet and related statements of
income, stockholders’ equity and cash flows showing the financial condition of the Guarantor
and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such fiscal quarter and the
then elapsed portion of the fiscal year, compared with the consolidated budget for such
fiscal quarter (to the extent a budget was required for such period under Section 5.04(d))
as well as the results of its operations and the operations of its Subsidiaries in the
corresponding quarter from the prior fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of operations of the
Guarantor and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial
Officer (in the case of paragraph (b)) opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to compliance with
financial maintenance covenants and disclaim responsibility for legal interpretations) and
certifying that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto;
(d) unless the Guarantor has Investment Grade Ratings, at least 10 days prior to the
commencement of each fiscal year of the Guarantor, a detailed consolidated budget for such
fiscal year (including a projected consolidated balance sheet and related statements of
projected operations and cash flow as of the end of and for each quarter of such fiscal year
and as of the end of and for such fiscal year and describing the assumptions used for
purposes of preparing such budget) and, promptly when available, any significant revisions
of such budget;
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(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Guarantor or any Subsidiary with
the Securities and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(f) promptly after the receipt thereof by the Guarantor or any of its Subsidiaries, a
copy of any final “management letter” received by any such person from its certified public
accountants and the management’s response thereto; and
(g) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of the Guarantor, or its compliance with the terms
of any Facility Document, as the Administrative Agent or any Lender may reasonably request.
Section 5.05. Other Applicant Financial Statements, Reports, etc. In the case of each Other
Applicant, furnish to the Administrative Agent:
(a) Promptly after receipt thereof, and in any event within 30 days of providing the
same to the applicable Governmental Authority, each Other Applicant’s consolidated balance
sheet and related statements of income, stockholders’ equity and cash flows showing the
financial condition of such Other Applicant and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the operations of such
Subsidiaries during such fiscal year, all certified by one of its Financial Officers as
fairly presenting the financial condition and results of operations of such Other Applicant
and its consolidated Subsidiaries on a consolidated basis in accordance with relevant law
and standard and customary practice;
(b) promptly after the receipt thereof by such Other Applicant, a copy of any final
“management letter” received by any such person from its certified public accountants and
the management’s response thereto; and
(c) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of such Other Applicant, or compliance with the
terms of any Facility Document, as the Administrative Agent or any Lender may reasonably
request.
Section 5.06. Litigation and Other Notices. Furnish to the Administrative Agent, each Issuing
Bank and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or 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 Guarantor or any of its Affiliates or
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any Other Applicant that could reasonably be expected to result in a Material Adverse
Effect;
(c) 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
Guarantor and its Subsidiaries in an aggregate amount exceeding $10,000,000;
(d) any notice from S&P or Xxxxx’x indicating the possibility of an adverse change in
the credit ratings applicable to the Guarantor or any of its Indebtedness assigned by S&P or
Xxxxx’x and promptly after the Guarantor obtains knowledge of any change in the rating
established by S&P or Xxxxx’x, as applicable, with respect to the Debt Rating, a notice of
such change, which notice shall specify the new rating, the date on which such change was
publicly announced, and such other information with respect to such change as the
Administrative Agent may reasonably request;
(e) any development that has resulted in, or could reasonably be expected to result in,
a Material Adverse Effect.
Section 5.07. Information Regarding Names and Organization. (a) Furnish to the Administrative
Agent prompt written notice of any change (i) in any Credit Party’s corporate name or in any trade
name used to identify it in the conduct of its business or in the ownership of its properties, (ii)
jurisdiction of organization of any Credit Party, (iii) in any Credit Party’s identity or corporate
structure or (iv) in any Credit Party’s Federal Taxpayer Identification Number.
Section 5.08. Maintaining Records; Access to Properties and Inspections. Keep proper books of
record and account in which full, true and correct entries in conformity with GAAP and all
requirements of law are made of all dealings and transactions in relation to its business and
activities. Each Credit Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit and inspect the
financial records and the properties of the and Guarantor or any of its Subsidiaries at reasonable
times and as often as reasonably requested and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances and condition of the Guarantor or any of its Subsidiaries with the
officers thereof and independent accountants therefor; provided that any such visit or inspection
does not interfere with the normal operation of such business conducted at the properties.
Section 5.09. Use of Proceeds. The Applicants will request the issuance of Letters of Credit
for contingent obligations (including obligations as an account party under any letter of credit)
solely in respect of surety and performance bonds, bank guarantees and similar obligations in
respect of contractual obligations of the Applicants, provided such obligations are incurred in the
ordinary course of business.
Section 5.10. Further Assurances. Execute and/or deliver any and all further documents,
agreements and instruments, and take (or authorize) all further action (including delivery local
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counsel opinions) that may be required under applicable law in order to effectuate the transactions
contemplated by the Facility Documents.
Section 5.11. Incorporation by Reference. The Guarantor shall comply with, abide by and
otherwise observe all covenants set forth in Article V (including the contents of the related
schedules and exhibits) of the Existing Credit Agreement, which covenants are incorporated herein
by reference in their entirety as if fully set forth herein; provided that, if the Existing Credit
Agreement is terminated or for any reason otherwise ceases to be in full force and effect, the
incorporation of such Article V hereby shall continue, except that it shall be of such article as
it existed in such Existing Credit Agreement immediately prior to the termination thereof; provided
further that, any covenant made for the benefit of the Administrative Agent and Lenders under the
Existing Credit Agreement shall be made for the benefit of the Administrative Agent, the Lenders
and the Issuing Banks hereunder.
Article VI
Negative Covenants
The Guarantor and each Other Applicant covenant and agree that, so long as this Agreement
shall remain in effect and until the Commitments have been terminated and all Fees and all other
expenses or amounts payable under any Facility Document have been paid in full and all Letters of
Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in
full, the Guarantor and each Other Applicant will not, and will not cause or permit any of its
Subsidiaries to:
Section 6.01. Contracts with Affiliates. No Other Applicant shall, nor shall it permit any of
its Subsidiaries to, enter into any contract, agreement or business arrangement with any of its
Affiliates (other than Wholly-owned Subsidiaries) on terms and conditions which are less favorable
to such Guarantor or such Other Applicant than would be usual and customary in similar contracts,
agreements or business arrangements between persons not affiliated with each other.
Section 6.02. Change in the Nature of Business. No Other Applicant shall, nor shall it permit
any of its Subsidiaries to, engage in any business or activity if as a result the general nature of
the business of such Other Applicant or such Subsidiary would be changed in any material respect
from the general nature of the business engaged in by it as of the Closing Date.
Section 6.03. Indebtedness. Each Other Applicant will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except;
(a) the Obligations of such Other Applicant and its Subsidiaries hereunder;
(b) intercompany Indebtedness among the Other Applicants and their Subsidiaries to the
extent permitted by Section 6.06;
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(c) purchase money Indebtedness and Capital Lease Obligations of the Other Applicants
and their Subsidiaries in an amount permitted by the Existing Credit Agreement;
(d) Subordinated Debt; and
(e) unsecured Indebtedness of the Other Applicants and their Subsidiaries not otherwise
permitted by this Section in an amount not to exceed €25,000,000 in the aggregate at any
one time outstanding.
Section 6.04. Liens. Each Other Applicant will not, and will not permit any of its
Subsidiaries to, create, incur or suffer to exist any Lien on any of its property; provided that
the foregoing shall not prevent the following:
(a) inchoate Liens for the payment of taxes which are not yet due and payable;
(b) Liens arising by statute in connection with worker’s compensation, unemployment
insurance, old age benefits, social security obligations, taxes, assessments, statutory
obligations or other similar charges (other than Liens arising under ERISA), good faith cash
deposits in connection with tenders, contracts or leases to which any Other Applicant or any
Subsidiary is a party or other cash deposits required to be made in the ordinary course of
business, provided in each case that the obligation is not for borrowed money and that the
obligation secured is not overdue or, if overdue, is being contested in good faith by
appropriate proceedings which prevent enforcement of the matter under contest and adequate
reserves have been established therefor;
(c) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens
arising in the ordinary course of business with respect to obligations which are not due or
which are being contested in good faith by appropriate proceedings which prevent enforcement
of the matter under contest;
(d) Liens created by or pursuant to the Existing Credit Agreement and related
documents;
(e) Liens on property of any Other Applicant or any Subsidiary created solely for the
purpose of securing indebtedness permitted by Section 6.03(c) hereof, representing or
incurred to finance the purchase price of property, provided that no such Lien shall extend
to or cover other property of such Other Applicant or such Subsidiary other than the
respective property so acquired, and the principal amount of indebtedness secured by any
such Lien shall at no time exceed the purchase price of such property, as reduced by
repayments of principal thereon;
(f) easements, rights-of-way, restrictions, and other similar encumbrances against real
property incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not materially detract from the value of the
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property subject thereto or materially interfere with the ordinary conduct of the business
of an Other Applicant or any Subsidiary of an Other Applicant; and
(g) any Liens created pursuant to the general conditions of a bank operating in the
Netherlands based on the general conditions drawn up by the Netherlands Bankers’ Association
(Nederlandse Vereniging xxx Xxxxxx) and the Consumers Union (Consumentenbond).
Section 6.05. Consolidation, Merger, Sale of Assets, etc. Each Other Applicant will not wind
up, liquidate or dissolve its affairs or agree to any merger or consolidation, or convey, sell,
lease or otherwise dispose of all or any part of its property, including any disposition as part of
any sale-leaseback transactions except that this Section shall not prevent:
(a) a merger or consolidation by any Other Applicant into a different Other Applicant;
(b) the sale and lease of inventory and equipment in the ordinary course of business;
(c) the sale, transfer or other disposition of any tangible personal property that, in
the reasonable judgment of any Other Applicant, has become uneconomic, obsolete or worn out;
(d) the sale, transfer, lease, contribution or other disposition of property, stock,
ownership interests or other assets of any Other Applicants and their Subsidiaries to one
another; and
(e) the sale, transfer, lease, or other disposition of property of any Other Applicant
or any Subsidiary (including any disposition of property as part of a sale and leaseback
transaction) aggregating for the Other Applicants and their Subsidiaries not more than
€25,000,000 during any fiscal year of the Guarantor.
Section 6.06. Advances, Investments and Loans. Each Other Applicant will not directly or
indirectly, make loans or advances to or make, retain or have outstanding any investments (whether
through purchase of equity interests or obligations or otherwise) in, any person or enter into any
partnerships or joint ventures, or purchase or own a futures contract or otherwise become liable
for the purchase or sale of currency or other commodities at a future date in the nature of a
futures contract, except that this Section shall not prevent:
(a) receivables created in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms;
(b) investments in Permitted Investments;
(c) investments (including debt obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of delinquent
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obligations of, and other disputes with, customers and suppliers arising in the ordinary
course of business;
(d) Each Other Applicant’s investments from time to time in its Subsidiaries, and
investments made from time to time by an Other Applicant’s Subsidiary in or more of its
Subsidiaries;
(e) intercompany advances made from time to time from any Other Applicant to any one or
more Wholly-owned Subsidiaries in the ordinary course of business;
(f) Permitted Acquisitions; and
(g) other investments, loans and advances in addition to those otherwise permitted by
this Section in an amount not to exceed €25,000,000 during any fiscal year of the
Guarantor.
Section 6.07. Restricted Payments. Each Other Applicant shall not, nor shall it permit any of
its Subsidiaries to, (i) declare or pay any dividends on or make any other distributions in respect
of any class or series of its equity interests or (ii) directly or indirectly purchase, redeem, or
otherwise acquire or retire any of its equity interests or any warrants, options, or similar
instruments to acquire the same (all such payments are referred to herein as “Restricted
Payments”); provided, however, that the foregoing shall not operate to prevent the making of:
(i) dividends or distributions by any Wholly-owned Subsidiary of any Other Applicant to
its parent corporation;
(ii) dividends or distributions by any Subsidiary, which is not a Wholly-owned
Subsidiary, of any Other Applicant to its parent corporation, so long as, with respect to
each such dividend or distribution no Default or Event of Default exists, or shall exist
after giving effect to the proposed dividend or distribution, and, when taken together with
all other dividends and distributions permitted by this clause (ii), the aggregate amount of
such dividends and distributions does not exceed €25,000,000 during any fiscal year of
the Guarantor;
(iii) dividends or distributions by any Other Applicant to its parent corporation, so
long as:
(x) with respect to each such dividend or distribution no Default or Event of
Default exists, or shall exist after giving effect to the proposed dividend or
distribution, and, when taken together with all other dividends and distributions
permitted by this clause (iii), the aggregate amount of such dividends and
distributions does not exceed €25,000,000 during any fiscal year of the
Guarantor; and
(y) the Guarantor causes all such amounts paid as dividends and distributions
permitted by this clause (iii) to be promptly re-distributed by the
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Subsidiary or Subsidiaries who receive such amounts until such amounts have been
received by the Guarantor and the Guarantor owns such amounts free and clear of any
claim by any Subsidiaries; and
(iv) dividends or distributions in the form of Subordinated Debt payable by any Other
Applicant to its parent corporation, so long as:
(x) with respect to each such dividend or distribution, and payments made
thereon, no Default or Event of Default exists, or shall exist after giving effect
to the proposed dividend, distribution or payment; and
(y) the Guarantor causes all such amounts paid on Subordinated Debt permitted
by this clause (iv) to be promptly re-distributed by the Subsidiary or Subsidiaries
who receive such amounts until such amounts have been received by the Guarantor and
the Guarantor owns such amounts free and clear of any claim by any Subsidiaries.
Section 6.08. Limitation on Restrictions. Each Other Applicant will not, and it will not
permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or other equity interests owned by
any Applicant or any other Subsidiary, (b) pay or repay any Indebtedness owed to any Other
Applicant or any other Subsidiary, (c) make loans or advances to any Other Applicant or any other
Subsidiary, (d) transfer any of its property to any Other Applicant or any other Subsidiary, or (e)
encumber or pledge any of its assets to or for the benefit of the Administrative Agent.
Section 6.09. OFAC. The Guarantor and each Other Applicant will not, and will not permit any
of its Subsidiaries to, (i) become a person whose property or interests in property are blocked or
subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Party and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism
(66 Fed. Reg. 49079(2001)), (ii) engage in any dealings or transactions prohibited by Section 2 of
such executive order, or be otherwise associated with any such person in any manner violative of
Section 2, and (iii) become a person on the list of Specially Designated Nationals and Blocked
Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order.
Section 6.10. Net Worth. Each Other Applicant shall at all times maintain Net Worth not less
than €1.00, $1.00 or the Dollar Equivalent thereof, as applicable.
Section 6.11. Subordinated Debt. No Other Applicant shall (a) make any voluntary prepayment
of Subordinated Debt or effect any voluntary redemption thereof, or (b) make any payment on account
of Subordinated Debt which is prohibited under the terms of any instrument or agreement
subordinating the same to the Obligations.
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The Guarantor shall not, nor shall any Other Applicant, without the prior written consent of
the Administrative Agent, agree to any amendment, modification or supplement to the Subordinated
Debt or the legal documents governing the terms thereof (including, without limitation, the terms
of any subordination agreement relating thereto) the effect of which is to (i) increase the maximum
principal amount of the Subordinated Debt (unless such increase does not increase the amount of
cash interest expense or other debt service associated with the Subordinated Debt payable prior to
repayment in full of the Obligations), (ii) increase the rate of interest or any fees or premium
payable on any of the Subordinated Debt (unless such increase does not increase the amount of cash
interest expense or other debt service associated with the Subordinated Debt payable prior to
repayment in full of the Obligations), (iii) change any date upon which any payments of principal
or interest on the Subordinated Debt are due to an earlier date, (iv) add or make more restrictive
any event of default or any covenant with respect to the Subordinated Debt, (v) change the final
maturity date of any Subordinated Debt to a date that is earlier than the date that is 120 days
after the Termination Date, (vi) take any liens or security interests in assets of any Other
Applicant or any Subsidiary, (vii) alter the subordination provisions with respect to any
Subordinated Debt, including, without limitation, subordinating the Subordinated Debt to any other
debt, (viii) change any redemption or prepayment provisions of the Subordinated Debt to an earlier
date or add any additional events requiring such redemption or prepayment, or (ix) change or amend
any other term of the legal documents governing the terms of the Subordinated Debt (including,
without limitation, the terms of any subordination agreement relating thereto) if such change or
amendment would result in an Event of Default.
Section 6.12. Incorporation by Reference. The Guarantor shall comply with, abide by and
otherwise observe all covenants set forth in Article VI (including the contents of the related
schedules and exhibits) of the Existing Credit Agreement, which covenants are incorporated herein
by reference in their entirety as if fully set forth herein; provided that, if the Existing Credit
Agreement is terminated or for any reason otherwise ceases to be in full force and effect, the
incorporation of such Article VI hereby shall continue, except that it shall be of such article as
it existed in such Existing Credit Agreement immediately prior to the termination thereof; provided
further that, any covenant made for the benefit of the Administrative Agent and Lenders under the
Existing Credit Agreement shall be made for the benefit of the Administrative Agent, the Lenders
and the Issuing Banks hereunder.
Article VII
Events of Default
In case of the happening of any of the following events (“Events of Default”):
(a) any representation or warranty made or deemed made in or in connection with any
Facility Document or the issuances of Letters of Credit hereunder, or any representation,
warranty, statement or information contained in any report, certificate, financial statement
or other instrument furnished in connection with or pursuant to any Facility Document, shall
prove to have been false or misleading in any material respect when so made, deemed made or
furnished;
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(b) default shall be made in the reimbursement with respect to any L/C Disbursement
when and as the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any Fee or any other Obligation (other than
an amount referred to in (b) above) due under any Facility Document, when and as the same
shall become due and payable, and such default shall continue unremedied for a period of
five Business Days;
(d) default shall be made in the due observance or performance by the Guarantor or any
Other Applicant of any covenant, condition or agreement contained in Section 5.01(a),
Section 5.04, Section 5.05, Section 5.09 or Section 5.11 or in Article VI;
(e) default shall be made in the due observance or performance by the Guarantor or any
Other Applicant of any covenant, condition or agreement contained in any Facility Document
(other than those specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent to the
Guarantor;
(f) the Guarantor or any Other Applicant shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Material Indebtedness when and as the
same shall become due and payable (after giving effect to any applicable grace period), or
(ii) fail to observe or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such Indebtedness if the effect
of any failure referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf to cause, such Indebtedness
to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the Guarantor or
any Other Applicant, or of a substantial part of the property or assets of the Guarantor or
an Other Applicant under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Guarantor or any Other Applicant or for a
substantial part of the property or assets of the Guarantor or any Other Applicant or (iii)
the winding-up or liquidation of the Guarantor or any Other Applicant; and such proceeding
or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(h) the Guarantor or any Other Applicant shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any petition
described
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in (g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Guarantor or any Other
Applicant or for a substantial part of the property or assets of the Guarantor or any Other
Applicant, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail generally to pay its
debts as they become due, (vii) take any action for the purpose of effecting any of the
foregoing, or (viii) in relation to any procedure or step taken in the Netherlands:
(A) commence bankruptcy (failissemnet), supension of payments (surseance van
betaling), emergency procedure (noodregeling) or any other procedure having the
effect that the Applicant to which it applies loses the free management or ability
to dispose of its property (irrespective of whether that procedure is provisional or
final); or
(B) commence dissolution (ontbinding) or any other procedure having the effect
that the Applicant to which it applies ceases to exist.
(i) one or more judgments for the payment of money in an aggregate amount in excess of
$10,000,000 shall be rendered against the Guarantor, any Other Applicant or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Guarantor or any Other Applicant
to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the reasonable opinion of the Required
Lenders, when taken together with all other such ERISA Events, could reasonably be expected
to result in a Material Adverse Effect;
(k) Article X of this Agreement for any reason shall cease to be in full force and
effect (other than in accordance with its terms), or the Guarantor shall deny in writing
that it has any further liability under such Article (other than as a result of the
discharge of the Guarantor in accordance with the terms of the Facility Documents);
(l) there shall be an Event of Default under, and as defined in, the Existing Credit
Agreement;
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Guarantor described
in paragraph (g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Guarantor, take either or both of the following actions, at the same or
different times:
(i) terminate forthwith the Commitments, and
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(ii) declare any unpaid accrued Fees and all other liabilities of the Guarantor
and each Other Applicant accrued hereunder and under any other Facility Document to
be forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Guarantor and
each Other Applicant, anything contained herein or in any other Facility Document to
the contrary notwithstanding;
and in any event with respect to the Guarantor described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and any unpaid accrued Fees and all other
liabilities of the Guarantor and the Other Applicants accrued hereunder (including under
Section 2.01(l)) and under any other Facility Document, shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind, all of which
are hereby expressly waived by the Guarantor and the Other Applicants, anything contained
herein or in any other Facility Document to the contrary notwithstanding.
Article VIII
The Administrative Agent
Section 8.01. Appointment. (a) Each Lender and Issuing Bank hereby irrevocably (subject to
Section 8.03) appoints ABN AMRO Bank N.V. to act as Administrative Agent on behalf of the Lenders
and the Issuing Banks. Each of the Lenders and each assignee of any such Lender hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of such Lender or assignee or
Issuing Bank and to exercise such powers as are specifically delegated to the Administrative Agent
by the terms and provisions hereof and of the other Facility Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and the Issuing Banks, without hereby limiting any implied authority, (i)
to receive on behalf of the Lenders and the Issuing Banks all payments in respect of L/C
Disbursements (except as otherwise specified in this Agreement) and all other amounts due to the
Lenders and Issuing Banks hereunder, and promptly to distribute to each Lender or Issuing Bank its
proper share of each payment so received; (ii) to give notice on behalf of each of the Lenders to
each Other Applicant and the Guarantor of any Event of Default specified in this Agreement of which
the Administrative Agent has actual knowledge; and (iii) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Guarantor or any Other Applicant
pursuant to this Agreement or the other Facility Documents as received by the Administrative Agent.
Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any
other Facility Document, the Administrative Agent shall not have any duties or responsibilities
except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Facility Document or otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement
with reference to the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable law. Instead,
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such term is used merely as a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties. The Administrative Agent
shall have the continuing right, for purposes hereof, at any time and from time to time to
designate one or more of the Lenders (and/or its or their Affiliates) as “syndication agents”,
“documentation agents”, “arrangers” or other designations for purposes hereto, but such designation
shall have no additional powers, duties or responsibilities as a result thereof.
(b) The Issuing Banks shall act on behalf of the Lenders with respect to any Letters of Credit
issued by them and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for such Issuing Bank
with respect thereto; provided, however, that the Issuing Banks shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article VIII with respect to any acts
taken or omissions suffered by an Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term “Administrative Agent” as used in this Article VIII
included Issuing Banks with respect to such acts or omissions and (ii) as additionally provided in
this Agreement with respect to Issuing Banks.
Section 8.02. Liability of Administrative Agent. Neither the Administrative Agent nor any of
its respective directors, officers, employees, agents, trustees, attorneys, Affiliates or advisors
shall be liable as such for any action taken or omitted by any of them except for its or his own
gross negligence or willful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or observance by the
Guarantor or any Other Applicant of any of the terms, conditions, covenants or agreements contained
in any Facility Document. The Administrative Agent shall not be responsible to the Lenders for the
due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any
other Facility Documents, instruments or agreements. The Administrative Agent shall in all cases
be fully protected in acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The
Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Administrative Agent nor any of its
respective directors, officers, employees or agents shall have any responsibility to the Guarantor
or any Other Applicant on account of the failure of or delay in performance or breach by any Lender
or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of
the failure of or delay in performance or breach by any other Lender or Issuing Bank or the
Guarantor or any Other Applicant of any of their respective obligations hereunder or under any
other Facility Document or in connection herewith or therewith. The Administrative Agent may
execute any and all duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder
and shall not be liable for any action taken or suffered in good faith by it in accordance with the
advice of such counsel.
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Section 8.03. Resignation and Replacement. Subject to the appointment and acceptance of a
successor Administrative Agent as provided below, the Administrative Agent may resign at any time
by notifying the Issuing Banks, the Lenders and the Guarantor. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor acceptable to the Guarantor, such
consent not to be unreasonably withheld; provided, however, that the consent of the Guarantor shall
not be required to any such appointment during the continuance of any Event of Default. If no
successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in the United States, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent’s resignation hereunder, the provisions of
this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent. Any resignation by
Administrative Agent pursuant to this Section 8.03 shall constitute the concurrent resignation of
such entity as an Issuing Bank, provided that any successor Administrative Agent appointed pursuant
to this Section 8.03 shall, upon acceptance of such appointment, become, if the Administrative
Agent was the sole Issuing Bank hereunder, a successor Issuing Bank.
Section 8.04. Administrative Agent Business. The Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business with the Guarantor
or any Other Applicant or other Affiliate thereof as if it were not an Administrative Agent.
Section 8.05. Indemnification of Administrative Agent. Each Lender agrees (a) to reimburse
the Administrative Agent, on demand, in the amount of its Pro Rata Share of any expenses incurred
for the benefit of the Lenders by the Administrative Agent, including reasonable counsel fees and
disbursements and compensation of Administrative Agent and employees paid for services rendered on
behalf of the Lenders, that shall not have been reimbursed by the Guarantor or any Other Applicant
and (b) to indemnify and hold harmless the Administrative Agent and any of its directors, officers,
employees, agents or Affiliates on demand, in the amount of such Pro Rata Share, from and against
any and all liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it or any of them in any way relating to or arising out of this Agreement,
credit extended or any action taken or omitted by it or any of them under this Agreement or any
other Facility Document, to the extent the same shall not have been reimbursed by the Guarantor or
any Other Applicant, provided that no Lender shall be liable to the Administrative Agent or any
such other indemnified person for any portion of such liabilities, taxes, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements that is determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Administrative Agent or any of its directors,
officers, employees agents or Affiliates. Each Lender agrees to reimburse each Issuing Bank and
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its directors, officers, employees, agents and Affiliates, in each case, to the same extent and
subject to the same limitations as provided above for the Administrative Agent. In addition, each
Lender shall promptly return to the Administrative Agent the amount of any payment made to such
Lender in anticipation of receipt of amounts due from the Guarantor or any Other Applicant in the
event such payment is not made by the Guarantor or such Other Applicant as and when due (which
amounts shall be returned to the Administrative Agent with interest at the customary rate set by
the Administrative Agent for the correction of errors among banks).
Section 8.06. No Reliance. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, any other Lender or any Issuing Bank and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, any other Lender or any Issuing Bank and based on
such documents and information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement or any other
Facility Document, any related agreement or any document furnished hereunder or thereunder.
Section 8.07. Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of fees required to be paid to the Administrative Agent for the account of
the Lenders, unless the Administrative Agent shall have received written notice from a Lender, an
Issuing Bank or the Guarantor referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default.” The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such
action with respect to such Default or Event of Default as may be directed by the Required Lenders;
provided, however, that unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall deem advisable or
in the best interest of the Lenders.
Article IX
Miscellaneous
Section 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Guarantor or any Other Applicant, to the Guarantor at 0000 X. X’Xxxxxx
Xxxx., Xxxxx 0000, Xxxxxx, XX 00000, Attention of Xx. Xxxx Xxxxxxx (Telecopy No. (000)
000-0000);
(b) if to the Administrative Agent:
ABN AMRO Bank N.V.
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Agency Management
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, First Vice President — Head
Telecopy No.: (000) 000-0000
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, First Vice President — Head
Telecopy No.: (000) 000-0000
and
ABN AMRO Bank N.V.
Agency Management
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
Telecopy No.: (000) 000-0000
Agency Management
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
Telecopy No.: (000) 000-0000
(c) if to a Lender, to it at its address (or telecopy number) on file with
Administrative Agent.
All notices and other communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed)
to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 9.01.
The Guarantor and each Other Applicant hereby acknowledge that (a) the Administrative Agent
will make available to the Lenders and each Issuing Bank materials and/or information provided by
or on behalf of the Guarantor and each Other Applicant hereunder (collectively, “Company
Materials”) by posting the Company Materials on IntraLinks 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 the Guarantor and each Other
Applicant or its securities) (each, a “Public Lender”). Guarantor and each Other Applicant hereby
agree that (w) all Company Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the
Guarantor and each Other Applicant shall be deemed to have authorized the Administrative Agent,
Issuing Banks and the Lenders to treat such Company Materials as not containing any material
non-public information with respect to the Guarantor and each Applicant or their respective
securities for purposes of United States federal and state securities laws (provided, however, that
to the extent such Company Materials constitute Information (as defined in Section 9.17), they
shall be treated as set forth in Section 9.17); (y) all Company Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor”; and
(z) the Administrative Agent shall be entitled to treat any Company Materials that are not marked
“PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public
Investor.” Notwithstanding
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the foregoing, neither the Guarantor nor any Other Applicant shall be under any obligation to
xxxx any Company Materials “PUBLIC.”
Notices and other communications to the Lenders and any Issuing Bank hereunder may be
delivered or furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or any Issuing Bank pursuant to Article II if such Lender
or Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent or the
Guarantor may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.
The Platform is provided “as is” and “as available.” The Agent Parties do not warrant the
accuracy or completeness of the Company Materials or the adequacy of the Platform, and expressly
disclaim liability for errors in or omissions from the Company Materials. No warranty of any kind,
express, implied or statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other code defects, is
made by any agent party in connection with the Company Materials or the Platform. In no event
shall any Agent Party have any liability to the Guarantor, any Other Applicant, any Lender, any
Issuing Bank or any other person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Guarantor’s, any Other Applicant’s or
the Administrative Agent’s transmission of Company Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Guarantor, any Other Applicant, any Lender, any Issuing Bank
or any other person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).
Section 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Guarantor and the Other Applicants herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this Agreement or any other
Facility Document shall be considered to have been relied upon by the Lenders and the Issuing Banks
and shall survive the issuance of Letters of Credit by the Issuing Banks, regardless of any
investigation made by the Lenders or the Issuing Banks or on their behalf, and shall continue in
full force and effect as long as any Fee or any other amount payable under this Agreement or any
other Facility Document is outstanding and unpaid or any Letter of Credit is outstanding and so
long as the Commitments have not been terminated. The provisions of Section 2.09, Section 2.12 and
Section 9.05 shall remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated hereby, the
expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Facility Document,
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or any investigation made by or on behalf of the Administrative Agent, any Lender or any Issuing
Bank.
Section 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Guarantor, Flowserve B.V., any Other Applicants party hereto on the Closing Date
and the Administrative Agent and the conditions set forth in Section 4.02 have been satisfied, and
thereafter shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
Section 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party, which shall include, in the case of a Lender, any entity resulting from a
merger or consolidation; and all covenants, promises and agreements by or on behalf of the
Guarantor, the Other Applicants, the Administrative Agent, the Issuing Banks or the Lenders that
are contained in this Agreement shall bind and inure to the benefit of their respective successors
and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its Commitment and
participation in Letters of Credit); provided, however, that (i) (x) if the assignment is not
between existing Lenders, the Guarantor, the Administrative Agent and each Issuing Bank must give
their prior written consent to such assignment (which consent shall not be unreasonably withheld or
delayed); provided, however, that, the consent of the Guarantor shall not be required to any such
assignment during the continuance of any Event of Default, and (y) the amount of the Commitment of
the assigning Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be
less than €5,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment) and
any assignment or transfer shall at least include an assignment or transfer of such Lender’s
Commitment of a principal amount outstanding at that time of at least €50,000, unless it is made
to any person which qualifies as a professional market party (professionele morktpartij) under the
Dutch Financial Markets Supervision Act (Wet op het, financieel toezicht), provided, however; that
concurrent assignments to members of an Assignee Group and concurrent assignments from members of
an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will
be treated as a single assignment for purposes of determining whether such minimum amount has been
met, (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee (an “Assignment Fee”)
in the amount of $5,000 for each assignment; provided, however, that such processing and
recordation fee shall not apply to assignments at any time by Administrative Agent or its
respective Affiliates or between existing Lenders; and provided, further, that in the event of two
or more concurrent assignments to members of the same Assignee Group (which may be effected by a
suballocation of an assigned amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single assignee (or to an assignee and
members of its Assignee Group), the Assignment Fee shall be $5,000 for the first four such
concurrent assignments or suballocations and $500 for each additional concurrent assignment or
suballocation thereafter, and (iii) the assignee, if it shall not be a Lender, shall
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deliver to the Administrative Agent an Administrative Questionnaire. Upon acceptance and recording
pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, (a) the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (b) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be
a party hereto but shall continue to be entitled to the benefits of Section 2.09, Section 2.12 and
Section 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitment and participation in Letters of Credit, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other Facility Document or
any other instrument or document furnished pursuant hereto, or the financial condition of the
Guarantor, any Other Applicant or any of their Subsidiaries or the performance or observance by the
Guarantor or any Other Applicant of any of its obligations under this Agreement, any other Facility
Document or any other instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such Assignment and Acceptance;
(iv) such assignee confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 3.05 or delivered pursuant to Section
5.03 and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning Lender or any
other Lender or any Issuing Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the Guarantor and the
Other Applicants, shall maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive and the Guarantor, the Other
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Applicants, the Administrative Agent, the Issuing Banks and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Guarantor, the Other Applicants, and the Issuing Banks at any
reasonable time and from time to time upon reasonable prior notice. In addition, Administrative
Agent shall make the Register available for inspection by the Lenders upon reasonable prior notice
at reasonable times, provided that a Lender shall only be entitled to inspect its own entry in the
Register and not that of any other Lender.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) above (if applicable) and, if required, the written consent of the
Guarantor, the Issuing Banks and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and the Issuing Banks.
No assignment shall be effective unless it has been recorded in the Register as provided in this
paragraph (e). Prior to such recordation, all amounts owed with respect to the applicable
Commitment shall be owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any person who, at the time of making such request or giving such
authority or consent, is listed in the Register as the Lender shall be conclusive and binding on
any subsequent holder, assignee or transferee of the corresponding Commitments.
(f) Each Lender may, without the consent of the Guarantor, the Issuing Banks or the
Administrative Agent, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment); provided, however, that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Section 2.09, Section 2.12
or Section 9.05 to the same extent as if they were Lenders provided that the Guarantor and the
Other Applicants shall not be required to reimburse the participating banks or other entities
pursuant to Section 2.09, Section 2.12 or Section 9.05 in an amount in excess of the amount that
would have been payable thereunder to such Lender had such Lender not sold such participation, (iv)
a participating bank or other entity that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 2.12 unless the Guarantor is notified of the participation
sold to such participating bank or other entity and such participating bank or other entity agrees,
for the benefit of the Guarantor and the Other Applicants to comply with Section 9.05(e), and (v)
the Guarantor, the Other Applicant, the Administrative Agent, the Issuing Banks and the Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Guarantor and the Other Applicants relating to the L/C Disbursements and to
approve any amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder, increasing or extending
the Commitments or releasing the Guarantors).
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(g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Guarantor, the
Other Applicants or their Subsidiaries furnished to such Lender by or on behalf of the Guarantor,
the Other Applicants or their Subsidiaries; provided that, prior to any such disclosure of
information designated by the Guarantor as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders pursuant to Section
9.17.
(h) Any Lender may at any time assign all or any portion of its rights under this Agreement to
secure extensions of credit to such Lender without the consent of any of the Guarantor, the Other
Applicants or the Administrative Agent; provided that no such assignment shall release a Lender
from any of its obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(i) Neither the Guarantor nor the Other Applicants shall assign or delegate any of their
rights or duties hereunder without the prior written consent of the Administrative Agent, the
Issuing Banks and each Lender, and any attempted assignment without such consent shall be null and
void.
Section 9.05. Expenses; Indemnity. (a) The Guarantor and the Other Applicants agree to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent and the Issuing Banks in
connection with the syndication of the credit facilities provided for herein and the preparation,
execution, delivery and administration of this Agreement and the other Facility Documents or in
connection with any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred
by the Administrative Agent, an Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Facility Documents or in
connection with the Letters of Credit issued hereunder or the connection with collection of amounts
and hereunder, including the reasonable fees, charges and disbursements of Xxxxxxx and Xxxxxx LLP,
counsel for the Administrative Agent and, in connection with any such enforcement protection or
collection, the fees, charges and disbursements of any other counsel or advisors for the
Administrative Agent or any Lender.
(b) The Guarantor and the Other Applicants agree to indemnify the Administrative Agent, each
Lender and each Issuing Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees, agents, trustees, attorneys, Affiliates and advisors
(each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel
fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this Agreement or any
other Facility Document or any agreement or instrument contemplated thereby, the performance by the
parties thereto of their respective obligations thereunder, the underwriting or arrangement of the
credit extensions made thereunder or the
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consummation of the Transactions and the other transactions contemplated thereby, (ii) the issuance
of Letters of Credit the use or intended use of the proceeds thereof, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, or (iv) any actual or alleged presence or Release of Hazardous Materials on or from
any property currently or formerly owned or operated by the Guarantor, the Other Applicants or any
of their Subsidiaries, or any Environmental Liability related in any way to the Guarantor, the
Other Applicants or any of their Subsidiaries, in all cases, whether or not caused by or arising,
in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee. To the extent permitted by law, the Guarantor and the Other
Applicants waive any claim against any Indemnitee under any theory of liability for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of
or in connection with the Facility Documents, the Transactions, any Letter of Credit or the use of
the proceeds thereof.
(c) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any other Facility
Document, or any investigation made by or on behalf of the Administrative Agent, any Lender or any
Issuing Bank. All amounts due under this Section 9.05 shall be payable on written demand therefor.
Section 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, except to the extent prohibited
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Guarantor or any Other Applicant against any of and all the
obligations of the Guarantor or any Other Applicant now or hereafter existing under this Agreement
(including, in the case of the Guarantor, Article X hereof) and other Facility Documents held by
such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement or such other Facility Document and although such obligations may be unmatured. The
rights of each Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
Section 9.07. Applicable Law. This Agreement and the other Facility Documents (other than
Letters of Credit and as expressly set forth in other Facility Documents) shall be construed in
accordance with and governed by the internal laws of the State of Illinois. Each Letter of Credit
shall be governed by, and shall be construed in accordance with, the laws or rules designated in
such Letter of Credit, or if no such laws or rules are designated, the UCP and, as to matters not
governed by the UCP, the internal laws of the State of Illinois.
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Section 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, any
Lender or any Issuing Bank in exercising any power or right hereunder or under any other Facility
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and
under the other Facility Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or any other Facility
Document or consent to any departure by the Guarantor or any other Credit Party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Guarantor or any Other Applicant in any case shall entitle the
Guarantor to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Guarantor, the Other
Applicants, the Administrative Agent and the Required Lenders; provided, however, that no such
agreement shall (i) extend any date for reimbursement of an L/C Disbursement, or waive or excuse
any such payment or any part thereof, or decrease the rate of interest on any L/C Disbursement,
without the prior written consent of each Lender affected thereby, (ii) increase or extend the
Commitment of any Lender or decrease or extend the date for payment of the Fees due to any Lender
without the prior written consent of such Lender, (iii) amend or modify the definition of the term
“Required Lenders,” the pro rata requirements of Section 2.11, the provisions of Section 9.04, the
provisions of this Section, or release the Guarantor without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights
or duties of any Issuing Bank hereunder or under any other Facility Document without the prior
written consent of such Issuing Bank.
Section 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any participation in any L/C Disbursement, together
with all fees, charges and other amounts which are treated as interest on such participation in
such L/C Disbursement under applicable law (collectively the “Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved
by the Lender holding such participation in accordance with applicable law, the rate of interest
payable in respect of such participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such Lender.
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Section 9.10. Entire Agreement. This Agreement, the Proposal Letter and the other Facility
Documents represent the final agreement among the parties and may not be contradicted by evidence
of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten
oral agreements among the parties. Any other previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Facility Documents.
Nothing in this Agreement or in the other Facility Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights, remedies, obligations
or liabilities under or by reason of this Agreement or the other Facility Documents.
Section 9.11. Waiver of Jury Trial. Each party hereto hereby waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of, under or in connection with this Agreement or
any of the other Facility Documents. Each party hereto (a) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement and the other Facility
Documents, as applicable, by, among other things, the mutual waivers and certifications in this
section 9.11.
Section 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Facility Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
Section 9.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission or pdf copy shall be as effective as delivery of a manually signed counterpart of this
Agreement.
Section 9.14. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
Section 9.15. Jurisdiction; Consent to Service of Process. (a) The Guarantor and the Other
Applicants hereby irrevocably and unconditionally submit, each for itself and its property, to the
nonexclusive jurisdiction of any Illinois State court or Federal court of the United States of
America sitting in Chicago, Illinois, and any appellate court from any thereof, in any action or
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proceeding arising out of or relating to this Agreement or the other Facility Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such Illinois State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that the Administrative
Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or the other Facility Documents against the Guarantor, the Other Applicants or
their properties in the courts of any jurisdiction.
(b) The Guarantor and the Other Applicants hereby irrevocably and unconditionally waive, to
the fullest extent each may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Facility Documents in any Illinois State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
Section 9.16. Judgment Currency. (a) The obligations of the Guarantor and the other Credit
Parties hereunder and under the other Facility Documents to make payments in any currency hereunder
(each, an “Obligation Currency”) shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than the appropriate
Obligation Currency, except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent or a Lender or an Issuing Bank of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent or such Lender or Issuing
Bank under this Agreement or the other Facility Documents. If, for the purpose of obtaining or
enforcing judgment against the Guarantor or any other Credit Party or in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the “Judgment Currency”) an amount
due in such applicable Obligation Currency, the conversion shall be made, in the case of Dollars,
at the Dollar Exchange Rate and, in the case of other currencies, the Exchange Rate determined, in
each case, as of the first Business Day immediately preceding the day on which the judgment is
given (such Business Day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Guarantor covenants and
agrees to pay, or cause to be paid, as a separate obligation and notwithstanding any judgment, such
additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment, will produce the amount of the Obligation Currency
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which could have been purchased with the amount of Judgment Currency stipulated in the judgment or
judicial award at the rate of exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the Obligation Currency.
Section 9.17. Confidentiality. The Administrative Agent, each Issuing Bank and each of the
Lenders agrees to keep confidential (and to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that the Administrative
Agent, any Issuing Bank or any Lender shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and representatives as need to know
such Information, (b) to a pledgee under Section Section 9.04(h) or a potential assignee or
participant of such Lender or such potential assignee’s or participant’s advisors who need to know
such Information (provided that any such pledgee, potential assignee or participant shall, and
shall use commercially reasonable efforts to cause its advisors to, keep confidential all such
Information on the terms set forth in this Section 9.17), (c) to the extent requested by any
regulatory authority or quasi-regulatory authority such as the National Association of Insurance
Commissioners (NAIC), (d) to the extent otherwise required by applicable laws and regulations or by
any subpoena or similar legal process, (e) in connection with any suit, action or proceeding
relating to the enforcement of its rights hereunder or under the other Facility Documents or (f) to
the extent such Information (i) becomes publicly available other than as a result of a breach of
this Section 9.17 or (ii) becomes available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis from a source other than the Guarantor or any Other Applicant.
For the purposes of this Section and Section 9.01, “Information” shall mean all financial
statements, certificates, reports, agreements and information (including all analyses, compilations
and studies prepared by the Administrative Agent, any Issuing Bank or any Lender based on any of
the foregoing) that are received from the Guarantor and related to the Guarantor, any of the Other
Applicants or any of their Subsidiaries, any shareholder of the Guarantor or any employee, customer
or supplier of the any of the Other Applicants, or any of the Guarantor or Subsidiaries, other than
any of the foregoing that were available to the Administrative Agent, any Issuing Bank or any
Lender on a nonconfidential basis prior to its disclosure thereto by the Guarantor or an Other
Applicant, and which are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. Notwithstanding the foregoing, the
Administrative Agent and the Lenders may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to the lending industry,
and service providers to the Administrative Agent and the Lenders, and the Administrative Agent or
any of its Affiliates may place customary “tombstone” advertisements relating hereto in
publications (including publications circulated in electronic form) of its choice at its own
expense. The provisions of this Section 9.17 shall remain operative and in full force and effect
regardless of the expiration and term of this Agreement.
Section 9.18. Payments Set Aside. To the extent any Lender Party receives payment of any
amount under the Facility Documents, whether by way of payment by the Guarantor,
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payment by an Other Applicant, set-off or otherwise, which payment is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, other law or equitable cause, in whole or in
part, then, to the extent of such payment so invalidated, set aside or repaid, the Obligations or
part thereof intended to be satisfied thereby shall be revived and continue in full force and
effect as if such payment had not been received by such Lender Party. If prior to any such
invalidation, declaration, setting aside or requirement, this Agreement shall have been canceled or
surrendered, this Agreement shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, discharge or otherwise affect the obligations of the
Guarantor or the Other Applicants in respect of the amount of the affected payment.
Section 9.19. European Monetary Union. If, as a result of the further implementation of
European monetary union, (a) any Alternative Currency (other than the euro) ceases to be lawful
currency of the nation issuing the same and is replaced by the euro, then the amount payable
hereunder in respect thereof shall be determined by translating the amount payable in such currency
to euro at the exchange rate recognized by the European Central Bank for the purpose of replacing
such currency by the euro, or (b) any such Alternative Currency and the euro are at the same time
recognized by the central bank or comparable authority of the nation issuing such currency as
lawful currency of such nation, then any Alternative Currency Letter of Credit issued at such time
that would otherwise be denominated in such currency shall be denominated in euro.
Section 9.20. USA Patriot Act. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Guarantor and each Other Applicant that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies the Guarantor and each Other Applicant, which
information includes the name and address of the Guarantor and each Other Applicant and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Guarantor and each Other Applicant in accordance with the Act.
Section 9.21. German Limited Liability Companies Act. Nothing in this Agreement shall oblige
Flowserve Hamburg GmbH to make a payment under any joint and several liability provided under this
Agreement if and to the extent that such payment would cause the net assets (Reinvermoegen) of
Flowserve Hamburg GmbH, calculated as assets less liabilities and reserves, to be reduced below the
amount of its registered share capital which is protected by sections 30 and 31 of the German
Limited Liabilites Companies Act (GmbHG), or, where the net assets already are below the amount of
its registered share capital, cause such amount to be further reduced.
Article X
The Guaranty
Section 10.1. The Guaranty. To induce the Lender Parties to provide the credits described
herein and in consideration of benefits expected to accrue to each Other Applicant and the
Guarantor by reason of the Commitments and for other good and valuable consideration,
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receipt of which is hereby acknowledged, the Guarantor hereby unconditionally and irrevocably
guarantees to the Lender Parties the due and punctual payment of all present and future Obligations
owed by each Other Applicant, including, but not limited to, the due and punctual payment of
principal of and interest on the L/C Disbursements, and the due and punctual payment of all other
Obligations now or hereafter owed by such Other Applicants under the Facility Documents, in each
case as and when the same shall become due and payable, whether by acceleration, or otherwise,
according to the terms hereof and thereof (including interest which, but for the filing of a
petition in bankruptcy, would otherwise accrue on any such indebtedness, obligation, or liability).
In case of failure by any Other Applicant or other obligor punctually to pay any Obligations owing
by it, the Guarantor hereby unconditionally agrees to make such payment or to cause such payment to
be made punctually as and when the same shall become due and payable, whether at stated maturity,
by acceleration, or otherwise, and as if such payment were made by the defaulting Other Applicant.
Section 10.2. Guarantee Unconditional. The obligations of the Guarantor under this Article 10
shall be unconditional and absolute and, without limiting the generality of the foregoing, shall
not be released, discharged, or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver, or release in respect of
any obligation of the any Other Applicant or of any other obligor under this Agreement or
any other Facility Document or by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement or any other
Facility Document;
(c) any change in the existence, structure, or ownership of, or any insolvency,
bankruptcy, reorganization, or other similar proceeding affecting, any Other Applicant or
other obligor or any of their respective assets, or any resulting release or discharge of
any obligation of any Other Applicant or other obligor contained in any Facility Document;
(d) the existence of any claim, set-off, or other rights which any Other Applicant or
other obligor may have at any time against the Administrative Agent, any Lender, any Issuing
Bank or any other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or demand or any exercise of,
or failure to exercise, any rights or remedies against any Other Applicant or other obligor
or any other person or property;
(f) any application of any sums by whomsoever paid or howsoever realized to any
obligation of any Other Applicant or other obligor, regardless of what obligations of such
Other Applicant or other obligor remain unpaid;
(g) any invalidity or unenforceability relating to or against any Other Applicant or
other obligor for any reason of this Agreement or of any other Facility Document or any
provision of applicable law or regulation purporting to prohibit the
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payment by any Other Applicant or any other obligor of the principal of or interest on any
L/C Disbursement or any other amount payable under the Facility Documents; or
(h) any other act or omission to act or delay of any kind by the Administrative Agent,
any Lender, any Issuing Bank or any other person or any other circumstance whatsoever that
might, but for the provisions of this paragraph, constitute a legal or equitable discharge
of the obligations of any Other Applicant under this Article 10.
Section 10.3. Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances.
The Guarantor’s obligations under this Article 10 shall remain in full force and effect until the
Commitments are terminated, all Letters of Credit have expired, and the principal of and interest
on L/C Disbursements and all other amounts payable by each Other Applicant under this Agreement and
all other Facility Documents shall have been paid in full. If at any time any payment of the
principal of or interest on any L/C Disbursements or any other amount payable by any Other
Applicant or other obligor under the Facility Documents is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy, or reorganization of such Other Applicant or other
obligor, or otherwise, the Guarantor’s obligations under this Article 10 with respect to such
payment shall be reinstated at such time as though such payment had become due but had not been
made at such time.
Section 10.4. Subrogation. The Guarantor agrees it will not exercise any rights which it may
acquire by way of subrogation by any payment made hereunder, or otherwise, until all the
Obligations shall have been paid in full subsequent to the termination of all the Commitments and
expiration of all Letters of Credit. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time prior to the later of (x) the payment in full of the
Obligations and all other amounts payable by the Other Applicants hereunder and the other Facility
Documents and (y) the termination of the Commitments and expiration of all Letters of Credit, such
amount shall be held in trust for the benefit of the Administrative Agent, the Issuing Banks and
the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Issuing
Banks and Lenders or be credited and applied to the Obligations, whether matured or unmatured, in
accordance with the terms of this Agreement.
Section 10.5. Waivers. The Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest, and any notice not provided for herein, as well as any requirement that at any
time any action be taken by the Administrative Agent, any Issuing Bank, any Lender, or any other
person against the Other Applicants or other obligor or any other person.
Section 10.6. Stay of Acceleration. If acceleration of the time for payment of any amount
payable by any Other Applicant or other obligor under this Agreement or any other Facility Document
is stayed upon the insolvency, bankruptcy or reorganization of such Other Applicant or such
obligor, all such amounts otherwise subject to acceleration under the terms of this Agreement or
the other Facility Documents shall nonetheless be payable by the Guarantor hereunder forthwith on
demand by the Administrative Agent made at the request of the Required Lenders.
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Section 10.7. Benefit to the Guarantor. The Other Applicants and the Guarantor are engaged in
related businesses and integrated to such an extent that the financial strength and flexibility of
the Other Applicants and the Guarantor have a direct impact on the success of each other. The
Guarantor will derive substantial direct and indirect benefit from the extensions of credit to the
Other Applicants hereunder.
[Remainder of Page Left Intentionally Blank]
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In Witness Whereof, the parties hereto have caused this Agreement to be duly executed
as of the date first written above.
“Guarantor and Applicant” Flowserve Corporation |
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By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Vice President - Treasurer | |||
“Other Applicants” Flowserve B.V. |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Director | |||
Flowserve Spain SAU |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Administrator | |||
Flowserve Hamburg GmbH |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Director | |||
Flowserve S.A. |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Administrator |
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Worthington SpA |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Director | |||
S-2
ABN AMRO Bank N.V., as Administrative Agent, an Issuing Bank and a Lender |
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By: | /s/ Xxxxxxxx X. Xxxx | |||
Name: | Xxxxxxxx X. Xxxx | |||
Title: | Managing Director | |||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | Managing Director | |||
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Calyon New York Branch |
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By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | Managing Director and Regional Head | |||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Managing Director |
S-4
RBS Citizens, N.A. |
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By: | /s/ Xxxxx X. Cable | |||
Name: | Xxxxx X. Cable | |||
Title: | Vice President | |||
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