Exhibit 4.11
AMENDMENT AND RESTATEMENT AGREEMENT dated as of July 15, 2010
(this “
Agreement”), to the
Credit Agreement dated as of January 12, 2007,
as amended prior to the date hereof (as in effect immediately prior to the
Restatement Effective Date (as defined below), the “
Original Credit
Agreement”), among CGGVERITAS SERVICES HOLDING (U.S.) INC. (formerly known
as Volnay Acquisition Co. II, as successor-in-interest to Volnay
Acquisition Co. I), a Delaware corporation (the “
Borrower”), COMPAGNIE
GÉNÉRALE DE GÉOPHYSIQUE-VERITAS (formerly known as Compagnie Générale De
Géophysique), a
société anonyme incorporated under the laws of France
(registration number 969 202 241 RCS Paris) (“
Parent”), the Lenders (as
defined therein) and CREDIT SUISSE AG (formerly known as Credit Suisse),
as administrative agent (in such capacity, the “
Administrative Agent”) and
as collateral agent (in such capacity, the “
Collateral Agent”) for the
Lenders.
SECTION 1.
Defined Terms. Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Restated
Credit Agreement referred to below, except that the
defined terms “Term Lender” and “Term Loan” shall have the meanings assigned to such terms in the
Original
Credit Agreement.
SECTION 2.
Amendment and Restatement of the Credit Agreement. (a) Effective on the
Restatement Effective Date, the Original
Credit Agreement is hereby amended and restated to read in
its entirety as set forth in Exhibit A hereto (the “
Restated Credit Agreement”). From and after
the effectiveness of such amendment and restatement, the terms “Agreement”, “this Agreement”,
“herein”, “hereinafter”, “hereto”, “hereof” and words of similar import, as used in the Restated
Credit Agreement, shall, unless the context otherwise requires, refer to the Restated Credit
Agreement, and the
term “Credit Agreement”, as used in the other Finance Documents, shall mean the Restated
Credit Agreement.
(b) All Revolving Commitments in effect under the Original Credit Agreement immediately prior
to the Restatement Effective Date shall continue in effect under the Restated Credit Agreement and
(ii) all Loans and Letters of Credit outstanding under the Original Credit Agreement immediately
prior to the Restatement Effective Date shall continue to be outstanding under the Restated Credit
Agreement, and on and after the Restatement Effective Date, the Restated Credit Agreement will
govern the rights and obligations of the Borrower, Parent, the Lenders, the Issuing Bank, the
Swingline Lender, the Administrative Agent and the Collateral Agent with respect thereto.
SECTION 3.
Term Loans. (a) Subject to the terms and conditions set forth herein and in the
Restated Credit Agreement, effective upon the Restatement Effective Date, (i) each Term Lender that
is an Extending Term Lender shall be a Tranche B-2 Term Lender under the Restated Credit Agreement,
and its Term Loans shall be Tranche B-2 Term Loans of like principal amount thereunder and (ii)
each Declining Term Lender shall be a Tranche B-1 Term Lender under the Restated Credit Agreement,
and its Term Loans shall be Tranche B-1 Term Loans of like principal amount thereunder.
(b) The Interest Periods and Applicable Percentages in effect for the Term Borrowings
immediately prior to the Restatement Effective Date shall remain in effect for the Tranche B-1 Term
Borrowings and the Tranche B-2 Term Borrowings resulting from the effectiveness of this Agreement
on the Restatement Effective Date, notwithstanding any contrary provision of Section 2.02 or
Section 2.10 of the Original Credit Agreement or the Restated Credit Agreement, with only the
Applicable Percentage for the Tranche B-2 Term Borrowings changing as of, and with effect from and
after, the Restatement Effective Date.
(c) The Administrative Agent is hereby authorized to prepare Schedule 2.01 to the Restated
Credit Agreement, reflecting the Tranche B-1 Term Loans and the Tranche B-2 Term Loans, and the
amounts reflected therein shall be conclusive absent demonstrable error.
SECTION 4.
Representations and Warranties. To induce the other parties hereto to enter into
this Agreement, each of the Borrower and each other Obligor hereby represents and warrants to each
of the Lenders, the Issuing Bank, the Administrative Agent and the Collateral Agent that, at the
time of and after giving effect to this Agreement:
(a) This Agreement has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with its terms, subject
to the Legal Reservations.
(b) the representations and warranties set forth in Article III of the Restated Credit
Agreement and in each other Finance Document are true and correct in all material respects on and
as of the Restatement Effective Date 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; and
(c) no Default or Event of Default has occurred and is continuing.
SECTION 5.
Amendment Fees. The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender that executes and delivers a counterpart of this Agreement to the
Administrative Agent (or its counsel) at or prior to the Delivery Time, a fee (the “
Amendment Fee”)
in an amount equal to 0.25% of the sum of the aggregate principal amount outstanding of such
Lender’s Term Loans and Revolving Credit Commitments (whether used or unused) as of such date. The
Amendment Fee shall be payable in immediately available funds on, and subject to the occurrence of,
the Restatement Effective Date.
SECTION 6.
Effectiveness. This Agreement shall become effective as of the date (the
“
Restatement Effective Date”) on which the following conditions shall be satisfied:
(a) the Administrative Agent shall have received counterparts of this Agreement that, when
taken together, bear the signatures of the Borrower, Parent, each other Guarantor, the Majority
Lenders and each Extending Term Lender;
(b) the Administrative Agent shall have received, on behalf of itself, the Lenders and the
Issuing Bank, favorable legal opinions of Linklaters LLP, counsel to the Borrower, under the laws
of the State of
New York, the State of Delaware and France, dated the Restatement Effective Date
and in form and substance reasonably satisfactory to the Administrative Agent, and the Borrower
hereby requests such counsel to deliver such opinions;
(c) all legal matters incident to this Agreement, the Borrowings and extensions of credit
hereunder and under the other Finance Documents shall be reasonably satisfactory to the
Administrative Agent and the Majority Lenders party hereto;
(d) the Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each of Parent and the Borrower, certified as
of a recent date by the Secretary of State of the state of its organization (or the reasonable
equivalent thereof, in the case of Parent), and a certificate as to the good standing of each of
Parent and the Borrower as of a recent date, from such Secretary of State (or the reasonable
equivalent thereof, if any, in the case of Parent); (ii) a certificate of the secretary, assistant
secretary or other Responsible Officer of each of Parent and the Borrower dated the Restatement
Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws
(or the reasonable equivalent thereof, in the case of Parent) of Parent or the Borrower, as
applicable, as in effect on the Restatement Effective Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of Parent or the Borrower, as
applicable, authorizing the execution, delivery and performance of the Finance Documents to which
such person is a party and, in the case of the Borrower, the entry into of this Agreement and the
borrowings under the Restated Credit Agreement, 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 the reasonable equivalent thereof, in the case of Parent) of the Borrower or
Parent, as applicable, 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, and (D) as to the
incumbency and specimen signature of each Responsible Officer or other authorized agent and
attorney-in-fact executing any Finance Document or any other document delivered in connection
herewith on behalf of the Borrower or Parent, as applicable; (iii) a certificate of another
Responsible Officer as to the incumbency and specimen signature of the secretary, assistant
secretary or other Responsible Officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Lenders or the Administrative Agent may reasonably request;
(e) the Administrative Agent shall have received a certificate, dated the Restatement
Effective Date and signed by a Financial Officer of Parent and the Borrower, confirming (i)
compliance with the conditions precedent set forth in paragraphs (b) and (c) of Article IV of the
Restated Credit Agreement and (ii) that Parent and its Subsidiaries, on a consolidated basis after
giving effect to the transactions contemplated hereby, are Solvent; and
(f) the Administrative Agent shall have received all fees and other amounts due and payable
hereunder or under the Original Credit Agreement on or prior to the Restatement Effective Date,
including the Amendment Fees and, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by Parent or the Borrower hereunder or
under any other Finance Document.
The Administrative Agent shall notify the Borrower and the Lenders of the Restatement
Effective Date, and such notice shall be conclusive and binding.
SECTION 7.
Additional Agreements. (a) Within 30 days following the Restatement Effective
Date (which period may be extended by the Administrative Agent in its sole discretion), the
Borrower shall deliver to the Administrative Agent (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Guarantor other than Parent, certified as
of a recent date by the Secretary of State of the state of its organization (or the reasonable
equivalent thereof, in the case of Foreign Obligors), and a certificate as to the good standing of
each such Guarantor as of a recent date, from such Secretary of State (or the reasonable equivalent
thereof, if any, in the case of Foreign Obligors); (ii) a certificate of the secretary, assistant
secretary or other Responsible Officer of each such Guarantor certifying (A) that attached thereto
is a true and complete copy of the by-laws (or the reasonable equivalent thereof, in the case of
Foreign Obligors) of such Guarantor as in effect on the Restatement Effective Date and at all times
since a date prior to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such
Guarantor authorizing the execution, delivery and performance of the Finance Documents to which
such person is a party, 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 the
reasonable equivalent thereof, in the case of Foreign Obligors) of such Guarantor 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, and (D) as to the incumbency and specimen signature of each
Responsible Officer or other authorized agent and attorney-in-fact executing any Finance Document
or any other document delivered in connection herewith on behalf of such
Guarantor; (iii) a
certificate of another Responsible Officer as to the incumbency and specimen signature of the
secretary, assistant secretary or other Responsible Officer executing the certificate pursuant to
clause (ii) above; (iv) such other documents as the Lenders or the Administrative Agent may
reasonably request; and (v) on behalf of the
Administrative Agent, the Lenders and the Issuing Bank, favorable legal opinions of Linklaters
LLP, counsel to the Borrower, under the laws of the State of
New York, the State of Delaware and
France, with respect to each such Guarantor and in form and substance reasonably satisfactory to
the Administrative Agent, and the Borrower hereby requests such counsel to deliver such opinions.
(b) Within 60 days following the Restatement Effective Date (which period may be extended by
the Collateral Agent in its sole discretion), the Borrower shall deliver to the Collateral Agent
(i) amendments to each of the Mortgages duly executed by the parties thereto (collectively, the
“Mortgage Amendments”) as are necessary to reflect the Tranche B-2 Maturity Date and such other
amendments thereto as are necessary to reflect the transactions contemplated hereby and by the
Restated Credit Agreement, (ii) evidence reasonably satisfactory to the Collateral Agent of the
recording of the Mortgage Amendments in the applicable recording offices or evidence that
arrangements for such recording have been made and (iii) bring-down endorsements of the title
insurance policies issued in connection with the Mortgages insuring the liens of the Mortgages, as
amended by the Mortgage Amendments as first priority liens upon the Mortgaged Properties, free of
Security other than any Permitted Security, in each case in form and substance reasonably
satisfactory to the Collateral Agent.
SECTION 8.
Reaffirmation. The Borrower and each other Obligor, by its signature below,
hereby (a) agrees that, notwithstanding the effectiveness of this Agreement or the Restated Credit
Agreement, the Security Documents continue to be in full force and effect and (b) affirms and
confirms its guarantee of the Obligations and the pledge of and/or grant of a security interest in
its assets as Collateral pursuant to the Security Documents to secure such Obligations, all as
provided in the Security Agreements as originally executed, and acknowledges and agrees that such
guarantee, pledge and grant continue in full force and effect in respect of, and to secure, such
Obligations under the Restated Credit Agreement and the other Finance Documents.
SECTION 9.
No Novation. Neither this Agreement nor the effectiveness of the Restated Credit
Agreement shall extinguish the Obligations for the payment of money outstanding under the Original
Credit Agreement or discharge or release the lien or priority of any Finance Document or any other
security therefor or any guarantee thereof, and the liens and security interests existing
immediately prior to the Restatement Effective Date in favor of the Collateral Agent for the
benefit of the Secured Parties securing payment of the Obligations are in all respects continuing
and in full force and effect with respect to all Obligations. Nothing herein contained shall be
construed as a substitution or novation, or a payment and reborrowing, or a termination, of the
Obligations outstanding under the Original Credit Agreement or instruments guaranteeing or securing
the same, which shall remain in full force and effect, except as modified hereby (including by the
Restated Credit Agreement) or by instruments executed concurrently herewith. Nothing expressed or
implied in this Agreement, the Restated Credit Agreement or any other document contemplated hereby
or thereby shall be construed as a release or other discharge of the Borrower under the Original
Credit Agreement or the Borrower or any other Obligor under any Loan Document from any of
its
obligations and liabilities thereunder, and such obligations are in all respects continuing with
only the terms being modified as provided in this Agreement and in the Restated Credit Agreement.
The Original Credit Agreement and each of the other Finance Documents shall remain in full force
and effect, until and except as modified hereby (including by the Restated Credit Agreement). This
Agreement shall constitute a
Finance Document for all purposes of the Original Credit Agreement and the Restated Credit
Agreement. Each Guarantor (other than Parent) further agrees that nothing in the Restated Credit
Agreement, this Agreement or any other Finance Document shall be deemed to require the consent of
such Guarantor to any future amendment to the Restated Credit Agreement.
SECTION 10.
Counterparts. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original, but all such counterparts together shall constitute a single
contract. Delivery of an executed counterpart of a signature page to this Agreement by facsimile
or other electronic transmission shall be effective as delivery of a manually executed counterpart
hereof.
SECTION 11.
Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 12.
Headings. The headings of this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
[Remainder of this page intentionally left blank]
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CGGVERITAS SERVICES HOLDING (U.S.) INC.,
as Borrower
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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COMPAGNIE GÉNÉRALE DE
GÉOPHYSIQUE-VERITAS, as Parent
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Group Chief Financial Officer &
Attorney in fact |
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CGG MARINE RESOURCES NORGE AS, as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGGVERITAS SERVICES (UK) HOLDING B.V.,
as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGGVERITAS SERVICES HOLDING B.V., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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SERCEL AUSTRALIA PTY LIMITED, as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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SERCEL, INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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VERITAS INVESTMENTS INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGGVERITAS SERVICES (U.S.) INC.
(including as successor by merger to VERITAS
DGC ASIA PACIFIC LTD.), as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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VERITAS GEOPHYSICAL (MEXICO) LLC, as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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ALITHEIA RESOURCES INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGGVERITAS LAND (U.S.) INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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VIKING MARITIME INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGG AMERICAS INC., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CGG CANADA SERVICES LTD., as Guarantor
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By: |
/s/ stephane-xxxx xxxxxxx
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Name: |
Stephane-Xxxx Xxxxxxx |
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Title: |
Agent & Attorney in fact |
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CREDIT SUISSE AG, CAYMAN ISLANDS
BRANCH, as Administrative Agent and Collateral Agent
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By: |
/s/ xxxxxx xxxx
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Name: |
Xxxxxx Xxxx |
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Title: |
Managing Director |
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By: |
/s/ xxxxx xxxxxxxx
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Associate |
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EXHIBIT A
CREDIT AGREEMENT
dated as of January 12, 2007,
as amended and restated as of July 15, 2010,
among
CGGVERITAS SERVICES HOLDING (U.S.) INC.,
COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE — VERITAS,
THE LENDERS PARTY HERETO
and
CREDIT SUISSE AG,
as Administrative Agent and Collateral Agent,
CREDIT SUISSE SECURITIES (USA) LLC,
as Bookrunner
CREDIT SUISSE SECURITIES (USA) LLC and
ROYAL BANK OF CANADA,
as Joint Lead Arrangers
NATIXIS,
BNP PARIBAS,
SOCIÉTÉ GÉNÉRALE,
CRÉDIT INDUSTRIEL ET COMMERCIAL and
CALYON,
as Co-Arrangers and Co-Documentation Agents
ROYAL BANK OF CANADA,
as Syndication Agent
[CS&M Ref. No. 5865-505]
Table of Contents
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Page |
ARTICLE I
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Definitions
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SECTION 1.01. Defined Terms |
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2 |
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SECTION 1.02. Terms Generally |
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39 |
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SECTION 1.03. Classification of Loans and Borrowings |
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40 |
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SECTION 1.04. Intercreditor Agreement |
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41 |
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ARTICLE II
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The Credits
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SECTION 2.01. Commitments |
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41 |
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SECTION 2.02. Loans |
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41 |
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SECTION 2.03. Borrowing Procedure |
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43 |
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SECTION 2.04. Evidence of Debt; Repayment of Loans |
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44 |
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SECTION 2.05. Fees |
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45 |
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SECTION 2.06. Interest on Loans |
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46 |
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SECTION 2.07. Default Interest |
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46 |
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SECTION 2.08. Alternate Rate of Interest |
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46 |
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SECTION 2.09. Termination and Reduction of Commitments |
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47 |
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SECTION 2.10. Conversion and Continuation of Borrowings |
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47 |
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SECTION 2.11. Repayment of Term Borrowings |
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49 |
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SECTION 2.12. Optional Prepayment |
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50 |
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SECTION 2.13. Mandatory Prepayments |
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51 |
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SECTION 2.14. Reserve Requirements; Change in Circumstances |
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53 |
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SECTION 2.15. Change in Legality |
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54 |
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SECTION 2.16. Indemnity |
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54 |
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SECTION 2.17. Pro Rata Treatment |
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55 |
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SECTION 2.18. Sharing of Setoffs |
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55 |
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SECTION 2.19. Payments |
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56 |
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SECTION 2.20. Taxes |
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56 |
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SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate |
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58 |
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SECTION 2.22. Swingline Loans |
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59 |
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SECTION 2.23. Letters of Credit |
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60 |
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SECTION 2.24. Incremental Commitments |
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65 |
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SECTION 2.25. Defaulting Lenders |
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67 |
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i
Table of Contents
(continued)
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ARTICLE III
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Representations and Warranties
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SECTION 3.01. Status |
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67 |
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SECTION 3.02. Binding Obligations |
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67 |
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SECTION 3.03. Non-Conflict with Other Obligations |
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68 |
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SECTION 3.04. Power and Authority |
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68 |
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SECTION 3.05. Validity and Admissibility in Evidence |
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68 |
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SECTION 3.06. Governing Law and Enforcement |
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68 |
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SECTION 3.07. Solvency |
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68 |
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SECTION 3.08. No Filing or Stamp Taxes |
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69 |
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SECTION 3.09. Deduction of Tax |
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69 |
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SECTION 3.10. No Default |
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69 |
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SECTION 3.11. Federal Reserve Regulations |
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69 |
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SECTION 3.12. Investment Company Act |
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70 |
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SECTION 3.13. ERISA |
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70 |
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SECTION 3.14. Use of Proceeds |
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70 |
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SECTION 3.15. No Misleading Information |
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70 |
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SECTION 3.16. Original Financial Statements |
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71 |
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SECTION 3.17. No Proceedings Pending or Threatened |
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72 |
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SECTION 3.18. No Breach of Laws |
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72 |
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SECTION 3.19. Environmental Laws |
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72 |
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SECTION 3.20. Taxation |
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72 |
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SECTION 3.21. Security and Financial Indebtedness |
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72 |
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SECTION 3.22. Ranking |
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72 |
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SECTION 3.23. Good Title to Assets |
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73 |
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SECTION 3.24. Sanctioned Persons |
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73 |
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SECTION 3.25. Legal and Beneficial Ownership |
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73 |
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SECTION 3.26. Shares |
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73 |
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SECTION 3.27. Intellectual Property |
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73 |
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SECTION 3.28. Accounting Reference Date |
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74 |
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SECTION 3.29. Centre of Main Interests and Establishments |
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74 |
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ii
Table of Contents
(continued)
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Page |
ARTICLE IV
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Conditions of Lending
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ARTICLE V
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Affirmative Covenants |
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SECTION 5.01. Financial Statements |
|
|
75 |
|
SECTION 5.02. Provision and Contents of Compliance Certificate |
|
|
75 |
|
SECTION 5.03. Requirements as to Financial Statements |
|
|
76 |
|
SECTION 5.04. Presentations |
|
|
76 |
|
SECTION 5.05. Information; Miscellaneous |
|
|
77 |
|
SECTION 5.06. Notification of Default |
|
|
77 |
|
SECTION 5.07. “Know Your Customer” Checks |
|
|
77 |
|
SECTION 5.08. Authorizations |
|
|
78 |
|
SECTION 5.09. Compliance with Laws |
|
|
78 |
|
SECTION 5.10. Environmental Compliance |
|
|
78 |
|
SECTION 5.11. Environmental Claims |
|
|
79 |
|
SECTION 5.12. Taxation |
|
|
79 |
|
SECTION 5.13. Preservation of Assets |
|
|
79 |
|
SECTION 5.14. Pari Passu Ranking |
|
|
79 |
|
SECTION 5.15. Merger Documents |
|
|
79 |
|
SECTION 5.16. Insurance |
|
|
80 |
|
SECTION 5.17. Pensions |
|
|
80 |
|
SECTION 5.18. Access |
|
|
80 |
|
SECTION 5.19. Intellectual Property |
|
|
80 |
|
SECTION 5.20. Financial Assistance |
|
|
81 |
|
SECTION 5.21. Further Assurance |
|
|
81 |
|
SECTION 5.22. [Reserved] |
|
|
82 |
|
SECTION 5.23. Maintenance of Ratings |
|
|
82 |
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
|
|
Negative Covenants
|
|
|
|
|
|
SECTION 6.01. Year-end |
|
|
82 |
|
SECTION 6.02. Financial Covenants |
|
|
82 |
|
SECTION 6.03. Merger |
|
|
84 |
|
SECTION 6.04. Change of Business |
|
|
84 |
|
SECTION 6.05. Acquisitions |
|
|
85 |
|
SECTION 6.06. Joint Ventures and Investments |
|
|
85 |
|
iii
Table of Contents
(continued)
|
|
|
|
|
|
|
Page |
SECTION 6.07. Negative Pledge |
|
|
85 |
|
SECTION 6.08. Disposals |
|
|
85 |
|
SECTION 6.09. Arm’s Length Basis |
|
|
86 |
|
SECTION 6.10. Loans or Credit |
|
|
86 |
|
SECTION 6.11. No Guarantees or Indemnities |
|
|
87 |
|
SECTION 6.12. Dividends and Share Redemption |
|
|
87 |
|
SECTION 6.13. Financial Indebtedness |
|
|
88 |
|
SECTION 6.14. Share Capital |
|
|
88 |
|
SECTION 6.15. Amendments |
|
|
88 |
|
SECTION 6.16. Treasury Transactions |
|
|
89 |
|
|
|
|
|
|
ARTICLE VII
|
|
|
|
|
|
Events of Default
|
|
|
|
|
|
ARTICLE VIII
|
|
|
|
|
|
The Administrative Agent and the Collateral Agent
|
|
|
|
|
|
ARTICLE IX
|
|
|
|
|
|
Miscellaneous
|
|
|
|
|
|
SECTION 9.01. Notices |
|
|
94 |
|
SECTION 9.02. Survival of Agreement |
|
|
95 |
|
SECTION 9.03. Binding Effect |
|
|
95 |
|
SECTION 9.04. Successors and Assigns |
|
|
96 |
|
SECTION 9.05. Expenses; Indemnity |
|
|
100 |
|
SECTION 9.06. Right of Setoff |
|
|
101 |
|
SECTION 9.07. Applicable Law |
|
|
102 |
|
SECTION 9.08. Waivers; Amendment |
|
|
102 |
|
SECTION 9.09. Interest Rate Limitation |
|
|
103 |
|
SECTION 9.10. Entire Agreement |
|
|
103 |
|
SECTION 9.11. WAIVER OF JURY TRIAL |
|
|
104 |
|
SECTION 9.12. Severability |
|
|
104 |
|
SECTION 9.13. [Reserved] |
|
|
104 |
|
SECTION 9.14. Headings |
|
|
104 |
|
SECTION 9.15. Jurisdiction; Consent to Service of Process |
|
|
104 |
|
SECTION 9.16. Confidentiality |
|
|
105 |
|
SECTION 9.17. USA PATRIOT Act Notice |
|
|
106 |
|
iv
SCHEDULES
|
|
|
|
|
Schedule 1.01(a)
|
|
-
|
|
[Reserved] |
Schedule 1.01(b)
|
|
-
|
|
Original Guarantors |
Schedule 1.01(c)
|
|
-
|
|
Mortgaged Property |
Schedule 1.01(d)
|
|
-
|
|
Existing Financial Indebtedness |
Schedule 1.01(e)
|
|
-
|
|
Existing Security |
Schedule 1.01(f)
|
|
-
|
|
Joint Ventures |
Schedule 1.01(g)
|
|
-
|
|
Potential Disposals |
Schedule 2.01
|
|
-
|
|
Lenders and Commitments |
Schedule 3.26
|
|
-
|
|
Restrictions on Share Transfer |
Schedule 4.02(a)
|
|
-
|
|
Local Counsel |
Schedule 4.02(g)
|
|
-
|
|
Security Filing Offices |
Schedule 4.02(h)
|
|
-
|
|
Mortgage Filing Offices |
EXHIBITS
|
|
|
|
|
Exhibit A
|
|
-
|
|
Form of Administrative Questionnaire |
Exhibit B
|
|
-
|
|
Form of Assignment and Acceptance |
Exhibit C
|
|
-
|
|
Form of Borrowing Request |
Exhibit D
|
|
-
|
|
Guarantee Agreement |
Exhibit E
|
|
-
|
|
Guarantee Agreement (Norway) |
Exhibit F
|
|
-
|
|
Pledge and Security Agreement (Canada) |
Exhibit G
|
|
-
|
|
Pledge and Security Agreement (U.S.) |
Exhibit H
|
|
-
|
|
Share Pledge Agreement |
Exhibit I
|
|
-
|
|
Intercreditor Agreement |
Exhibit J-1
|
|
-
|
|
[Reserved] |
Exhibit J-2
|
|
-
|
|
[Reserved] |
Exhibit K
|
|
-
|
|
Form of Compliance Certificate |
i
CREDIT AGREEMENT dated as of January 12, 2007, as amended and
restated as of July 15, 2010, among CGGVERITAS SERVICES HOLDING (U.S.)
INC. (formerly known as Volnay Acquisition Co. II, as
successor-in-interest to Volnay Acquisition Co. I), a Delaware corporation
(the “Borrower”), COMPAGNIE GÉNÉRALE DE GÉOPHYSIQUE — VERITAS (formerly
known as Compagnie Genérale de Geophysique), a société anonyme
incorporated under the laws of France (registration number 969 202 241 RCS
Paris) (“Parent”), the Lenders (as defined in Article I) and CREDIT SUISSE
AG (formerly known as Credit Suisse), as administrative agent (in such
capacity, the “Administrative Agent”) and as collateral agent (in such
capacity, the “Collateral Agent”) for the Lenders.
Pursuant to the Merger Agreement (such term and each other capitalized term used but not
defined in this introductory statement having the meaning given it in Article I), Volnay
Acquisition Co. I (the “Original Borrower”) merged with and into Veritas DGC Inc., a Delaware
corporation (the “Target”), and the surviving corporation merged with and into the Borrower (such
transactions, collectively, the “Merger”), with (a) each share of common stock of the Target issued
and outstanding (with certain exceptions as set forth in the Merger Agreement) immediately prior to
the Effective Time (as defined in the Merger Agreement) being converted into the right to receive
either 2.0097 American Depositary Shares of Parent or $85.50 in cash (the “Merger Consideration”),
subject to dissenters’ rights, (b) the Borrower surviving as a wholly owned Subsidiary of Parent
and (c) the Borrower assuming by operation of law all of the Obligations of the Original Borrower
under this Agreement and the other Finance Documents.
Pursuant to the Original Credit Agreement, the Borrower requested the Lenders, and the Lenders
agreed, to extend credit in the form of (a) Term Loans on the Closing Date, in an aggregate
principal amount not in excess of $1,000,000,000, and (b) Revolving Loans at any time and from time
to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $140,000,000 (as such amount may be increased as provided herein).
The Borrower requested the Swingline Lender, and the Swingline Lender agreed, to extend credit, at
any time and from time to time prior to the Revolving Credit Maturity Date, in the form of
Swingline Loans, in an aggregate principal amount at any time outstanding not in excess of
$25,000,000. The Borrower requested the Issuing Bank, and the Issuing Bank agreed, to issue
Letters of Credit, in an aggregate face amount at any time outstanding not in excess of
$75,000,000, to support payment obligations incurred in the ordinary course of business by the
Borrower and the other Subsidiaries. The proceeds of the Term Loans were used, together with the
proceeds of the Bridge Facility, solely (a) to pay the cash component of the Merger Consideration,
(b) to pay all amounts due or outstanding under the Existing Credit Agreement and the Existing
Target Credit Agreement, (c) to repurchase Parent’s common or perpetual preferred Equity Interests
(including, without limitation, Parent’s American Depositary Shares) as permitted under Section
6.12(b)(vii), (d) to make cash payments to the holders of the Target Convertible Notes as permitted
under Section 6.12(b)(viii) and (e) to pay related fees and expenses. The proceeds of the
Revolving Loans and the Swingline Loans have been and are to be used solely for general
corporate purposes of the Borrower and the other Subsidiaries.
Pursuant to the Amendment Agreement, the Borrower has requested, and the parties thereto have
agreed, upon the terms and conditions set forth therein, that the Original Credit Agreement be
amended and restated in its entirety as provided herein, effective upon the satisfaction of the
conditions set forth in the Amendment Agreement. Accordingly, the parties hereto agree as follows:
ARTICLE I
SECTION 1.01.
Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.
“Acceptable Bank” shall mean (a) a bank or financial institution which has a rating for its
long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or Fitch
Ratings Ltd or A3 or higher by Xxxxx’x or a comparable rating from an internationally recognized
credit rating agency, or (b) any other bank or financial institution approved by the Administrative
Agent.
“Accounting Reference Date” shall mean December 31.
“Additional Guarantor” shall mean a company which becomes an Additional Guarantor in
accordance with Section 5.21(d) and the terms of the Guarantee Agreement or the Norwegian Guarantee
Agreement, as applicable.
“Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other 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; provided, however, that, for purposes of Section
6.09, the term “Affiliate” shall also include any person that
2
directly or indirectly owns 10% or more of any class of Equity Interests of the person
specified or that is an officer or director of the person specified.
“Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’
Revolving Credit Exposures.
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one-month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that
for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate
determined on such day at approximately 11:00 a.m. (London time) by reference to the British
Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service
selected by the Administrative Agent that has been nominated by the British Bankers’ Association as
an authorized vendor for the purpose of displaying such rates) on such day. If the Administrative
Agent shall have determined (which determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Effective 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 Effective
Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, as the case may be.
“Amendment Agreement” shall mean the Amendment and Restatement Agreement dated as of the
Restatement Effective Date among the Borrower, Parent, the other Obligors party thereto, the
Administrative Agent and the Lenders party thereto.
“Annual Financial Statement” shall mean the financial statements for a Fiscal Year delivered
pursuant to Section 5.01(a).
“Applicable Percentage” shall mean, for any day, (a) with respect to any Eurodollar Tranche
B-2 Term Loan, 4.00%, (b) with respect to any ABR Tranche B-2 Term Loan, 3.00% and (c) with respect
to any Eurodollar Tranche X-0 Xxxx Xxxx, XXX Xxxxxxx X-0 Term Loan, Eurodollar Revolving Loan or
ABR Revolving Loan or the Commitment Fee, the applicable percentage set forth in the applicable
table below under the caption “Eurodollar Spread (Tranche B-1 Term Loans)”, “ABR Spread (Tranche
B-1 Term Loans)”, “Eurodollar Spread (Revolving Loans)”, “ABR Spread (Revolving Loans)” or
“Commitment Fee”, as the case may be, based upon the Corporate Ratings applicable on such date:
3
|
|
|
|
|
|
|
|
|
|
|
Eurodollar Spread |
|
ABR Spread |
|
|
(Tranche X-0 Xxxx |
|
(Xxxxxxx X-0 |
Corporate Ratings |
|
Loans) |
|
Term Loans) |
Category 2
BB or better by S&P and Ba1 or
better by Xxxxx’x |
|
|
2.75 |
% |
|
|
1.75 |
% |
Category 1
All other Corporate Ratings |
|
|
3.00 |
% |
|
|
2.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eurodollar |
|
|
|
|
|
|
Spread |
|
|
|
|
|
|
(Revolving |
|
ABR Spread |
|
Commitment |
Corporate Ratings |
|
Loans) |
|
(Revolving Loans) |
|
Fee |
Category 3
BB+ or better by S&P and
Ba1 or better by Xxxxx’x |
|
|
2.75 |
% |
|
|
1.75 |
% |
|
|
0.375 |
% |
Category 2
BB or better by S&P and
Ba2 or better by Xxxxx’x |
|
|
3.00 |
% |
|
|
2.00 |
% |
|
|
0.50 |
% |
Category 1
All other Corporate Ratings |
|
|
3.25 |
% |
|
|
2.25 |
% |
|
|
0.50 |
% |
Each change in the Applicable Percentage resulting from a change in the Corporate Ratings shall be
effective with respect to all Loans and Letters of Credit outstanding on and after the date on
which such change is first publicly announced by S&P or Xxxxx’x, as applicable, until the date
immediately preceding the next date on which any change in the Corporate Ratings that results in
change in the Applicable Percentage is so announced. Notwithstanding the foregoing, the Corporate
Ratings shall be deemed to be in Category 1 of each table above for purposes of determining the
Applicable Percentage (a) at any time after the occurrence and during the continuance of an Event
of Default and (b) at any time during which either S&P or Xxxxx’x shall not have in effect the
applicable Corporate Rating. If the rating system of S&P or Xxxxx’x shall change, or if either
such rating agency shall cease to be in the business of issuing corporate credit ratings, the
Borrower, Parent and the Majority Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the non-availability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the rating of such rating agency shall be
determined by reference to the rating most recently in effect from such rating agency prior to such
change or cessation.
“Arranger” shall mean each of Credit Suisse Securities (USA) LLC and Royal Bank of Canada, in
their respective capacities as joint lead arrangers of the Facilities and Natixis, BNP Paribas,
Société Générale, Crédit Industriel et Commercial, and Calyon, in their respective capacities as
co-arrangers of the Facilities.
“Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,
condemnation or otherwise) by Parent, the Borrower or any of the other Subsidiaries to any person
other than Parent, the Borrower or any other Obligor of (a) any Equity Interests of any of the
Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of Parent, the
Borrower or any of the other Subsidiaries (other than (i) any Permitted Disposal described in
clause (a), (b), (c), (d) (provided that cash
4
consideration is not received in connection with such Permitted Disposal under such clause
(d)), (e)(i), (e)(ii), (e)(iii), (f), (i), (j), (k), (l) or (o) of the definition thereof and (ii)
any other sale, transfer or other disposition or series of related sales, transfers or other
dispositions, in each case having a value not in excess of $1,500,000).
“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 B or such other
form as shall be approved by the Administrative Agent.
“Auditors” shall mean the external auditors of Parent.
“Authorization” shall mean an authorization, consent, approval, resolution, license,
exemption, filing, notarization or registration.
“Available Amount” shall mean, as of the Closing Date, $0, which amount shall be (a)
increased, on the date of delivery in any Fiscal Year of the Compliance Certificate required by
Section 5.02 setting forth the calculation of Excess Cash Flow for the preceding Fiscal Year (each
such date being an “ECF Prepayment Date”), so long as any prepayment required pursuant to Section
2.13(d) has been made, by an amount equal to the amount of such Excess Cash Flow that is not
required to be used to prepay the Loans (without giving effect to any rejection right on the part
of the Lenders), (b) increased, on the date of receipt by Parent, the Borrower or any other Obligor
of the Net Cash Proceeds of any Equity Issuance, by an amount equal to the amount of such Net Cash
Proceeds that is not required to be used to prepay the Loans (without giving effect to any
rejection right on the part of the Lenders), and (c) reduced (but not below $0) (i) on each ECF
Prepayment Date where Excess Cash Flow for the immediately preceding Fiscal Year is a negative
number, by such amount, and (ii) at the time any Permitted Acquisition, Permitted Investment,
Permitted Loan or Restricted Payment is made pursuant to Section 6.05, 6.06(b), 6.10(b) or
6.12(b)(x), with an amount attributable to the Available Amount, by the portion thereof so
utilized.
“Base Case Model” shall mean the base case model prepared by Parent and delivered to the
Administrative Agent prior to the Closing Date.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, or (b) a Swingline Loan.
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by
the Administrative Agent.
“Bridge Facility” shall mean the credit facility made available to Parent pursuant to the
Bridge Facility Agreement in an aggregate principal amount not to exceed $700,000,000 (or its
equivalent in another currency or currencies).
5
“Bridge Facility Agreement” shall mean the Single Currency Term Facility Agreement dated as of
November 22, 2006, among Parent, the guarantors party thereto, Credit Suisse International, as
arranger, the lenders party thereto and Credit Suisse, London Branch, as agent and as security
agent.
“
Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in
New
York City are authorized or required by law to close;
provided,
however, that when used in
connection with a Eurodollar Loan, the term “
Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank market.
“Capital Expenditures” shall mean investments (other than investments of up to €75,000,000 in
the aggregate made in connection with the Massy Sale and Leaseback) made in multi-client surveys
as such item appears in the consolidated accounts “Document de Référence” plus purchase of tangible
and intangibles or property, plant and equipment as the case may be plus equipment acquired under
capital lease (other than charters of seismic vessels), but excluding in each case any such
expenditure made to restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such property, to the extent
such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds
relating to any such damage, loss, destruction or condemnation.
“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 IFRS, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with IFRS.
“Cash” shall mean, at any time, cash at banks (including short-term deposits) denominated in
any currency and credited to an account in the name of one or more members of the Group with a bank
and to which such member or members of the Group are alone beneficially entitled and provided that
(a) such cash is repayable on demand with or without penalty (except where cash is repayable with a
penalty, such penalty shall be taken into account in determining the amount of such cash), (b)
repayment of such cash is not contingent on the prior discharge of any other indebtedness of any
Group member or of any other person whatsoever or on the satisfaction of any other condition and
(c) such cash is freely transferable to an Obligor.
“Cash Equivalent Investments” shall mean at any time (a) certificates of deposit maturing
within one year after the relevant date of calculation and issued by an Acceptable Bank; (b) any
investment in marketable debt obligations issued or guaranteed by the government of the United
States of America, the United Kingdom, any member state of the European Economic Area or any
Participating Member State or by an instrumentality or agency of any of them having an equivalent
credit rating, maturing within one year after the relevant date of calculation and not convertible
or exchangeable to any other security; (c) commercial paper not convertible or exchangeable to any
other
6
security: (i) for which a recognized trading market exists; (ii) issued by an issuer
incorporated in the United States of America, the United Kingdom, any member state of the European
Economic Area or any Participating Member State; (iii) which matures within one year after the
relevant date of calculation; and (iv) which has a credit rating of either A-1 or higher by S&P or
Fitch Ratings Ltd or P-1 or higher by Xxxxx’x, or, if no rating is available in respect of the
commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit
enhanced debt obligations, an equivalent rating; (d) sterling bills of exchange eligible for
rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialized
equivalent); (e) any investment accessible within 30 days in money market funds which have a credit
rating of either A-1 or higher by S&P or Fitch Rating Ltd or P-1 or higher by Xxxxx’x and which
invest substantially all their assets in securities of the types described in clauses (a) through
(d) above; (f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa
or higher by Xxxxx’x and which have a reset date not more than 90 days from the date of acquisition
thereof; (g) 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; or (h) any other debt security approved by the Majority Lenders, in each case, to which
any member of the Group is beneficially entitled at that time and which is not issued or guaranteed
by any member of the Group or subject to any Security (other than one arising under the Security
Documents).
“CGG Services SA Project” shall mean the reorganization of Parent’s existing services business
by means of asset contributions to CGG Services S.A. (formerly known as CGG Marine S.A.), which
reorganization was completed prior to the Restatement Effective Date.
“CGG
Services Holding Project” shall mean the reorganization of the Group’s services business,
including, without limitation, by means of the transfer of Equity Interests of the relevant members
of the Group from Parent to a new holding company, which shall become an Obligor hereunder.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Closing
Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof
by any Governmental Authority after the Closing Date or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14, 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 Closing Date.
A “Change of Control” shall be deemed to have occurred upon the occurrence of any of the
following: (a) the sale, lease, transfer, conveyance or other disposition (other than by merger or
consolidation), in one or a series of related transactions, of all or substantially all of the
properties or assets of Parent and its Subsidiaries, taken as a whole; (b) the adoption, by
shareholders of Parent, of a voluntary plan relating to the liquidation or dissolution of Parent;
(c) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any person, or persons acting in concert, becomes the
beneficial owner, directly or indirectly through
7
one or more intermediaries, of more than 35% of the voting power of the outstanding voting
shares of Parent; (d) the first day on which more than a majority of the members of the board of
directors of Parent are not Continuing Directors; or (e) the Borrower ceases to be a wholly owned
subsidiary of Parent.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans, Tranche B-1 Term Loans, Tranche B-2 Term
Loans, Swingline Loans or Other Term Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment, Term Loan Commitment, Swingline
Commitment or Incremental Term Loan Commitment.
“Closing Date” shall mean January 12, 2007.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties.
“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit
Commitment, Term Loan Commitment, Swingline Commitment and Incremental Term Loan Commitment.
“Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).
“Compliance Certificate” shall mean a certificate substantially in the form set out in Exhibit
K.
“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of
Parent dated December 2006.
“Continuing Directors” shall mean, as of any date of determination, any member of the board of
directors of Parent who (a) was a member of the board of directors of Parent on the Closing Date or
(b) was nominated for election to the board of directors of Parent with the approval of, or whose
election to the board of directors of Parent was ratified by, at least a majority of the members of
the board of directors of Parent who were members of the board of directors of Parent on the
Closing Date or who were so elected to the board of directors of Parent thereafter.
“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.
“Corporate Ratings” shall mean the corporate rating of Parent by S&P and the corporate family
rating of Parent by Xxxxx’x.
8
“Credit Event” shall have the meaning assigned to such term in Article IV.
“Current Assets” shall mean, at any time, the consolidated current assets (other than Cash and
Cash Equivalent Investments) of Parent and the Subsidiaries.
“Current Liabilities” shall mean, at any time, the consolidated current liabilities of Parent
and the Subsidiaries at such time, but excluding, without duplication, (a) the current portion of
any long-term Indebtedness and (b) outstanding Revolving Loans and Swingline Loans and outstanding
loans under the French Revolving Facility.
“Debt Refinancing Securities” shall mean the debt securities subject to the Engagement Letter.
“Default” shall mean an Event of Default or any event or circumstance specified in Article VII
which would (with the expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of the foregoing) be an Event
of Default.
“Defaulting Lender” shall mean any Lender, as determined by the Administrative Agent, that has
(a) failed to fund any portion of its Revolving Loans or participations in Letters of Credit or
Swingline Loans within three Business Days of the date required to be funded by it hereunder, (b)
notified the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any
Lender in writing that it does not intend to comply with any of its funding obligations under this
Agreement or has made a public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements in which it commits to extend
credit, (c) failed, within three Business Days after request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its obligations to fund
prospective Revolving Loans and participations in then outstanding Letters of Credit and Swingline
Loans, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within three Business Days of the date when due, unless
the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that
has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or
has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment.
“Demand Securities” shall mean the demand securities subject to any Fee Letter.
“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a
9
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in
whole or in part, or requires the payment of any cash dividend or any other scheduled payment
constituting a return of capital, in each case (x) if issued prior to the Restatement Effective
Date, at any time on or prior to the first anniversary of the Tranche B-1 Term Loan Maturity Date
or (y) if issued on or after the Restatement Effective Date, at any time on or prior to the first
anniversary of the Tranche B-2 Term Loan Maturity Date, or (b) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity
Interest referred to in clause (a) above, in each case (x) if issued prior to the Restatement
Effective Date, at any time prior to the first anniversary of the Tranche B-1 Term Loan Maturity
Date or (y) if issued on or after the Restatement Effective Date, at any time on or prior to the
first anniversary of the Tranche B-2 Term Loan Maturity Date.
“dollars” or “$” shall mean lawful money of the United States of America.
“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.
“EBITDA” shall mean operating income (loss) of Parent and the Subsidiaries determined on a
consolidated basis in accordance with IFRS, excluding non-recurring revenues (expenses) plus
depreciation, amortization, additions (deductions) to valuation allowances of assets and dividends
received from companies accounted for by Parent under the equity method (it being understood that
EBITDA is referred to as “ORBDA” in the public filings and releases of Parent).
“Engagement Letter” shall mean the engagement letter dated September 4, 2006, between Parent
and the Manager.
“Environmental Claim” shall mean any claim, proceeding, formal notice or investigation by any
person in respect of any Environmental Law.
“Environmental Law” shall mean any applicable law or regulation which relates to (a) the
pollution or protection of the environment; (b) harm to or the protection of human health; (c) the
conditions of the workplace; or (d) any emission or substance capable of causing harm to any living
organism or the environment.
“Environmental Permits” shall mean any permit and other Authorization and the filing of any
notification, report or assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties owned or used by any member
of the Group.
“Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
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“Equity Issuance” shall mean any issuance or sale by Parent, the Borrower or any of their
respective subsidiaries of any Equity Interests of Parent, the Borrower or any such subsidiary, as
applicable, except in each case for (a) any issuance or sale to Parent, the Borrower or any
Subsidiary and (b) any issuance of directors’ qualifying shares.
“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 any U.S. Group Member, 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) and any failure by any
Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or
Section 302 of ERISA) applicable to such Plan, whether or not waived, (c) the filing pursuant to
Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, (d) the incurrence by any U.S. Group Member or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of
any Plan or the withdrawal or partial withdrawal of any U.S. Group Member or any of its ERISA
Affiliates from any Plan or Multiemployer Plan, (e) a determination that any Plan is, or is
expected to be, in “at-risk” status (within the meaning of Title IV of ERISA), (f) the receipt by
any U.S. Group Member 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, (g) 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, (h) the receipt by
any U.S. Group Member or any of its ERISA Affiliates of any notice, or the receipt by any
Multiemployer Plan from any U.S. Group Member 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 (or
that a multiemployer plan is in endangered or critical status within the meaning of Section 305 of
ERISA), (i) the occurrence of a “prohibited transaction” with respect to which any U.S. Group
Member or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of
the Code) or with respect to which any U.S. Group Member or any such Subsidiary could otherwise be
liable, or (j) any other event or condition with respect to a Plan or Multiemployer Plan that could
result in liability of the Borrower or any Subsidiary.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
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“Event of Default” shall mean any event or circumstance specified as such in Article VII.
“Excess Cash Flow” shall mean, for any Fiscal Year of Parent, the excess of (a) the sum,
without duplication, of (i) EBITDA for such Fiscal Year and (ii) reductions to noncash working
capital of Parent and the Subsidiaries for such Fiscal Year (i.e., the decrease, if any, in Current
Assets minus Current Liabilities from the beginning to the end of such Fiscal Year) over (b) the
sum, without duplication, of (i) the amount of any Taxes payable in cash by Parent and the
Subsidiaries with respect to such Fiscal Year, (ii) Total Interest Costs for such Fiscal Year paid
in cash, (iii) Capital Expenditures during such Fiscal Year, except to the extent financed with the
proceeds of Financial Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or
other proceeds that would not be included in EBITDA, (iv) permanent repayments of Financial
Indebtedness (other than (x) mandatory prepayments of Loans under Section 2.13 and (y) Voluntary
Prepayments) made in cash by Parent and the Subsidiaries during such Fiscal Year, but only to the
extent that the Financial Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and
such prepayments do not occur in connection with a refinancing of all or any portion of such
Financial Indebtedness, (v) without duplication of amounts reflected in Total Interest Costs for
such Fiscal Year, all cash payments made pursuant to Treasury Transactions during such Fiscal Year,
(vi) Permitted Acquisitions made in cash by Parent and the Subsidiaries during such Fiscal Year
(except to the extent amounts used to fund the same were attributable to the Available Amount),
(vii) Restricted Payments made in cash in accordance with Section 6.12 by Parent and the
Subsidiaries during such Fiscal Year (except to the extent amounts used to fund the same were
attributable to the Available Amount) and (viii) additions to noncash working capital for such
Fiscal Year (i.e., the increase, if any, in Current Assets minus Current Liabilities from the
beginning to the end of such Fiscal Year).
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income 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 any other jurisdiction described in clause (a) above and (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.21(a)), any withholding tax that is imposed on amounts payable to such Foreign Lender
pursuant to any law (including FATCA) in effect on (and, in the case of FATCA, including any
regulations or official interpretations thereof issued after) the date on which such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure or inability to comply with the documentation requirements set forth in
Section 2.20(e) or failure to notify the Borrower that any information previously provided in
complying with such requirements is or has become incorrect, 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
12
receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.20(a).
“Existing Bond Indenture” means the indenture dated April 28, 2005, among Parent, as issuer,
certain of its Affiliates, as guarantors, and JPMorgan Chase Bank, National Association, as
trustee, pursuant to which the Existing Bonds were issued, as amended, restated, supplemented or
otherwise modified from time to time.
“Existing Bonds” shall mean the existing 71/2% Senior Notes due 2015 of Parent.
“Existing Credit Agreement” shall mean the Revolving Credit Facility Agreement dated March 12,
2004, among Parent, certain Subsidiaries of Parent, the lenders from time to time party thereto and
Natexis Banques Populaires, as arranger and agent.
“Existing Target Credit Agreement” shall mean the Credit Agreement dated as of February 6,
2004, among the Target, Xxxxx Fargo Bank, National Association, as U.S. agent, and certain other
parties thereto.
“Facilities” shall mean the revolving credit, swingline, letter of credit and term loan
facilities provided in this Agreement.
“FATCA” means Sections 1741 through 1474 of the Code, as in effect on the date hereof.
“
Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
“Fee Letter” shall mean the fee letter dated January 12, 2007, between the Borrower and the
Administrative Agent, and any other agreement entered into in connection with the Facilities,
setting out any of the fees referred to in Section 2.05.
“Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the L/C Participation
Fees and the Issuing Bank Fees.
“Finance Document” shall mean this Agreement, the Amendment Agreement, the Letters of Credit,
any Compliance Certificate, any Fee Letter, any Security Document, any Borrowing Request, any
Incremental Assumption Agreement, the promissory notes, if any, executed and delivered pursuant to
Section 2.04(e) and any other document designated as a “Finance Document” by the Administrative
Agent and Parent.
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“Finance Party” shall mean the Administrative Agent, the Collateral Agent, an Arranger or a
Lender.
“Financial Indebtedness” shall mean any indebtedness for or in respect of: (a) moneys
borrowed; (b) any amount raised by acceptance under any acceptance credit facility; (c) any amount
raised pursuant to any note purchase facility or the issue of bonds, notes, debentures or any
similar instrument; (d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with IFRS, be treated as a finance or capital lease; (e)
receivables sold or discounted (other than any receivables to the extent they are sold on a
non-recourse basis); (f) any amount raised under any other transaction (including any forward sale
or purchase agreement) having the commercial effect of a borrowing; (g) any derivative transaction
entered into in connection with protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only the marked to market value
shall be taken into account); (h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank
or financial institution; (i) all obligations 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); and (j) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in clauses (a) to (i) above; provided that any
indebtedness for or in respect of any Permitted Guarantee shall not constitute “Financial
Indebtedness” hereunder to the extent such indebtedness is not due and payable.
“Financial Officer” of any person shall mean the chief financial officer, deputy chief
financial officer, principal accounting officer, treasurer or controller of such person or, in the
case of a Foreign Obligor without any of the aforementioned officers, a director or officer of such
person reasonably satisfactory to the Administrative Agent.
“Financial Quarter” shall mean the period commencing on the day after one Quarter Date and
ending on the next Quarter Date.
“Fiscal Year” shall mean a calendar year ending on December 31.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“Foreign Obligor” shall mean any Obligor that is not a U.S. Person.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“French GAAP” shall mean generally accepted accounting principles in France.
14
“French Revolving Facility” shall mean the credit facility made available to Parent pursuant
to the French Revolving Facility Agreement in an aggregate principal amount not to exceed
$200,000,000 (or its equivalent in another currency or currencies).
“French Revolving Facility Agreement” shall mean the Revolving Credit Agreement dated as of
February 7, 2007, among Parent, the lenders party thereto, Natixis, as facility agent, and Credit
Suisse AG (formerly known as Credit Suisse), as collateral agent.
“French Revolving Facility Security Documents” shall mean all security documents entered into
by any Obligor creating or expressed to create any Security over all or any part of its assets in
respect of the obligations of any of the Obligors in connection with the French Revolving Facility
Agreement.
“Government Authority” shall mean the government of France, the United States or any other
nation, or any state, regional or local political subdivision or department thereof, and any other
governmental or regulatory agency, authority, body, commission, central bank, board, bureau, organ,
court, instrumentality or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government, in each case
whether federal, state, local or foreign (including supra-national bodies such as the European
Union or the European Central Bank).
“Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).
“Group” shall mean Parent and its Subsidiaries, including, on and after the Closing Date, the
Target Group.
“Group Restructuring” shall mean the reorganization of the Group, including the transfer
within the Group of Equity Interests of Domestic Subsidiaries and Foreign Subsidiaries.
“Guarantee Agreement” shall mean the Guarantee Agreement, dated as of the Closing Date and
attached as Exhibit D, among Parent, the Borrower, the other Subsidiaries party thereto and the
Collateral Agent for the benefit of the Secured Parties.
“Guarantor” shall mean an Original Guarantor or an Additional Guarantor, unless it has ceased
to be a Guarantor in accordance with the terms of the Guarantee Agreement or the Norwegian
Guarantee Agreement, as applicable.
“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 and (b) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
15
“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.
“IFRS” shall mean International Financial Reporting Standards issued by the International
Accounting Standards Board and adopted by the European Union.
“Incremental Amount” shall mean, at any time, the excess, if any, of (a) $300,000,000 over (b)
the aggregate amount of all Incremental Term Loan Commitments and additional Revolving Credit
Commitments established after the Closing Date and prior to such time pursuant to Section 2.24.
“Incremental Assumption Agreement” shall mean an Incremental Assumption Agreement in form and
substance reasonably satisfactory to the Administrative Agent, among the Borrower, the
Administrative Agent and one or more Incremental Term Lenders or persons who will become Revolving
Credit Lenders.
“Incremental Term Borrowing” shall mean a Borrowing comprised of Incremental Term Loans.
“Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an
outstanding Incremental Term Loan.
“Incremental Term Loan Commitment” shall mean the commitment of any Lender, established
pursuant to Section 2.24, to make Incremental Term Loans to the Borrower.
“Incremental Term Loan Maturity Date” shall mean the final maturity date of any Incremental
Term Loan, as set forth in the applicable Incremental Assumption Agreement.
“Incremental Term Loans” shall mean Term Loans made to the Borrower pursuant to Section
2.01(b). Incremental Term Loans may be made in the form of additional Term Loans or, to the extent
permitted by Section 2.24 and provided for in the relevant Incremental Assumption Agreement, Other
Term Loans.
“Incremental Term Loan Repayment Dates” shall mean the dates scheduled for the repayment of
principal of any Incremental Term Loan, as set forth in the applicable Incremental Assumption
Agreement.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
“Intellectual Property” shall mean (a) any patents, trademarks, service marks, designs,
business names, copyrights, design rights, moral rights, inventions, confidential information,
know-how and other intellectual property rights and interests, whether registered or unregistered;
and (b) the benefit of all applications and rights to use such assets of each member of the Group.
16
“Intercreditor Agreement” shall mean the Intercreditor Agreement dated as of the Closing Date
and attached as Exhibit I, between, among others, the Obligors and Credit Suisse AG, as collateral
agent for the French First Lien Lenders and as collateral agent for the U.S. First Lien Lenders
(each as defined therein).
“Interest Payment Date” shall mean (a) with respect to any ABR Loan (including any Swingline
Loan), the last Business Day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.
“Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
(and, if available to all of the applicable Lenders, 9 or 12 months) thereafter, as the Borrower
may elect; provided, however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.
“Issuing Bank” shall mean, as the context may require, (a) Credit Suisse AG, acting through
any of its Affiliates or branches, in its capacity as the issuer of Letters of Credit hereunder and
(b) any other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with
respect to Letters of Credit issued by such Lender. The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates or branches of the Issuing
Bank, in which case the term “Issuing Bank” shall include any such Affiliate or branch with respect
to Letters of Credit issued by such Affiliate or branch.
“Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).
“Joint Venture” shall mean any joint venture entity, whether a company, unincorporated firm,
undertaking, association, joint venture or partnership or any other entity.
“L/C Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit
pursuant to Section 2.23.
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“L/C Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a
Letter of Credit.
“L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate principal amount of all L/C
Disbursements that have not yet been reimbursed at such time. The L/C Exposure of any Revolving
Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
“L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).
“Legal Reservations” shall mean (a) the principle that equitable remedies may be granted or
refused at the discretion of a court and the limitation of enforcement by laws relating to
insolvency, reorganization and other laws generally affecting the rights of creditors; (b) the time
barring of claims under any statute of limitations and defenses of set-off or counterclaim; and (c)
similar principles, rights and defenses under the laws of any Relevant Jurisdiction.
“Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that
has become a party hereto pursuant to an Assignment and Acceptance. Unless the context clearly
indicates otherwise, the term “Lenders” shall include the Swingline Lender.
“Letter of Credit” shall mean any Letter of Credit issued under Section 2.23.
“LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the commencement of such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth
by any service selected by the Administrative Agent that has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the
interest rate per annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period to major banks in
the London interbank market in London, England by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest
Period; provided, further that notwithstanding the foregoing, at no time shall the LIBO Rate be
less than 1.50%.
“Loans” shall mean the Revolving Loans, the Tranche B-1 Term Loans, the Tranche B-2 Term Loans
and the Swingline Loans.
18
“Majority Lenders” shall mean, at any time, Lenders having Loans (excluding Swingline Loans),
L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments
representing more than 50% of the sum of all Loans outstanding (excluding Swingline Loans), L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments at
such time; provided that the Revolving Loans, L/C Exposure, Swingline Exposure and unused Revolving
Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the
Majority Lenders at any time.
“Manager” shall mean Credit Suisse Securities (Europe) Limited, as Manager of an offering or
offerings of Debt Refinancing Securities.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“Massy Sale and Leaseback” shall mean (i) the sale by Parent of its former headquarters in
Massy, France and (ii) the leaseback by CGGVeritas Services SA (formerly CGG Services SA) of its
principal headquarters in Massy, France.
“Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Group taken as a whole; (b) the
ability of the Obligors, taken as a whole, to perform their obligations under the Finance
Documents; or (c) the validity or enforceability of, or the effectiveness or ranking of any
Security granted or purporting to be granted pursuant to any of, the Finance Documents or the
rights or remedies of any Finance Party under any of the Finance Documents.
“Material Subsidiary” shall mean, at any time, a Subsidiary of Parent whose total assets,
revenues and/or EBITDA then equal or exceed, individually, 10% (or, solely for purposes of Section
5.21(d) hereof, 5%) of the total assets, revenues and/or EBITDA of the Group; provided that if at
any time the total assets, revenues and/or EBITDA of such individual Material Subsidiaries do not
equal or exceed 85% of the total assets, revenues and/or EBITDA of the Group, Parent shall
designate additional Subsidiaries as Material Subsidiaries such that the total assets, revenues
and/or EBITDA of all Material Subsidiaries, collectively, equal or exceed 85% of the total assets,
revenues and/or EBITDA of the Group. For purposes of this definition (a) the consolidated total
assets, revenues and/or EBITDA of a Subsidiary of Parent will be determined from its financial
statements (unconsolidated if it has subsidiaries) upon which the latest audited financial
statements of the Group have been based; (b) if a Subsidiary of Parent becomes a member of the
Group after the date on which the latest audited financial statements of the Group have been
prepared, the consolidated total assets, revenues and/or EBITDA of that Subsidiary will be
determined from its latest financial statements; (c) the consolidated total assets, revenues and/or
EBITDA of the Group will be determined from its latest audited financial statements, adjusted
(where appropriate) to reflect the total assets, revenues and/or EBITDA of any company or business
subsequently acquired or disposed of; and (d) if a Material Subsidiary disposes of all or
substantially all of its assets to another Subsidiary of Parent, it will immediately cease to be a
Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a
Material Subsidiary;
19
the subsequent financial statements of those Subsidiaries and the Group will be used to
determine whether those Subsidiaries are Material Subsidiaries or not. If there is a dispute as to
whether or not a company is a Material Subsidiary, a certificate of the Auditors will be, in the
absence of manifest error, conclusive.
“Merger” shall have the meaning assigned to such term in the preliminary statement.
“Merger Agreement” shall mean the Agreement and Plan of Merger among Parent, the Target, the
Original Borrower and the Borrower, dated September 4, 2006.
“Merger Documents” shall mean the Merger Agreement and any other document or agreement
executed in connection therewith.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc., or any successor thereto.
“Mortgaged Properties” shall mean, initially, the owned real properties and leasehold and
subleasehold interests of the Obligors specified on Schedule 1.01(c), and shall include each other
parcel of real property and improvements thereto with respect to which a Mortgage is granted
pursuant to Section 5.21.
“Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of
leases and rents, modifications and other security documents delivered pursuant to clause (i) of
Section 4.02(h) of the Original Credit Agreement or pursuant to Section 5.21, each in form and
substance reasonably satisfactory to the Collateral Agent.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Cash Proceeds” shall mean (a) with respect to any Asset Sale, the cash proceeds
(including cash proceeds subsequently received (as and when received) in respect of noncash
consideration initially received), net of (i) selling expenses (including reasonable broker’s fees
or commissions, legal fees, transfer and similar taxes and Parent’s good faith estimate of income
taxes, VAT and any other taxes paid or payable in connection with such sale), (ii) amounts provided
as a reserve, in accordance with IFRS, against any liabilities under any indemnification
obligations or purchase price adjustment associated with such Asset Sale (provided that, to the
extent and at the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds) and (iii) the principal amount, premium or penalty, if any, interest
and other amounts on any Financial Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such
Financial Indebtedness assumed by the purchaser of such asset); provided, however, that, if (x)
Parent shall deliver a certificate of a Financial Officer to the Administrative Agent at the time
of receipt thereof setting forth Parent’s intent to reinvest such proceeds in productive assets of
a kind then used or usable in the business of Parent and its Subsidiaries (A) within six months of
receipt of such proceeds or (B) pursuant to an agreement entered into within six months of such
Asset Sale, provided that such amounts are actually invested within 12 months of such Asset Sale
and (y) no Default or
20
Event of Default shall have occurred and shall be continuing at the time of such certificate
or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net
Cash Proceeds except to the extent not so used at the end of such six- or 12-month period, as
applicable, at which time such proceeds shall be deemed to be Net Cash Proceeds; provided further,
that no such proceeds shall constitute Net Cash Proceeds until the aggregate amount of all such
proceeds shall exceed $15,000,000; and (b) with respect to any issuance or incurrence of Financial
Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all taxes and customary
fees, commissions, costs and other expenses incurred in connection therewith.
“Norwegian Guarantee Agreement” shall mean the Guarantee Agreement (Norway) dated as of the
Closing Date and attached as Exhibit E, between CGG Marine Resources Norge AS and the Collateral
Agent for the benefit of the Secured Parties.
“Not Otherwise Applied” shall mean, with reference to any amount of the Available Amount that
is proposed to be applied to a particular use or transaction, that such amount has not previously
been (and is not simultaneously being) applied to anything other than that such particular use or
transaction.
“Obligations” shall mean all obligations defined as “Obligations” in the Guarantee Agreement
and the other Security Documents.
“Obligors” shall mean the Borrower and the Guarantors.
“Original Credit Agreement” shall mean the Credit Agreement dated as of January 12, 2007, by
and among the Borrower, Parent, the Lenders, the Administrative Agent and the Collateral Agent, as
amended prior to the Restatement Effective Date.
“Original Financial Statements” shall mean (a) IFRS (French GAAP in the case of the 2003
Fiscal Year) with a U.S. GAAP reconciliation (or, in the case of the Target Group, U.S. GAAP)
audited consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of Parent for the 2003, 2004 and 2005 Fiscal Years and for the Target Group for the 2004,
2005 and 2006 Fiscal Years; (b) (i) IFRS with a U.S. GAAP reconciliation (or, in the case of the
Target Group, U.S. GAAP) unaudited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows of each of Parent and the Target Group for each such entity’s
subsequent fiscal quarter ended 45 days before the Closing Date, which financial statements shall
not be materially inconsistent with the financial statements or forecasts previously provided to
the Administrative Agent and (ii) statements showing (x) the ratio of (A) EBITDA less Capital
Expenditures to (B) Total Interest Costs and (y) the Total Leverage Ratio, in each case, measured
quarterly on a rolling 12 month basis, and total Capital Expenditures during a rolling 12 month
period of each of Parent and the Target Group, in each case, ended not earlier than 30 days before
the Closing Date; and (c) in relation to any other Obligor, its audited financial statements
delivered to the Administrative Agent as required by Section 5.01.
“Original Obligors” shall mean the Borrower and the Original Guarantors.
21
“Original Guarantor” shall mean a company listed as an original guarantor on Schedule 1.01(b).
“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 Finance
Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Finance Document.
“Other Term Loans” shall have the meaning assigned to such term in Section 2.24.
“Participating Member State” shall mean any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Perfection Certificate” shall mean the Perfection Certificate substantially in the form of
Exhibit B to the Pledge and Security Agreement (U.S.).
“Permitted Acquisition” shall mean (a) the Merger; (b) an acquisition by way of merger
provided that the merger is permitted under clause (c) of the definition of Permitted Merger; (c)
the acquisition of, or investment in, any share or interest in any Permitted Joint Venture or
Permitted Investment, provided that, (i) other than as provided in subclause (ii) below, the
aggregate amount of all such acquisitions and investments shall not exceed $75,000,000 from and
after the Closing Date, and (ii) from and after the time at which $75,000,000 of acquisitions and
investments permitted by this clause (c) have been made, the aggregate amount of any other
acquisitions or investments permitted by this clause (c) shall be limited to the Available Amount
that is Not Otherwise Applied at the time such transaction is consummated (it being understood that
a single transaction may utilize amounts available, if any, under both subclause (i) and subclause
(ii) of this clause (c)); (d) the acquisition of, or investment in, any share or interest in the
entities set forth on Schedule 1.01(f), in each case pursuant to the joint venture agreement
applicable thereto, as in effect on the Closing Date; (e) the acquisition by a member of the Group
of any share, interest or asset sold, leased, transferred or otherwise disposed of by another
member of the Group in circumstances constituting a Permitted Disposal; (f) the acquisition by a
member of the Group of Cash Equivalent Investments; (g) an acquisition by a member of the Group to
which the Administrative Agent (on the instructions of the Majority Lenders) shall have given prior
written consent; (h) the receipt by a member of the Group of any non-cash consideration from a
Qualifying Business Disposal; (i) pursuant to clause (e) of the definition of Permitted Share
Issue; (j) an acquisition that is a Qualifying Acquisition or (k) the receipt of equity, joint
venture interests or other consideration pursuant to clause (d) of the definition of “Permitted
Disposal”.
“Permitted Disposal” shall mean any sale, lease, transfer or other disposal (a) made in the
ordinary course of business of the disposing entity or of a type described in
22
clause (ii) of the parenthetical set forth in clause (b) of the definition of the term “Asset
Sale”; (b) of access to multi-client data libraries owned by any member of the Group, but not
including the sale, lease, transfer or other disposal of the ownership interests therein; (c) of
assets in exchange for other assets comparable or superior as to type, value and quality; (d) the
sale, transfer or disposal of assets by Parent or any member of the Group consisting of up to four
seismic vessels (together with any streamers used in connection therewith), of which no more than
three can be 3D seismic vessels, in exchange for equity, joint venture interests or other
consideration; (e) made by (i) an Obligor to another Obligor or (ii) a non-Obligor to another
non-Obligor or (iii) a non-Obligor to an Obligor or (iv) an Obligor to a non-Obligor subject to a
maximum aggregate amount for all such disposals under this sub-clause (iv) of $75,000,000 during
the term of the Facilities; (f) constituting the creation of any Permitted Security; (g) to which
the Administrative Agent (on the instructions of the Majority Lenders) shall have given prior
written consent; (h) (i) with respect to assets that constitute Collateral, where the higher of the
market value or consideration receivable (when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or other disposal by the Group in any
related transaction) does not exceed $75,000,000 per Fiscal Year (or its equivalent in another
currency or currencies), and (ii) with respect to assets that do not constitute Collateral, where
the higher of the market value or consideration receivable (when aggregated with the higher of the
market value or consideration receivable for any other sale, lease, transfer or other disposal by
the Group in any related transaction) does not exceed, $100,000,000 per Fiscal Year (or its
equivalent in another currency or currencies), provided that the portion (if any) of the amounts
set forth in the foregoing clauses (i) and (ii) not used in any Fiscal Year may be carried forward
to and used in the immediately succeeding Fiscal Year; (i) of surplus, obsolete or worn out
equipment; (j) of notes or accounts receivable that, in order to resolve disputes that occur in the
ordinary course of business, an Obligor may discount or otherwise compromise for less than the face
value thereof; (k) of Cash or Cash Equivalent Investments; (l) of Equity Interests by an Obligor in
any of its Subsidiaries in order to qualify members of the board of directors (or similar governing
body) of the Subsidiary, if required by applicable law; (m) to the extent (i) required by a
Government Authority or (ii) pursuant to the Synergies Implementation Plan, in each case in
connection with the Merger; (n) of those assets and/or Equity Interests set forth on Schedule
1.01(g); (o) in connection with the Massy Sale and Leaseback; (p) of the Equity Interests of Sercel
Holding (including, without limitation, by way of a spin-off or initial public offering thereof),
provided that such transaction results in a release of the relevant Sercel Companies as guarantors
of the Existing Bonds pursuant to Section 10.04 of the Existing Bond Indenture and as Guarantors
hereunder, and provided further that, in the case of a spin-off, such transaction satisfies the
requirements of Section 6.12(b); (q) of assets and/or Equity Interests (including, without
limitation, intercompany notes) pursuant to the CGG Services SA Project, the CGG Services Holding
Project and the Group Restructuring; (r) constituting a Qualifying Business Disposal; or (s)
pursuant to clause (e) of the definition of Permitted Share Issue.
“Permitted Financial Indebtedness” shall mean (a) any Financial Indebtedness arising under any
Finance Document; (b) any Financial Indebtedness arising under the French Revolving Facility; (c)
any Permitted Guarantee; (d) any Financial Indebtedness
23
permitted under Section 6.16; (e) any Financial Indebtedness arising under or as a result of a
Permitted Joint Venture, provided that the amount of such Financial Indebtedness that is recourse
to Parent or any Subsidiary shall not exceed $100,000,000 (or its equivalent in another currency or
currencies) at any one time outstanding; (f) any Financial Indebtedness incurred by a member of the
Group to which the Administrative Agent (on the instructions of the Majority Lenders) shall have
given prior written consent; (g) any Financial Indebtedness arising under or as a result of (i) a
finance or capital lease, or purchase money Financial Indebtedness incurred by Parent or any
Subsidiary prior to or within 270 days after the acquisition, lease or improvement of an asset
permitted under this Agreement in order to finance such acquisition or improvement, and any
Permitted Refinancing Indebtedness in respect thereof, the aggregate principal amount of which when
aggregated with the Financial Indebtedness under each other finance or capital lease or purchase
money Financial Indebtedness entered into by members of the Group does not at any one time exceed
$250,000,000 (or its equivalent in another currency or currencies); (ii) the Massy Sale and
Leaseback; and (iii) any vessel charter of the Target being treated as a finance or capital lease
under IFRS; (h) the Existing Bonds; (i) the Debt Refinancing Securities and any Demand Securities;
(j) any Financial Indebtedness listed in Schedule 1.01(d); (k) any Financial Indebtedness incurred
by any Obligor not falling within clauses (a) to (g) above, the aggregate outstanding principal
amount of which does not at any one time exceed the greater of (i) $250,000,000 (or its equivalent
in another currency or currencies) and (ii) 5% of the total assets of the Group, in each case less
the total amount of Permitted Guarantees issued in favor of non-Obligors pursuant to clause (d) of
the definition thereof; (l) any Permitted Refinancing Indebtedness; (m) any Permitted Loan falling
within clause (b) of the definition of Permitted Loan; (n) the Target Convertible Notes; (o) any
Financial Indebtedness not exceeding $30,000,000 arising in connection with the capitalization of
the charter for and/or the acquisition of the vessel Alizé and/or the consolidation of Geomar with
the Group under IFRS; (p) any Financial Indebtedness incurred to finance a Permitted Acquisition,
provided that (i) the Total Leverage Ratio calculated on a pro forma basis after giving effect to
such Permitted Acquisition and the incurrence of any such Financial Indebtedness under this clause
(p) does not exceed the lesser of (A) 2.00 to 1.00 and (B) the ratio for the most recently ended
Relevant Period set forth in Section 6.02(b) and (ii) such Financial Indebtedness is pari passu
with or junior to the Financial Indebtedness hereunder in right of payment; (q) any unsecured
Financial Indebtedness, provided that (i) the Total Leverage Ratio calculated on a pro forma basis
after giving effect to the incurrence of any such Financial Indebtedness under this clause (q) does
not exceed the lesser of (A) 2.00 to 1.00 and (B) the ratio for the most recently ended Relevant
Period set forth in Section 6.02(b) and (ii) any such Financial Indebtedness incurred under this
clause (q) (w) matures (or becomes mandatorily redeemable at the option of the holder thereof) no
earlier than (i) if incurred prior to the Restatement Effective Date, six months after the Tranche
B-1 Term Loan Maturity Date, and (ii) if incurred on or after the Restatement Effective Date, six
months after the Tranche B-2 Term Loan Maturity Date, (x) requires no scheduled payment of
principal (or other scheduled payment constituting a return of capital) prior to its maturity, (y)
does not require Parent, the Borrower or any Subsidiary to maintain any specified financial
condition (other than as a condition to the taking of certain actions) and (z) contains other
24
provisions that are reasonably satisfactory to the Administrative Agent; (r) Financial
Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or
consolidated with the Borrower or any Subsidiary after the Closing Date and Financial Indebtedness
assumed in connection with the acquisition of assets, which Financial Indebtedness in each case,
exists at the time of such acquisition, merger or consolidation and is not created in contemplation
of such event and where such acquisition, merger or consolidation is permitted by this Agreement,
and any Permitted Refinancing Indebtedness incurred to refinance such Financial Indebtedness, the
aggregate outstanding principal amount of which does not at any one time exceed $200,000,000 (or
its equivalent in another currency or currencies); or (s) any Financial Indebtedness not falling
within clauses (a) to (g) above and incurred by any members of the Group that are not Obligors, the
aggregate outstanding principal amount of which does not at any one time exceed the greater of (i)
$250,000,000 (or its equivalent in another currency or currencies) and (ii) 5% of the total assets
of the Group, in each case less the total amount of the Permitted Guarantees issued pursuant to
clause (f) of the definition thereof.
“Permitted Guarantee” shall mean (a) any guarantee arising under the Finance Documents; (b)
any guarantee arising under the French Revolving Facility, the Debt Refinancing Securities, the
Demand Securities, Permitted Financial Indebtedness incurred under clause (p) of the definition
thereof or any Permitted Refinancing Indebtedness in respect thereof; (c) any guarantee issued by a
member of the Group in the ordinary course of business and not in respect of Financial
Indebtedness, including for the avoidance of doubt, any guarantee given to ship-managers or
ship-owners in relation to vessel charter contracts in the ordinary course of business; (d) any
guarantee issued by a member of the Group in respect of the Financial Indebtedness of another
member of the Group; provided that the aggregate outstanding amount of guarantees issued after the
Closing Date by Obligors in respect of Financial Indebtedness of members of the Group that are not
Obligors shall not exceed the greater of (i) $250,000,000 (or its equivalent in another currency or
currencies) and (ii) 5% of the total assets of the Group, in each case less the total amount of
Permitted Financial Indebtedness incurred under clause (k) of the definition thereof; (e) any
guarantee or indemnity or liability to which the Administrative Agent (acting on the instructions
of the Majority Lenders) has consented in writing; or (f) all guarantees (other than those
permitted pursuant to clauses (a) to (e) above) issued by members of the Group that are not
Obligors the aggregate outstanding amount of which does not exceed the greater of (i) $250,000,000
(or its equivalent in another currency or currencies) and (ii) 5% of the total assets of the Group,
in each case less the total amount of Permitted Financial Indebtedness incurred under clause (s) of
the definition thereof.
“Permitted Investment” shall mean the acquisition of or investment in any Equity Interest in
any company, business, person, partnership or similar entity that Parent has recorded or designated
as such to the Administrative Agent in writing, provided that (a) other than as provided in clause
(b) below, the aggregate net expenditures in all such acquisitions and investments made by members
of the Group shall not exceed $50,000,000 (or its equivalent in another currency or currencies)
from and after the Closing Date, and (b) from and after the time at which $50,000,000 of such net
expenditures have been made, the aggregate net expenditures in any other such acquisitions and
investments made by members of the Group shall not exceed the
25
Available Amount that is Not Otherwise Applied at the time such transaction is consummated (it
being understood that a single transaction may utilize amounts available, if any, under both clause
(a) and clause (b) above).
“Permitted Joint Venture” shall mean (a) any Joint Venture listed on Schedule 1.01(f); (b) any
Joint Venture to which the Administrative Agent (acting on the instructions of the Majority
Lenders) has given prior written consent; or (c) any Joint Venture where (i) no Default is
continuing on the date of the acquisition of or investment in, or transfer or loan to, or
guarantee, Security or Quasi-Security for the obligations of, the Joint Venture or would occur as a
result of the acquisition of or investment in, or transfer or loan to, or guarantee, Security or
Quasi-Security for the obligations of, a Joint Venture; (ii) the Joint Venture carries on, or is, a
business (x) substantially the same as that carried on by the Group or (y) providing services or
software products to the oil and gas industry or manufacturing equipment for use by the oil and gas
industry (or any business that is reasonably complementary or related thereto); and (iii) the Joint
Venture does not have any material contingent off-balance sheet, environmental, litigation or other
liability except to the extent for which adequate reserves are being maintained in accordance with
IFRS and/or in respect of which the relevant vendor (if any) has indemnified that member of the
Group.
“Permitted Loan” shall mean (a) any loan made by a member of the Group in the ordinary course
of business (in the case of loans and advances of the type described in clause (d) of this
definition, subject to the limitations set forth in such clause); (b) any loan made by a member of
the Group to another member of the Group; provided that the aggregate amount of loans made after
the Closing Date by Obligors to members of the Group that are not Obligors (determined without
regard to any write-downs or write-offs of such loans) shall not exceed $300,000,000 at any time
outstanding less the total amount of cash and non-cash consideration paid for Equity Interests
issued pursuant to clause (e)(vi) of the definition of Permitted Share Issue (to the extent such
Equity Interests were not issued to capitalize loans existing on the Closing Date); (c) any loan
with respect to which the Administrative Agent (acting on the instructions of the Majority Lenders)
shall have given prior written consent; (d) loans or advances to officers, directors and employees
of Parent or any member of the Group made in the ordinary course of business and consistent with
past practices of Parent and the Group (including, without limitation, portage) in an aggregate
amount not to exceed $5,000,000 outstanding at any one time; (e) any loans and credits (other than
those permitted pursuant to clauses (a) to (d) above) made by a member of the Group, provided that
(i) other than as provided in subclause (i) below, the aggregate amount of all such loans and
credits shall not exceed $10,000,000 (or the equivalent of such sum in another currency or
currencies) at any one time outstanding, and (ii) at any time at which $10,000,000 or more of loans
and credits permitted by this clause (e) are outstanding, the aggregate amount of any other loans
and credits permitted by this clause (e) shall not exceed the Available Amount that is Not
Otherwise Applied at the time such transaction is consummated (it being understood that a single
transaction may utilize amounts available, if any, under both subclause (i) and subclause (ii) of
this clause (e)).
26
“Permitted Merger” shall mean (a) the Merger; (b) an acquisition or disposal by way of merger
provided that the acquisition or disposal is a Permitted Acquisition or a Permitted Disposal, as
the case may be; (c) an amalgamation, demerger, merger, consolidation or corporate reconstruction
on a solvent basis of a member of the Group where all of the business and assets of that member
remain within the Group and if that member of the Group was an Obligor immediately prior to that
amalgamation, demerger, merger, consolidation or corporate reconstruction, all of the business and
assets of that member are retained by one or more other Obligors or a company which becomes an
Obligor upon such merger, and (i) the surviving entity of that amalgamation, demerger, merger,
consolidation or corporate reconstruction is liable for the obligations of the member of the Group
it has merged with; and (ii) the surviving entity of that amalgamation, demerger, merger,
consolidation or corporate reconstruction is incorporated in the same jurisdiction as that member
of the Group; (d) a divestiture or other corporate reconstruction of a member of the Group to the
extent (i) required by a Governmental Authority or (ii) pursuant to the Synergies Implementation
Plan, in each case in connection with the Merger; or (e) an amalgamation, demerger, merger,
consolidation or corporate reconstruction on a solvent basis of any members of the Group that are
not Obligors.
“Permitted Refinancing Indebtedness” shall mean any Financial Indebtedness issued in exchange
for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to “Refinance”), the Financial Indebtedness being Refinanced (or previous
refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the
principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the Financial Indebtedness so
Refinanced (plus any unpaid accrued interest and premium thereon and any underwriting discounts,
fees, commissions and expenses incurred in connection with such Refinancing); (b) each of the
stated maturity and the average life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Financial Indebtedness being Refinanced; (c) if the Financial
Indebtedness being Refinanced is subordinated in right of payment to the obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to
such obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Financial Indebtedness being Refinanced; (d) no Permitted Refinancing
Indebtedness shall have different obligors, or greater guarantees or security, than the Financial
Indebtedness being Refinanced; and (f) if the Financial Indebtedness being Refinanced is secured by
any collateral (whether equally and ratably with, or junior to, the Secured Parties or otherwise),
such Permitted Refinancing Indebtedness may be secured by such collateral on terms no less
favorable to the Secured Parties than those contained in the documentation governing the Financial
Indebtedness being Refinanced.
“Permitted Security” shall mean (a) any Security granted pursuant to the terms of the French
Revolving Facility, so long as such Security applies only to all or any portion of the Collateral
(but not to any other assets) pursuant to one or more security agreements in accordance with the
terms of the Intercreditor Agreement (or another intercreditor agreement containing terms that,
taken as a whole, are at least as favorable to the Secured
27
Parties as those contained in the Intercreditor Agreement); (b) any Security listed in
Schedule 1.01(e) except to the extent the principal amount secured by that Security exceeds the
amount as stated in that Schedule (or, if higher, the maximum amount of the relevant facility as
stated in that Schedule); (c) any netting or set-off arrangement entered into by (i) any member of
the Group in the ordinary course of its cash management arrangements for the purpose of netting
debit and credit balances or (ii) in connection with a derivative transaction constituting
Permitted Financial Indebtedness; (d) any lien arising by operation of law and in the ordinary
course of business; (e) any sale of receivables on recourse terms or any Security constituted by
any title transfer or retention of title or conditional sale arrangements, in each case which are
entered into by any member of the Group in the normal course of its business up to a maximum
aggregate amount of $50,000,000; (f) any Security or Quasi-Security over or affecting any asset
acquired by a member of the Group after the Closing Date if (i) such Security or Quasi-Security was
not created in contemplation of the acquisition of that asset by a member of the Group, (ii) the
principal amount (or, if higher, the maximum principal amount of the relevant facility) secured has
not been increased in contemplation of, or since the acquisition of that asset by a member of the
Group and (iii) such Security or Quasi-Security does not apply to any other property or assets of
Parent, the Borrower or any Subsidiary; (g) any Security or Quasi-Security over or affecting any
asset of any company which becomes a member of the Group after the Closing Date, where the Security
is created prior to the date on which that company becomes a member of the Group, if: (i) such
Security or Quasi-Security was not created in contemplation of the acquisition of that company,
(ii) the principal amount (or, if higher, the maximum principal amount of the relevant facility)
secured has not increased in contemplation of or since the acquisition of that company and (iii)
such Security or Quasi-Security does not apply to any other property or assets of Parent, the
Borrower or any Subsidiary (other than a Subsidiary so acquired); (h) any Security or
Quasi-Security entered into pursuant to any Finance Document; (i) any Security created in respect
of any tax assessment or governmental charge or claim provided that (i) the aggregate amount
secured by such Security is less than $50,000,000 (or its equivalent in another currency or
currencies), (ii) that such assessment, charge or claim has not yet become due or is being
contested in good faith, (iii) adequate reserves are being maintained for such assessment, charge
or claim, (iv) payment in respect of such assessment, charge or claim has not yet become due or can
be lawfully withheld and (v) any such assessment, charge or claim which relates to an amount in
excess of $7,500,000 (or its equivalent in another currency or currencies) has been notified to the
Administrative Agent; (j) any Security to which the Administrative Agent (acting on the
instructions of the Majority Lenders) shall have given prior written consent; (k) any Security
securing Financial Indebtedness arising or permitted under (i) clause (k) or (p) of the definition
of Permitted Financial Indebtedness, provided that such Security applies solely to property or
assets acquired with the proceeds of such Permitted Financial Indebtedness, or (ii) clause (g), (o)
or (r) of the definition of Permitted Financial Indebtedness; (l) any Security securing
indebtedness the principal amount of which (when aggregated with the principal amount of any other
indebtedness which has the benefit of Security given by any member of the Group other than any
permitted under clauses (a) to (k) above or (m) to (w) below) does not exceed $75,000,000 (or its
equivalent in another currency or currencies) at any one time
28
outstanding, of which not more than $25,000,000 (or its equivalent in another currency or
currencies) may be senior to or pari passu with the Transaction Security; (m) deposits made in the
ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, or to secure the performance of statutory obligations, bids,
leases, government contracts, trade contracts, and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the Transaction Security on account
thereof; (n) any attachment or judgment Security not constituting an Event of Default under
paragraph (p) of Article VII and being contested in good faith or discharged within 60 days; (o)
licenses (with respect to Intellectual Property and other property), leases or subleases granted to
third parties in accordance with any applicable terms of the Finance Documents and not interfering
in any material respect with the ordinary conduct of the business of Parent or any of its
Subsidiaries or resulting in a material diminution in the value of any Transaction Security as
security for the obligations under the Finance Documents; (p) easements, rights-of-way,
restrictions, encroachments, and other minor defects or irregularities in title, in each case which
do not and will not interfere in any material respect with the ordinary conduct of the business of
Parent or any of its Subsidiaries or result in a material diminution in the value of any
Transaction Security as security for the obligations under the Finance Documents; (q) any (i)
interest or title of a lessor or sublessor under any lease not prohibited by this Agreement, (ii)
Security or restriction that the interest or title of such lessor or sublessor may be subject to,
or (iii) subordination of the interest of the lessee or sublessee under such lease to any Security
or restriction referred to in the preceding clause (ii), so long as the holder of such Security or
restriction agrees to recognize the rights of such lessee or sublessee under such lease; (r)
Security arising from filing UCC financing statements relating solely to operating leases not
prohibited by this Agreement; (s) Security over rental deposits in respect of any property leased
or licensed by a member of the Group in the ordinary course of business; (t) any zoning or similar
law or right reserved to or vested in any Government Authority to control or regulate the use of
any real property; (u) Security securing obligations (other than obligations representing Financial
Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered
into in the ordinary course of business of Parent and its Subsidiaries; (v) Security over shares in
a Permitted Joint Venture or Permitted Investment to secure obligations to the other Joint Venture
partners or other investors in such Permitted Investment, as applicable; or (w) Security over bank
accounts granted pursuant to such bank’s standard terms and conditions for deposit accounts.
“Permitted Share Issue” shall mean (a) the issue of Equity Interests in connection with the
Merger pursuant to the terms of the Merger Agreement; (b) the issue of Equity Interests pursuant to
any warrants, rights, options, convertible debt securities or any other convertible securities
(including pursuant to any anti-dilution provisions contained in the agreements governing such
securities) issued by Parent or the Target and outstanding on the Closing Date; (c) the issue by
Parent of any Equity Interests pursuant to any share option scheme or issue of free shares to
senior management of the Group; (d) distributions in the form of common or perpetual preferred
Equity Interests by any member of the Group (other than Parent) to its shareholders or
equityholders on a pro rata basis; (e) the issue (i) of Equity Interests by an Obligor to an
Obligor; (ii) of Equity
29
Interests by a non-Obligor to a non-Obligor; (iii) of common or perpetual preferred Equity
Interests by an Obligor to a non-Obligor; (iv) of Equity Interests by a wholly owned non-Obligor,
in connection with the CGG Services SA Project and the CGG Services Holding Project, to an Obligor
in exchange for consideration consisting solely of non-Cash and non-Cash Equivalent Investments;
(v) of common or perpetual preferred Equity Interests issued in connection with a Permitted
Acquisition under clauses (c) or (d) of the definition thereof; and (vi) of Equity Interests by a
non-Obligor to an Obligor for consideration in an amount not to exceed $275,000,000 at any time
outstanding; (f) the issue by Parent of its own Equity Interests (other than Disqualified Stock) or
warrants, rights and/or options for such Equity Interests; (g) the issue of Equity Interests of
Sercel Holding (including, without limitation, to effect an initial public offering thereof),
provided that such transaction results in a release of the relevant Sercel Companies as guarantors
of the Existing Bonds pursuant to Section 10.04 of the Existing Bond Indenture and as Guarantors
hereunder; or (h) the issue of common or perpetual preferred Equity Interests in connection with
any Qualifying Business Disposal.
“person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
“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 any U.S. Group Member 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.
“Pledge and Security Agreement (Canada)” shall mean the Pledge and Security Agreement (Canada)
dated as of the Closing Date and attached as Exhibit F, among the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
“Pledge and Security Agreement (U.S.)” shall mean the Pledge and Security Agreement (U.S.),
dated as of the Closing Date and attached as Exhibit G, among the Borrower, the other Subsidiaries
party thereto and the Collateral Agent for the benefit of the Secured Parties.
“
Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit
Suisse AG as its prime rate in effect at its principal office in
New York City and notified to the
Borrower.
“Pro Rata Percentage” of any Revolving Credit Lender at any time shall mean the percentage of
the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In
the event the Revolving Credit Commitments shall have expired or been terminated, the Pro Rata
Percentages shall be determined on the basis of the Revolving Credit Commitments most recently in
effect, giving effect to any subsequent assignments.
30
“Qualifying Acquisition” shall mean an acquisition of any business or not less than 75% of the
issued Equity Interests of a limited liability company or corporation (or, as applicable in a
jurisdiction outside the United States, an organization having an equivalent status in such
jurisdiction), it being understood that, for the purposes of an acquisition that is consummated
pursuant to a public tender offer, such condition shall be deemed satisfied by the acquisition of
not less than a majority of the issued Equity Interests of such entity so long as such public
tender offer is made for not less than 75% of the issued Equity Interests of such entity, provided
that (a) if the relevant company, business, undertaking, person, partnership or similar arrangement
had been consolidated, on a pro forma basis, in the most recent set of consolidated financial
statements delivered by Parent in accordance with Section 5.01, all requirements of Section 6.02(a)
and (b) would have been satisfied on the date that such requirements were tested by reference to
such consolidated financial statements in accordance with Section 6.02(c); (b) the relevant
company, business, undertaking, person, partnership or similar arrangement carries on, or is, a
business (x) substantially the same as that carried on by the Group or (y) providing services or
software products to the oil and gas industry or manufacturing equipment for use by the oil and gas
industry (or any business that is reasonably complementary or related thereto); and (c) after
giving effect to such acquisition, (i) the sum of (x) the amount of unused and available Revolving
Credit Commitments plus (y) the unused and available commitments under the French Revolving
Facility shall not be less than $100,000,000 and (ii) the Total Leverage Ratio calculated on a pro
forma basis for the most recently ended Relevant Period shall be no greater than the Total Leverage
Ratio on the Closing Date.
“Qualifying Business Disposal” shall mean a sale, demerger or other disposal of all or any
portion of a business of the Group, including, without limitation, any reorganization of such
business (including, without limitation, by means of intra-Group transfers of assets and
liabilities) as is required or advisable in connection with such sale, demerger or other disposal,
provided that such sale, demerger or other disposal (a) relates only to the assets of non-Obligors
or shares issued by non-Obligors, (b) does not involve, in the aggregate with all other such sales,
demergers and other disposals, a business or businesses (or any portion of such business or
businesses) the EBITDA of which constituted greater than 10% of the Group’s consolidated EBITDA
during the most recently ended Relevant Period, (c) is made for fair market value and (d) is made
for at least 75% cash consideration; provided further that, for purposes of clauses (c) and (d)
above, the amount of any Financial Indebtedness of a non-Obligor (as shown on Parent’s or such
non-Obligor’s most recent balance sheet or in the notes thereto) that is assumed by the transferee
of the business (or portion thereof) being sold, demerged or otherwise disposed of shall be deemed
to be cash.
“Quarter Date” shall mean the last day of a Financial Quarter.
“Quarterly Financial Statement” shall mean the financial statements delivered pursuant to
Section 5.01(b).
“Quasi-Security” shall have the meaning assigned to such term in Section 6.07(a).
31
“Receiver” shall mean a receiver or receiver and manager or administrative receiver of the
whole or any part of the Collateral.
“Register” shall have the meaning assigned to such term in Section 9.04(d).
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment
vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or
advised by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates
and the respective directors, trustees, officers, employees, agents and advisors of such person and
such person’s Affiliates.
“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.
“Relevant Jurisdiction” shall mean, in relation to an Obligor (a) its jurisdiction of
incorporation; (b) any jurisdiction where any asset subject to or intended to be subject to the
Transaction Security to be created by it is situated; (c) any jurisdiction where it conducts its
business; and (d) the jurisdiction whose laws govern the perfection of any of the Security
Documents entered into by it.
“Relevant Period” shall mean (a) each period of twelve months ending on the last day of
Parent’s financial year; and (b) each period of twelve months ending on the last day of each
Financial Quarter of Parent’s Fiscal Year.
“Repayment Date” shall have the meaning given such term in Section 2.11.
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of
such person (including, in the case of a Foreign Obligor, a director or officer of such person
reasonably satisfactory to the Administrative Agent) and any other officer or similar official
thereof responsible for the administration of the obligations of such person in respect of this
Agreement.
“Restatement Effective Date” shall have the meaning given such term in the Amendment
Agreement.
32
“Restricted Payment” shall have the meaning given such term in Section 6.12.
“Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Loans.
“Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder as set forth on Schedule 2.01, or in the Assignment and
Acceptance or Incremental Assumption Agreement (or, in the case of any additional Revolving Credit
Commitment established as contemplated by the definition of the term “Total Revolving Credit
Commitment”, such other instrument as is reasonably satisfactory to the Administrative Agent)
pursuant to which such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate
amount at such time of such Lender’s L/C Exposure, plus the aggregate amount at such time of such
Lender’s Swingline Exposure.
“Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment or an
outstanding Revolving Loan.
“Revolving Credit Maturity Date” shall mean January 12, 2012.
“Revolving Loans” shall mean the revolving loans made by the Lenders to the Borrower pursuant
to clause (ii) of Section 2.01(a).
“Secured Parties” shall have the meaning assigned to such term in any Security Document.
“Securities Act” shall mean the U.S. Securities Act of 1933, as amended.
“Security” shall mean a mortgage, charge, pledge, lien, assignment or other security interest
securing any obligation of any person or any other agreement or arrangement having a similar
effect.
“Security Documents” shall mean the Mortgages, the Guarantee Agreement, the Norwegian
Guarantee Agreement, the Pledge and Security Agreement (U.S.), the Pledge and Security Agreement
(Canada), the Share Pledge Agreements, the Intercreditor Agreement and each of the security
agreements, mortgages and other instruments and documents executed and delivered pursuant to any of
the foregoing or pursuant to Section 5.21, together with any other document entered into by any
Obligor creating or expressed to create any Security over all or any part of its assets in respect
of the obligations of any of the Obligors under any of the Finance Documents.
33
“Sercel Company” means (a) Xxxxxx X.X., a French limited liability corporation (registration
number 378 040 497 RCS Nantes), (b) Sercel, Inc., a Texas corporation, (c)
Sercel Holding, (d) Sercel Australia Pty Ltd, an Australian company, (e) Sercel Canada Ltd, a
Canadian company, and/or (f) any successor by merger of any of the foregoing.
“Sercel Holding Equity Issuance” shall mean any Equity Issuance by Sercel Holding.
“Sercel Holding” means any holding company (including Sercel Holding S.A., a French limited
liability corporation (registration number 000 000 000 RCS Nantes) that holds all of the
outstanding capital stock of either or both of Xxxxxx X.X., a French limited liability corporation
(registration number 378 040 497 RCS Nantes), and Sercel, Inc., a Texas corporation (other than
directors’ qualifying shares and capital stock held by other statutorily required minority
shareholders), and that does not hold any capital stock in any other Subsidiary.
“Share Pledge Agreements” shall mean the share pledge agreements, each dated as of the Closing
Date and attached as Exhibit H, between the applicable pledgor and the Collateral Agent in respect
of the applicable Shares.
“Shares” shall mean all the issued shares owned by any Obligor in the capital of (i) each
Subsidiary that is a “Guarantor” under and as defined in the Existing Bond Indenture, (ii) the
Original Borrower (prior to the Merger), (iii) the Borrower, (iv) the Original Borrower (subsequent
to the Merger), (v) each first-tier material subsidiary of any Obligor and (vi) each Domestic
Subsidiary; provided, however, that, to the extent that the pledge of any greater percentage would
result in a material adverse tax consequence to any Obligor, no more than 65% of the voting Equity
Interests of any Foreign Subsidiary will constitute “Shares”; provided further that, to the extent
that the constitutional documents of or contractual arrangements relating to such subsidiary
restrict or prohibit any transfer of its Equity Interests or the granting or enforcement of
Transaction Security (as such constitutional documents or contractual arrangements are in effect on
the Closing Date or, if later, the date on which such Equity Interests are acquired by the
applicable Obligor or Obligors, so long as such restriction or prohibition was not created in
contemplation of such acquisition), only such Equity Interests (if any) that may be pledged without
violating such constitutional documents or such contractual arrangements will constitute “Shares”.
“Solvent” shall have the meaning assigned to such term in Section 3.07(a).
“SPC” shall have the meaning assigned to such term in Section 9.04(i).
“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.
“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative
34
Agent or any Lender (including any branch, Affiliate or other fronting
office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities as defined in
Regulation D of the Board) and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
“subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, limited liability company, association or other business entity (a) of
which securities or other ownership interests representing 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, owned, Controlled or held, or (b) that is, at the time any determination is made,
otherwise consolidated in the financial statements of the parent in accordance with IFRS.
“Subsidiary” shall mean any subsidiary of Parent.
“Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.09.
“Swingline Exposure” shall mean, at any time, the aggregate principal amount at such time of
all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time
shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender” shall mean Credit Suisse AG, acting through any of its Affiliates or
branches, in its capacity as lender of Swingline Loans hereunder.
“Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.22.
“Synergies Implementation Plan” shall mean a plan implemented by Parent and its Subsidiaries
to realize the $65,000,000 announced synergies in connection with the Merger.
“Target Convertible Notes” shall mean the existing Convertible Senior Notes due 2024 of the
Target.
“Target Group” shall mean the Target and its subsidiaries.
“Target Required Cash Amount” shall mean the aggregate amount of cash that Parent or the
Borrower will have to pay to the holders of the Target Convertible Notes outstanding on the Closing
Date upon conversion of all such Target Convertible Notes pursuant to the terms of the Supplemental
Indenture governing such Target Convertible Notes; provided that such amount shall not exceed the
fair market value of 3,000,000
35
shares (or the corresponding amount of Parent’s American Depositary Shares) as of the Closing Date.
“Target Share Repurchase Amount” shall mean the aggregate amount of common or perpetual
preferred Equity Interests (or the corresponding amount of Parent’s American Depositary Shares)
that Parent will have to issue to the holders of the Target Convertible Notes outstanding on the
Closing Date upon conversion of all such Target Convertible Notes pursuant to the terms of the
Supplemental Indenture governing such Target Convertible Notes (or the corresponding amount of
Parent’s American Depositary Shares); provided that such amount shall not exceed 3,000,000 shares
(or the corresponding amount of Parent’s American Depositary Shares).
“Tax
Deduction” shall mean a deduction or withholding for or on account of Tax from a payment
under a Finance Document.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Term Borrowing” shall mean a Borrowing comprised of Term Loans.
“Term Lender” shall mean a Tranche B-1 Term Lender or a Tranche B-2 Term Lender. Unless the
context otherwise requires, the term “Term Lender” shall include any Incremental Term Lender.
“Term Loan Commitment” shall mean, with respect to each Lender, the commitment of such Lender
to make Term Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance or
Incremental Assumption Agreement pursuant to which such Lender assumed its Term Loan Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. Unless the context shall otherwise require, the term “Term Loan Commitments” shall
include the Incremental Term Loan Commitments.
“Term Loan Maturity Date” shall mean the Tranche B-1 Term Loan Maturity Date or the Tranche
B-2 Term Loan Maturity Date, as applicable.
“Term Loans” shall mean the Tranche B-1 Term Loans or the Tranche B-2 Term Loans (or both), as
applicable. Unless the context shall otherwise require, the term “Term Loans” shall include any
Incremental Term Loans.
“Total Interest Costs” shall mean, with respect to any person for any period, the sum, without
duplication, of the following: (a) the consolidated interest expense of such person and its
subsidiaries for such period, whether paid or accrued (including, without limitation, amortization
of original issue discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with capital lease
obligations, commissions, discounts and other fees and charges incurred in respect of letter of
credit or bankers’ acceptance financings, and net of all payments made or received (if any)
pursuant to Treasury Transactions in respect
36
of interest rates but excluding amortization of debt
issuance costs and non-cash charges other than any non-cash interest expenses related to
convertible bonds) and (b) the
consolidated interest expense of such person and its restricted Subsidiaries that was
capitalized during such period.
“Total Leverage Ratio” shall mean the ratio of Total Net Debt (denominated in euro) and
divided by the euro/dollar closing exchange rate for the Relevant Period (as indicated in Parent’s
consolidated financial statements relating to the period ending on the last day of such Relevant
Period) to EBITDA (denominated in euro) and divided by the euro/dollar average exchange rate for
the Relevant Period (as indicated in Parent’s consolidated financial statements relating to the
period ending on the last day of such Relevant Period); provided that to the extent any Permitted
Disposal or any Permitted Acquisition has occurred during the Relevant Period, Total Leverage Ratio
shall be determined for the such Relevant Period on a pro forma basis for such occurrences.
“Total Net Debt” shall mean, at any time (without double counting), the aggregate
indebtedness, after deducting Cash of Parent, in respect of (a) moneys borrowed in respect of bank
debt (including, for the avoidance of doubt, the French Revolving Facility); (b) all amounts
outstanding under any Finance Document; (c) any amount raised pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) any
amount raised pursuant to any issue of shares which are expressed to be redeemable and all
obligations to purchase, retire, defease or otherwise acquire for value any share capital of any
person or any warrants, rights or options to acquire such share capital; (e) the amount of any
liability in respect of any Capital Lease Obligations; (f) the amount of any liability in respect
of any advance or deferred purchase agreement if the primary reason for entering into such
agreement is to raise finance; (g) receivables sold or discounted (other than on a non-recourse
basis); (h) any agreement or option to re-acquire an asset if the primary reason for entering into
such agreement or option is to raise finance; and (i) any amount raised under any other transaction
(including any forward sale or purchase agreement) having the commercial effect of a borrowing,
except for financing by trade creditors; provided that any indebtedness for or in respect of any
Permitted Guarantee shall not be included in the calculation of “Total Net Debt” hereunder to the
extent such indebtedness is not due and payable.
“Total Revolving Credit Commitment” shall mean, at any time, the aggregate amount of the
Revolving Credit Commitments, as in effect at such time. The Total Revolving Credit Commitment as
of the Restatement Effective Date is $140,000,000.
“Tranche B-1 Term Lender” shall mean a Lender with a Tranche B-1 Term Loan.
“Tranche B-1 Term Loan Maturity Date” shall mean January 12, 2014.
“Tranche B-1 Term Loans” shall mean the term loans made to the Borrower pursuant to the
Original Credit Agreement and designated as “Tranche B-1 Term Loans” pursuant to the Amendment
Agreement.
37
“Tranche B-2 Term Lender” shall mean a Lender with a Tranche B-2 Term Loan.
“Tranche B-2 Term Loan Maturity Date” shall mean January 12, 2016; provided that if the
Existing Notes have not been repaid or refinanced in full on or prior to February 13, 2015, the
Tranche B-2 Term Loan Maturity Date shall be February 13, 2015.
“Tranche B-2 Term Loans” shall mean the term loans made to the Borrower pursuant to the
Original Credit Agreement and designated as “Tranche B-2 Term Loans” pursuant to the Amendment
Agreement.
“Transaction Documents” shall mean the Merger Documents and the Finance Documents.
“Transaction Security” shall mean the Security granted in favor of the Finance Parties by any
Obligor pursuant to each Security Document.
“Transactions” shall mean, collectively, (a) the execution, delivery and performance by Parent
and the Borrower of the Merger Agreement and the consummation of the transactions contemplated
thereby, (b) the execution, delivery and performance by Parent and the guarantors party thereto of
the Bridge Facility Agreement and the French Revolving Facility Agreement and the making of the
borrowings thereunder, (c) the execution, delivery and performance by the Obligors of the Finance
Documents to which they are a party and the making of the Borrowings hereunder, (d) the repayment
of all amounts due or outstanding under or in respect of, and the termination of, the Existing
Credit Agreement and the Existing Target Credit Agreement (e) any payment of the Target Required
Cash Amount, (f) any repurchase of Parent’s common or perpetual preferred Equity Interests
(including, without limitation, Parent’s American Depositary Shares) permitted under Section
6.12(b)(vii) and (g) the payment of related fees and expenses.
“Treasury Transaction” shall mean any derivative transaction entered into pursuant to a
Hedging Agreement in connection with protection against or benefit from fluctuation in any rate or
price.
“Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.
“Unpaid Sum” shall mean any sum due and payable but unpaid by an Obligor under the Finance
Documents.
“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).
38
“U.S. GAAP” shall mean generally accepted accounting principles in the United States.
“U.S. Group Member” shall mean any member of the Group that is incorporated, resident or with
its principal place of business in the United States of America, any state thereof or the District
of Columbia, or which owns or leases property or otherwise conducts business in the United States
of America, any state thereof or the District of Columbia.
“U.S. Person” shall mean a “United States Person” as defined in Section 7701(a)(30) of the
Code and includes the sole owner of any entity that is disregarded as being an entity separate from
such owner for U.S. federal income tax purposes.
“U.S. Qualifying Lender” shall mean a Lender which either (i) is a U.S. Person or (b) is not a
U.S. Person but is entitled to complete exemption from withholding of U.S. federal income tax on
interest payable to it in respect of any Loan.
“Voluntary Prepayment” shall mean a prepayment of principal of Term Loans pursuant to Section
2.12 in any year (other than any such prepayment to the extent financed with the proceeds of
Financial Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other
proceeds that would not be included in Consolidated EBITDA) to the extent that such prepayment
reduces the scheduled installments of principal due in respect of Term Loans as set forth in
Section 2.11(a) in any subsequent year.
“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.
“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 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.
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”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”; and the
words “asset” and “property” shall be construed as having the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. 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
39
unless
the context shall otherwise require. Except as otherwise expressly provided herein,
(a) any reference in this Agreement to any Finance Document shall mean such document as
amended, restated, supplemented or otherwise modified from time to time and (b) to the extent not
otherwise provided herein, all terms of an accounting or financial nature shall be construed in
accordance with IFRS, as in effect from time to time; provided, however, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI or
any related definition to eliminate the effect of any change in IFRS occurring after the Closing
Date on the operation of such covenant (or if the Administrative Agent notifies the Borrower that
the Majority Lenders wish to amend Article VI or any related definition for such purpose), then the
Borrower’s compliance with such covenant shall be determined on the basis of IFRS in effect
immediately before the relevant change in IFRS became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Majority
Lenders. Unless a contrary indication appears, any reference in this Agreement to (i) the
“Administrative Agent”, the “Collateral Agent”, any “Arranger”, any “Finance Party”, any “Lender”
or any “Obligor” shall be construed so as to include its successors in title, permitted assigns and
permitted transferees; (ii) “assets” includes present and future properties, revenues and rights of
every description; (iii) “corporate reconstruction” includes in relation to any company any
contribution of part of its business in consideration of shares (apport partiel d’actifs) and any
demerger (scission) implemented in accordance with articles L.236-1 to L.236-24 of the French Code
de Commerce; any merger and any transmission universelle de patrimoine; (iv) a “Finance Document”
or any other agreement or instrument is a reference to that Finance Document or other agreement or
instrument as amended, modified, supplemented, replaced or novated; (v) a “guarantee” includes any
“cautionnement”, “aval” and any “garantie” which is independent from the debt to which it relates;
(vi) “indebtedness” includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent; (vii) “merger”
includes any fusion implemented in accordance with articles L.236-1 to L.236-24 of the French Code
de Commerce or any merger implemented in accordance with the Delaware General Corporation Law;
(viii) a “regulation” includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law but if not having the force of law, compliance with which
is customary for the persons to whom it is addressed) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other authority or
organization; and (ix) a “security interest” includes any type of security (sûreté réelle) and
transfer by way of security. Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement. A Default (including an Event of
Default) is “continuing” if it has not been remedied or waived.
SECTION 1.03.
Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (
e.g., a “Revolving Loan”) or by Type (
e.g., a
“Eurocurrency Loan”) or by Class and Type (
e.g., a “Eurocurrency Revolving Loan”). Borrowings also
may be classified and referred to by Class (
e.g., a “Revolving Borrowing”) or by Type (
e.g., a
“Eurocurrency Borrowing”) or by Class and Type (
e.g., a “Eurocurrency Revolving Borrowing”).
40
SECTION 1.04.
Intercreditor Agreement. This Agreement shall be read and construed in
accordance with the terms of the Intercreditor Agreement. In the case of any inconsistency between
the terms of this Agreement and the Intercreditor Agreement, the terms of the Intercreditor
Agreement shall prevail.
ARTICLE II
SECTION 2.01.
Commitments. (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make Revolving Loans to the Borrower, at any time and from time to time on and after the date
hereof, and until the earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender’s Revolving Credit
Exposure exceeding such Lender’s Revolving Credit Commitment. Within the limits set forth in the
preceding sentence and subject to the terms, conditions and limitations set forth herein, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans. The Term Loan Commitments (other
than any Incremental Term Loan Commitments) have been fully utilized as of the Restatement
Effective Date and as of such date, each Borrowing of Term Loans (as defined in the Original Credit
Agreement) is deemed to be a Tranche B-1 Term Borrowing or a Tranche B-2 Term Borrowing, as
applicable; accordingly, as of the Restatement Effective Date, $515,000,000.00 aggregate principal
amount of Term Loans (consisting of $166,797,739.27 of Tranche B-1 Term Loans and $348,202,260.73
of Tranche B-2 Term Loans) is outstanding hereunder. Amounts paid or prepaid in respect of Term
Loans may not be reborrowed.
(b) Each Lender having an Incremental Term Loan Commitment agrees, severally and not
jointly, subject to the terms and conditions and relying upon the representations and warranties
set forth herein and in the applicable Incremental Assumption Agreement to make Incremental Term
Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan
Commitment. Amounts paid or prepaid in respect of Incremental Term Loans may not be reborrowed.
SECTION 2.02.
Loans. (a) Each Loan (other than Swingline Loans) shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable
Commitments;
provided, however, that the failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f), the Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple
of $1,000,000 and not less than $5,000,000 (except, with respect to any Incremental Term Borrowing,
to the extent otherwise provided in the related Incremental Assumption Agreement) or (ii) equal to
the remaining available balance of the applicable Commitments.
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(b) Subject to Sections 2.02(f), 2.08 and 2.15, each Borrowing shall be comprised entirely
of ABR Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender
may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that, subject to Section 2.21(b), any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that no Borrower shall be entitled to request any Borrowing that, if made, would
result in more than 10 Eurodollar Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in
New York City as the Administrative Agent may designate not
later than 1:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account designated by the Borrower in the applicable Borrowing Request
or, if a Borrowing shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such
Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower to but excluding the date
such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, a rate per
annum equal to the interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its
cost of overnight or short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.
(e) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request any Revolving Credit Borrowing if the Interest Period requested with respect thereto would
end after the Revolving Credit Maturity Date.
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(f) If the Issuing Bank shall not have received from the Borrower the payment required to be
made by Section 2.23(e) within the time specified in such Section, the Issuing Bank will promptly
notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly
notify each Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage thereof.
Each such Revolving Credit Lender shall pay by wire transfer of immediately available funds to the
Administrative Agent not later than 2:00 p.m.,
New York City time, on such date (or, if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York City time, on the immediately following
Business Day), an amount equal to such Lender’s Pro Rata Percentage of such L/C Disbursement (it
being understood that (i) if the conditions precedent to borrowing set forth in Sections 4.01(b)
and (c) have been satisfied, such amount shall be deemed to constitute an ABR Revolving Loan of
such Lender and, to the extent of such payment, the obligations of the Borrower in respect of such
L/C Disbursement shall be discharged and replaced with the resulting ABR Revolving Credit
Borrowing, and (ii) if such conditions precedent to borrowing have not been satisfied, then any
such amount paid by any Revolving Credit Lender shall not constitute a Loan and shall not relieve
the Borrower from its obligation to reimburse such L/C Disbursement), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the Revolving Credit Lenders.
The Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the Revolving Credit Lenders
that shall have made such payments and to the Issuing Bank, as their interests may appear. If any
Revolving Credit Lender shall not have made its Pro Rata Percentage of such L/C Disbursement
available to the Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date such amount is
required to be paid in accordance with this paragraph to but excluding the date such amount is
paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the case of the
Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to
Section 2.06(a), and (ii) in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Alternate Base Rate.
SECTION 2.03.
Borrowing Procedure. In order to request a Borrowing (other than a Swingline
Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.03 shall not
apply), the Borrower shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, two Business Days
before a Borrowing to occur on the Closing Date and three Business Days before a proposed Borrowing
to occur on any date thereafter, and (b) in the case of an ABR Borrowing, not later than 12:00
noon, New York City time, one Business Day before a proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable, and shall be confirmed promptly by hand delivery or fax to
the Administrative Agent of a written Borrowing Request and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term Borrowing, a Revolving
Credit Borrowing or an Incremental Term Borrowing,
43
and whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing (provided that,
until the Administrative Agent shall have notified the Borrower that the primary syndication of the
Commitments has been completed (which notice shall be given as promptly as practicable and, in any
event, within 15 Business Days after the Closing Date), the Borrower shall not be permitted to
request a Eurodollar Borrowing with an Interest Period longer than one month); (ii) the date of
such Borrowing (which shall be a Business Day); (iii) the number and location of the account to
which funds are to be disbursed; (iv) the amount of such Borrowing; and (v) if such Borrowing is to
be a Eurodollar Borrowing, the Interest Period with respect thereto; provided, however, that,
notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall
comply with the requirements set forth in Section 2.02. If no election as to the Type of Borrowing
is specified in any such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender’s portion of the requested
Borrowing.
SECTION 2.04.
Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender (i) the principal amount
of each Term Loan of such Lender as provided in Section 2.11 and (ii) the then unpaid principal
amount of each Revolving Loan of such Lender on the Revolving Credit Maturity Date. The Borrower
hereby promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline
Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record (i) the amount
of each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above
shall, absent manifest error, be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligations of the Borrower to repay the Loans in accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory
note. In such event, the Borrower shall execute and deliver to such Lender a
44
promissory note payable to such Lender and its registered assigns and in a form and substance
reasonably acceptable to the Administrative Agent and the Borrower. Notwithstanding any other
provision of this Agreement, in the event any Lender shall request and receive such a promissory
note, the interests represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
SECTION 2.05.
Fees. (a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on the last Business Day of March, June, September and December in each year
and on each date on which any Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein, a commitment fee (the “
Commitment Fee”) equal to the Applicable
Percentage per annum in effect from time to time on the daily unused amount of the Revolving Credit
Commitment of such Lender during the preceding quarter (or other period commencing with the date
hereof or ending with the Revolving Credit Maturity Date or the date on which the Revolving Credit
Commitments of such Lender shall expire or be terminated). All Commitment Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days. For purposes of
calculating Commitment Fees only, no portion of the Revolving Credit Commitments shall be deemed
utilized as a result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter at the times and in the amounts specified therein
(the “Administrative Agent Fees”).
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through the
Administrative Agent, on the last Business Day of March, June, September and December of each year
and on the date on which the Revolving Credit Commitment of such Lender shall be terminated as
provided herein, a fee (an “L/C Participation Fee”) calculated on such Lender’s Pro Rata Percentage
of the daily aggregate L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which all Letters of Credit have been
canceled or have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to time used to
determine the interest rate on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant
to Section 2.06, and (ii) to the Issuing Bank with respect to each Letter of Credit the standard
fronting, issuance and drawing fees specified from time to time by the Issuing Bank (the “Issuing
Bank Fees”), provided that the fronting fees payable in respect of any Letter of Credit shall not
exceed 0.25% per annum of the daily undrawn amount of such Letter of Credit. All L/C Participation
Fees and Issuing Bank Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days.
(d) 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
45
that the Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the
Fees shall be refundable under any circumstances.
SECTION 2.06.
Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans
comprising each ABR Borrowing, including each Swingline Loan, shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a year of 360 days at
all other times and calculated from and including the date of such Borrowing to but excluding the
date of repayment thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable
Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar
Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted
LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07.
Default Interest. If the Borrower shall default in the payment of any
principal of or interest on any Loan or any other amount due hereunder, by acceleration or
otherwise, or under any other Finance Document, then, until such defaulted amount shall have been
paid in full, to the extent permitted by law, all amounts outstanding under this Agreement and the
other Finance Documents shall bear interest (after as well as before judgment), payable on demand,
(a) in the case of principal, at the rate otherwise applicable to such Loan pursuant to Section
2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all other times) equal to
the rate that would be applicable to an ABR Revolving Loan plus 2.00% per annum.
SECTION 2.08.
Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing
the Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrower and the Lenders that the
46
circumstances giving rise to such notice no longer exist, any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.
SECTION 2.09.
Termination and Reduction of Commitments. (a) The Revolving Credit
Commitments and the Swingline Commitment shall automatically terminate on the Revolving Credit
Maturity Date. The L/C Commitment shall automatically terminate on the earlier to occur of (i) the
termination of the Revolving Credit Commitments and (ii) the date five Business Days prior to the
Revolving Credit Maturity Date. Each party to this Agreement acknowledges that the Term Loan
Commitments (as defined in the Original Credit Agreement) (other than any Incremental Term Loan
Commitments, which shall terminate as provided in the related Incremental Assumption Agreement)
terminated upon the making of the Term Loans on the Closing Date.
(b) Upon at least three Business Days’ prior irrevocable written or fax notice to the
Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Term Loan Commitments, the Revolving Credit Commitments or the
Swingline Commitment; provided, however, that (i) each partial reduction of the Term Loan
Commitments or the Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000, (ii) each partial reduction of the Swingline Commitment shall be
in an integral multiple of $250,000 and in a minimum amount of $1,000,000 and (iii) the Total
Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate
Revolving Credit Exposure at the time.
(c) Each reduction in the Revolving Credit Commitments hereunder shall be made ratably among
the Lenders in accordance with their respective applicable Commitments. The Borrower shall pay to
the Administrative Agent for the account of the applicable Lenders, on the date of each termination
or reduction, the Commitment Fees on the amount of the Commitments so terminated or reduced accrued
to but excluding the date of such termination or reduction.
SECTION 2.10.
Conversion and Continuation of Borrowings. The Borrower shall have the right
at any time upon prior irrevocable notice to the Administrative Agent (a) not later than 12:00
noon, New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing
into an ABR Borrowing, (b) not later than 12:00 noon, New York City time, three Business Days prior
to conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to
continue any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period, and
(c) not later than 12:00 noon, New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) [Reserved]
47
(ii) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;
(iii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number
of Borrowings of the relevant Type;
(iv) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;
(v) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.16;
(vi) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;
(vii) any portion of a Eurodollar Borrowing that cannot be converted into or continued
as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing;
(viii) no Interest Period may be selected for any Eurodollar Term Borrowing that would
end later than a Repayment Date occurring on or after the first day of such Interest Period
if, after giving effect to such selection, the aggregate outstanding amount of (A) the
Eurodollar Term Borrowings comprised of Term Loans or Other Term Loans, as applicable, with
Interest Periods ending on or prior to such Repayment Date and (B) the ABR Term Borrowings
comprised of Term Loans or Other Term Loans, as applicable, would not be at least equal to
the principal amount of Term Borrowings to be paid on such Repayment Date; and
(ix) upon notice to the Borrower from the Administrative Agent given at the request of
the Majority Lenders, after the occurrence and during the continuance of a Default or Event
of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be
converted or continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such
48
notice requests a conversion, the date of such conversion (which shall be a Business Day) and
(iv) if such Borrowing is to be converted to or continued as a Eurodollar Borrowing, the Interest
Period with respect thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month’s duration. The Administrative Agent shall advise the
Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any
converted or continued Borrowing. If the Borrower shall not have given notice in accordance with
this Section 2.10 to continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such
Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be continued into an ABR Borrowing.
SECTION 2.11.
Repayment of Term Borrowings. (a) (i)The Borrower shall pay to the
Administrative Agent, (x) for the account of the Tranche B-1 Term Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding Business Day (each such
date being called a “
Repayment Date”), a principal amount of the Tranche B-1 Term Loans equal to
(A) a fraction, the numerator of which is the aggregate principal amount of Tranche B-1 Term Loans
outstanding on the Restatement Effective Date and the denominator of which is the aggregate
principal amount of Term Loans outstanding on the Restatement Effective Date, multiplied by (B) the
amount set forth below opposite such Repayment Date and (y) for the account of the Tranche B-2 Term
Lenders, on each Repayment Date, a principal amount equal to (A) a fraction, the numerator of which
is the aggregate principal amount of Tranche B-2 Term Loans outstanding on the Restatement
Effective Date and the denominator of which is the aggregate principal amount of Term Loans
outstanding on the Restatement Effective Date, multiplied by (B) the amount set forth below
opposite such Repayment Date (as adjusted from time to time pursuant to Sections 2.11(b), 2.12,
2.13(f) and 2.24(d)), it being understood that the amounts set forth below do not reflect
adjustments in respect of prepayments, if any, of Term Loans prior to the Restatement Effective
Date, which shall affect and reduce the scheduled amortization payments set forth below in a manner
consistent with Sections 2.12(b) and 2.13(f) of the Original Credit Agreement, together in each
case with accrued and unpaid interest on the principal amount to be paid to but excluding the date
of such payment:
|
|
|
|
|
Repayment Date |
|
Amount |
September 30, 2010 |
|
$ |
2,500,000 |
|
December 31, 2010 |
|
$ |
2,500,000 |
|
March 31, 2011 |
|
$ |
2,500,000 |
|
June 30, 2011 |
|
$ |
2,500,000 |
|
September 30, 2011 |
|
$ |
2,500,000 |
|
December 31, 2011 |
|
$ |
2,500,000 |
|
March 31, 2012 |
|
$ |
2,500,000 |
|
June 30, 2012 |
|
$ |
2,500,000 |
|
September 30, 2012 |
|
$ |
2,500,000 |
|
December 31, 2012 |
|
$ |
2,500,000 |
|
49
|
|
|
|
|
Repayment Date |
|
Amount |
March 31, 2013 |
|
$ |
2,500,000 |
|
June 30, 2013 |
|
$ |
2,500,000 |
|
September 30, 2013 |
|
$ |
2,500,000 |
|
December 31, 2013 |
|
$ |
2,500,000 |
|
March 31, 2014 |
|
$ |
2,500,000 |
|
June 30, 2014 |
|
$ |
2,500,000 |
|
September 30, 2014 |
|
$ |
2,500,000 |
|
December 31, 2014 |
|
$ |
2,500,000 |
|
March 31, 2015 |
|
$ |
2,500,000 |
|
June 30, 2015 |
|
$ |
2,500,000 |
|
September 30, 2015 |
|
$ |
2,500,000 |
|
December 31, 2015 |
|
$ |
2,500,000 |
|
(ii) The Borrower shall pay to the Administrative Agent, for the account of the
Incremental Term Lenders, on each Incremental Term Loan Repayment Date, a principal amount
of the Other Term Loans (as adjusted from time to time pursuant to Sections 2.11(b), 2.12
and 2.13(f)) equal to the amount set forth for such date in the applicable Incremental
Assumption Agreement, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment.
(b) In the event and on each occasion that the Term Loan Commitments shall be reduced or
shall expire or terminate other than as a result of the making of a Term Loan, the installments
payable on each Repayment Date shall be reduced pro rata by an aggregate amount equal to the amount
of such reduction, expiration or termination.
(c) To the extent not previously paid, all Term Loans and Other Term Loans shall be due and
payable on the applicable Term Loan Maturity Date and the applicable Incremental Term Loan Maturity
Date, respectively, together with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.
SECTION 2.12.
Optional Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’
prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in
the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by
written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR
Loans, to the Administrative Agent before 12:00 noon, New York City time;
provided, however, that
each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not
less than $5,000,000.
(b) Optional prepayments of Term Loans shall be (i) allocated pro rata between the Tranche
B-1 Term Loans and the Tranche B-2 Term Loans and applied against the
50
remaining scheduled installments of principal due in respect of the Tranche B-1 Term Loans and
the Tranche B-2 Term Loans under Section 2.11 or (ii) applied against the remaining scheduled
installments of principal due in respect of the Tranche B-1 Term Loans under Section 2.11, in each
case as directed by the Borrower.
(c) Each notice of prepayment shall specify (i) the prepayment date, (ii) the principal
amount of each Borrowing (or portion thereof) to be prepaid and (iii) the Class of Loans to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section 2.12 shall be subject
to Section 2.16 but otherwise without premium or penalty. All prepayments under this Section 2.12
(other than prepayments of ABR Revolving Loans that are not made in connection with the termination
or permanent reduction of the Revolving Credit Commitments) shall be accompanied by accrued and
unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
SECTION 2.13.
Mandatory Prepayments. (a) In the event of any termination of all the
Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay
all its outstanding Revolving Credit Borrowings and all its outstanding Swingline Loans and replace
or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative
Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving
effect to any partial reduction of the Revolving Credit Commitments or at any other time, the
Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the
Borrower shall, on the date of such reduction or at such other time, repay or prepay Revolving
Credit Borrowings or Swingline Loans (or a combination thereof) and, after such Revolving Credit
Borrowings and Swingline Loans shall have been repaid or prepaid in full, replace or cause to be
canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the
Issuing Bank with respect to) Letters of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the third Business Day following the receipt of Net Cash Proceeds in
respect of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with
respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f).
(c) In the event and on each occasion that a Sercel Holding Equity Issuance occurs, the
Borrower shall, substantially simultaneously with (and in any event not later than the third
Business Day next following) the occurrence of such Sercel Holding Equity Issuance, apply 50% of
the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section
2.13(f).
(d) No later than the earlier of (i) 180 days after the end of each Fiscal Year of Parent
and (ii) the date on which the financial statements with respect to such period are delivered
pursuant to Section 5.01(a), the Borrower shall prepay outstanding Term Loans in accordance with
Section 2.13(f) in an aggregate principal amount equal to the excess, if any, of (x) (A) if the
Total Leverage Ratio at the end the Fiscal Year then ended was
51
greater than or equal to 1.75 to 1.00, 50% Excess Cash Flow for such Fiscal Year or (B) if the
Total Leverage Ratio at the end of the Fiscal Year then ended was less than 1.75 to 1.00, 25% of
Excess Cash Flow for such Fiscal Year over (y) the aggregate amount of Voluntary Prepayments made
during (A) such Fiscal Year and (B) to the extent not applied under this clause (y) to reduce the
mandatory prepayment due under this paragraph (d) in respect of the immediately preceding Fiscal
Year, such immediately preceding Fiscal Year.
(e) In the event that any Obligor or any subsidiary of an Obligor shall receive Net Cash
Proceeds from the issuance or incurrence of Financial Indebtedness for money borrowed of any
Obligor or any subsidiary of an Obligor (other than any cash proceeds from the issuance or
incurrence of Permitted Financial Indebtedness), the Borrower shall, substantially simultaneously
with (and in any event not later than the third Business Day next following) the receipt of such
Net Cash Proceeds by such Obligor or such subsidiary, apply an amount equal to 100% of such Net
Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f).
(f) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated
pro rata among the Tranche B-1 Term Loans, the Tranche B-2 Term Loans and the Other Term Loans and
applied first, to prepay outstanding Term Loans of the Term Lenders that accept the same (with each
Term Lender being given the right to elect, by notice to the Administrative Agent at or prior to
the time and in the manner specified by the Administrative Agent to decline all (but not a portion)
of its pro rata share of such prepayment (such declined amounts, the “Declined Proceeds”)). Any
Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment (with such
Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in
the manner specified by the Administrative Agent). All such accepted prepayments shall be applied
first to the unpaid amounts due on the next succeeding six scheduled installments of principal due
in respect of the Tranche B-1 Term Loans, the Tranche B-2 Term Loans and the Other Term Loans under
Sections 2.11(a)(i) and 2.11(a)(ii), respectively, in direct order of maturity, and then pro rata
against the remaining scheduled installments of principal due in respect of the Tranche B-1 Term
Loans, the Tranche B-2 Term Loans and the Other Term Loans under Sections 2.11(a)(i) and
2.11(a)(ii), respectively. Funds that otherwise would have been applied to any such mandatory
prepayments that are rejected by the Term Lenders may be retained by the Borrower.
(g) The Borrower shall deliver to the Administrative Agent, (i) at the time of each
prepayment required under this Section 2.13, a certificate signed by a Financial Officer of the
Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and
(ii) to the extent practicable, at least five Business Days prior written notice of such
prepayment. Each notice of prepayment shall specify the prepayment date and the aggregate principal
amount of Tranche B-1 Term Loans, Tranche B-2 Term Loans and Other Term Loans to be prepaid. All
prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on
the principal amount to be prepaid to but excluding the date of payment.
52
SECTION 2.14.
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 the Issuing Bank (except any such reserve requirement which
is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender 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 the Issuing Bank hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, upon demand such
additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the 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
the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made or participations in Letters
of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing
Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s
or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the
Issuing Bank’s holding company with respect to capital adequacy) by an amount deemed by such Lender
or the Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank the 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 the 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 the Issuing Bank’s right to demand such
compensation; provided that no Borrower shall be under any obligation to compensate any Lender or
the 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 120 days prior to such request if such Lender
or the Issuing Bank knew or
53
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 120-day period. The protection of this Section shall
be available to each Lender and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.
SECTION 2.15.
Change in Legality. (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period
or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.
SECTION 2.16.
Indemnity. The Borrower shall indemnify each Lender against any loss or
expense that such Lender may sustain or incur as a consequence of (a) any event, other than a
default by such Lender in the performance of its obligations hereunder, which results in (i) such
Lender receiving or being deemed to receive any amount on account of the principal of any
Eurodollar Loan prior to the end of the Interest
54
Period in effect therefor, (ii) the conversion of any Eurodollar Loan to an ABR Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in each case other than on
the last day of the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made by
such Lender (including any Eurodollar Loan to be made pursuant to a conversion or continuation
under Section 2.10) not being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a “Breakage Event”) or (b)
any default in the making of any payment or prepayment required to be made hereunder. In the case
of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably
determined by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the
subject of such Breakage Event for the period from the date of such Breakage Event to the last day
of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the
amount of interest likely to be realized by such Lender in redeploying the funds released or not
utilized by reason of such Breakage Event for such period; provided that for the avoidance of
doubt, the second proviso at the end of the definition of LIBO Rate shall not be taken into account
when calculating such loss. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section 2.16 shall be delivered to the Borrower
and shall be conclusive absent manifest error.
SECTION 2.17.
Pro Rata Treatment. Except as provided below in this Section 2.17 with respect
to Swingline Loans and as required under Section 2.15, each Borrowing, each payment or prepayment
of principal of any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments
and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type
shall be allocated pro rata among the Lenders in accordance with their respective applicable
Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of determining the available
Revolving Credit Commitments of the Lenders at any time, each outstanding Swingline Loan shall be
deemed to have utilized the Revolving Credit Commitments of the Lenders (including those Lenders
which shall not have made Swingline Loans) pro rata in accordance with such respective Revolving
Credit Commitments. Each Lender agrees that in computing such Lender’s portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18.
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 Borrower or any other Obligor, 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 Loan or Loans or L/C Disbursement as a
result of which the unpaid principal portion of its Loans and participations in L/C Disbursements
shall be proportionately less than the unpaid principal portion of the Loans and participations in
55
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 Loans and L/C Exposure of such other Lender, so that the
aggregate unpaid principal amount of the Loans and L/C Exposure and participations in Loans and L/C
Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount of its Loans and L/C
Exposure prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the
principal amount of all Loans and 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 2.18 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
Borrower and Parent expressly consent to the foregoing arrangements and agree that any Lender
holding a participation in a Loan or 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 Borrower and Parent to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to the Borrower in the amount of such participation.
SECTION 2.19.
Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under
any other Finance Document not later than 12:00 (noon), New York City time, on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each such payment (other
than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of
and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as
otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent at its offices at
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. The Administrative Agent shall promptly distribute to
each Lender any payments received by the Administrative Agent on behalf of such Lender.
(b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Finance
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 2.20.
Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Obligor hereunder or under any other Finance Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that, if the
Borrower or any other Obligor shall be required 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, Lender or Issuing Bank (as the case may be) receives
56
an amount equal to the sum it would have received had no such deductions been made, (ii) the
Borrower or such Obligor shall make such deductions and (iii) the Borrower or such Obligor shall
pay the full amount deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower or any other Obligor
hereunder or under any other Finance Document (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 (other than any
sums arising solely as a result of the misconduct or negligence of the Administrative Agent, such
Lender or the Issuing Bank, as the case may be), whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, or by the Administrative Agent on behalf of itself, a Lender or the Issuing Bank,
shall be conclusive absent manifest error. In the event that any sums are returned to the
Administrative Agent, a Lender or the Issuing Bank by the relevant Governmental Authority in
respect of any Indemnified Taxes, Other Taxes, penalties, interests or other amounts referred to in
this paragraph (c) for which the Borrower has indemnified the Administrative Agent, such Lender or
the Issuing Bank, the Administrative Agent, such Lender or the Issuing Bank, as applicable, will
promptly return such sums to the Borrower. This Section 2.20(c) shall not apply to any Taxes to
the extent the Borrower or any Obligor has made a payment in respect of such Taxes pursuant to
Section 2.20(b).
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Obligor to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.
57
SECTION 2.21.
Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)
In the event (i) any Lender or the Issuing Bank delivers a certificate requesting compensation
pursuant to Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank pursuant to
Section 2.20, (iv) any Lender refuses to consent to any amendment, waiver or other modification of
any Finance Document requested by the Borrower that requires the consent of a greater percentage of
the Lenders than the Majority Lenders and such amendment, waiver or other modification is consented
to by the Majority Lenders or (v) any Lender becomes a Defaulting Lender, the Borrower 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 the Issuing Bank, as the case may be, and the
Administrative Agent, require such Lender or the 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 (or, in the case of clause (iv) above, all
of its interests, rights and obligations with respect to the Class of Loans or Commitments that is
the subject of the related consent, amendment, waiver or other modification) to an assignee that
shall assume such assigned obligations and, with respect to clause (iv) above, shall consent to
such requested amendment, waiver or other modification of any Finance Documents (which assignee may
be another Lender, if a Lender accepts such assignment);
provided that (x) such assignment shall
not conflict with any law, rule or regulation or order of any court or other Governmental Authority
having jurisdiction, (y) the Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing Bank
and the Swingline Lender), which consents shall not unreasonably be withheld or delayed, and (z)
the Borrower or such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and interest accrued to
the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Issuing Bank, respectively, plus all Fees and other amounts accrued for the account of such Lender
or the Issuing Bank hereunder with respect thereto (including any amounts under Sections 2.14 and
2.16);
provided further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender’s or the Issuing Bank’s claim for compensation under Section
2.14, notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be,
cease to cause such Lender or the 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 2.15, or cease to result in amounts being payable under Section 2.20, as the
case may be (including as a result of any action taken by such Lender or the Issuing Bank pursuant
to paragraph (b) below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in
respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent
or other modification, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder. Each Lender hereby
grants to the
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Administrative Agent an irrevocable power of attorney (which power is coupled with an
interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and
Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the
circumstances contemplated by this Section 2.21(a).
(b) If (i) any Lender or the Issuing Bank shall request compensation under Section 2.14,
(ii) any Lender or the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing Bank or any
Governmental Authority on account of any Lender or the Issuing Bank, pursuant to Section 2.20, then
such Lender or the Issuing Bank shall use reasonable efforts (which shall not require such Lender
or the 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 Borrower 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 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section
2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable
out-of-pocket costs and expenses incurred by any Lender or the Issuing Bank in connection with any
such filing or assignment, delegation and transfer.
SECTION 2.22.
Swingline Loans. (a)
Swingline Commitment. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth, the Swingline
Lender agrees to make loans to the Borrower at any time and from time to time on and after the
Closing Date and until the earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of all Swingline Loans exceeding $25,000,000 in
the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any Swingline
Loan, exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be in a principal
amount that is an integral multiple of $1,000,000. The Swingline Commitment may be terminated or
reduced from time to time as provided herein. Within the foregoing limits, the Borrower may borrow,
pay or prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein.
(b)
Swingline Loans. The Borrower shall notify the Swingline Lender by fax, or by telephone
(promptly confirmed by fax), not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall be irrevocable
and shall refer to this Agreement and shall specify the requested date (which shall be a Business
Day) and amount of such Swingline Loan and the wire transfer instructions for the account of the
Borrower to which the proceeds of such Swingline Loan should be disbursed. The Swingline Lender
shall make each Swingline Loan by wire transfer to the account specified in such request.
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(c)
Prepayment. The Borrower shall have the right at any time and from time to time to
prepay any Swingline Loan, in whole or in part, upon giving written or fax notice (or telephone
notice promptly confirmed by written, or fax notice) to the Swingline Lender before 12:00 (noon),
New York City time, on the date of prepayment at the Swingline Lender’s address for notices
specified in Section 9.01.
(d)
Interest. Each Swingline Loan shall be an ABR Loan and, subject to the provisions of
Section 2.07, shall bear interest as provided in Section 2.06(a).
(e)
Participations. The Swingline Lender may by written notice given to the Administrative
Agent not later than 1:00 p.m., New York City time, on any Business Day require the Revolving
Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which such
Revolving Credit Lenders will participate. The Administrative Agent will, promptly upon receipt of
such notice, give notice to each such Revolving Credit Lender, specifying in such notice such
Lender’s Pro Rata Percentage of such Swingline Loan or Loans. In furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Revolving Credit Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline
Loans pursuant to this paragraph 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 Revolving Credit Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis
mutandis, to the payment obligations of the Lenders) and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other person on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower (or other person liable for obligations of the Borrower) of any default in the
payment thereof.
SECTION 2.23.
Letters of Credit. (a)
General. The Borrower may request the issuance of a
Letter of Credit for its own account or for the account of any of its wholly owned Subsidiaries (in
which case the Borrower and such wholly owned Subsidiary shall
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be co-applicants with respect to such Letter of Credit), in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time on and after the
Closing Date and prior to the date that is 30 days prior to the Revolving Credit Maturity Date
while the L/C Commitment remains in effect. This Section shall not be construed to impose an
obligation upon the 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
Credit), the Borrower shall hand deliver or fax to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, 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, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare such Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if, and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed $75,000,000 and
(ii) the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.
(c)
Expiration Date. Each Letter of Credit shall expire at the close of business on the
earlier of the date one year after the date of the issuance of such Letter of Credit and the date
that is five Business Days prior to the Revolving Credit Maturity Date, unless such Letter of
Credit expires by its terms on an earlier date;
provided,
however, that a Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter of Credit shall be
renewed automatically for additional consecutive periods of 12 months or less (but not beyond the
date that is five Business Days prior to the Revolving Credit Maturity Date) unless the Issuing
Bank notifies the beneficiary thereof at least 30 days (or such longer period as may be specified
in such Letter of Credit) prior to the then-applicable expiration date that such Letter of Credit
will not be renewed.
(d)
Participations. By the issuance of a Letter of Credit and without any further action on
the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving
Credit Lender, and each such Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its obligations under any
other Finance Document) forthwith on the date due as provided in Section 2.02(f). Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
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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.
(e)
Reimbursement. If the Issuing Bank shall make any L/C Disbursement in respect of a
Letter of Credit, the Borrower shall pay to the Administrative Agent an amount equal to such L/C
Disbursement not later than two hours after the Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later than 10:00 a.m.,
New York City time, on the immediately following Business Day.
(f)
Obligations Absolute. The Borrower’s 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 Finance
Document, or any term or provision therein;
(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 Finance Document;
(iii) the existence of any claim, setoff, defense or other right that the Borrower,
any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or
other Affiliate thereof or any other person may at any time have against the beneficiary
under any Letter of Credit, the Issuing Bank, the Administrative Agent or any Lender or any
other person, whether in connection with this Agreement, any other Finance Document or any
other related or unrelated agreement or transaction (other than payment in full of the
Obligations);
(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 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 the 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 Section, constitute a legal or equitable discharge of the Borrower’s
obligations hereunder.
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Without limiting the generality of the foregoing, it is expressly understood and agreed that
the absolute and unconditional obligation of the Borrower hereunder to reimburse L/C Disbursements
will not be excused by the gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank’s gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the terms thereof. It is
further understood and agreed that the 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) the 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 with the terms thereof shall, in each case, be deemed not to
constitute gross negligence or wilful misconduct of the Issuing Bank.
(g)
Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall as promptly as possible give telephonic notification, confirmed by
fax, to the Administrative Agent and the Borrower of such demand for payment and whether the
Issuing Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Revolving Credit Lenders with respect to any such L/C Disbursement.
(h)
Interim Interest. If the Issuing Bank shall make any L/C Disbursement in respect of a
Letter of Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full on such
date, the unpaid amount thereof shall bear interest for the account of the Issuing Bank, for each
day from and including the date of such L/C Disbursement, to but excluding the earlier of the date
of payment by the Borrower or the date on which interest shall commence to accrue thereon as
provided in Section 2.02(f), at the rate per annum that would apply to such amount if such amount
were an ABR Revolving Loan.
(i)
Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at any time by
giving 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower, and
may be removed at any time by the Borrower by notice to the Issuing Bank, the Administrative Agent
and the Lenders. Upon the acceptance of any
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appointment as the Issuing Bank hereunder by a Lender that shall agree to serve as successor
Issuing Bank, such successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Bank. At the time such removal or resignation shall become
effective, the Borrower shall pay all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The
acceptance of any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such agreement, (i) such
successor Lender shall have all the rights and obligations of the previous Issuing Bank under this
Agreement and the other Finance Documents and (ii) references herein and in the other Finance
Documents to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of the Issuing Bank hereunder, the retiring Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Finance Documents with respect to Letters of Credit issued by it
prior to such resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j)
Cash Collateralization. If any Event of Default shall occur and be continuing, the
Borrower shall, within one Business Day after it receives notice from the Administrative Agent or
the Majority Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit) thereof and of the amount to be
deposited, deposit in an account with the Collateral Agent, for the benefit of the Revolving Credit
Lenders, an amount in cash equal to the L/C Exposure as of such date. Such deposit shall be held by
the Collateral Agent as collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits
in Cash Equivalent Investments, which investments shall be made at the option and sole discretion
of the Collateral Agent, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall (i) automatically
be applied by the Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for
which it has not been reimbursed, (ii) be held for the satisfaction of the reimbursement
obligations of the Borrower for the L/C Exposure at such time and (iii) if the maturity of the
Loans has been accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit), be applied to satisfy the Obligations. If the
Borrower 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 Borrower within three Business Days after all Events of Default have been cured or
waived.
(k)
Additional Issuing Banks. The Borrower may, at any time and from time to time with the
consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed)
and such Lender, designate one or more additional
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Lenders to act as an issuing bank under the terms of this Agreement. Any Lender designated as
an issuing bank pursuant to this paragraph (k) shall be deemed to be an “Issuing Bank” (in addition
to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with
respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and
such Lender.
SECTION 2.24.
Incremental Commitments. (a) The Borrower may, by written notice to the
Administrative Agent from time to time, request Incremental Term Loan Commitments and/or additional
Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more
Incremental Term Lenders or persons who will become Revolving Credit Lenders (which may include any
existing Lender);
provided that each such person shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice
shall set forth (i) the amount of the Incremental Term Loan Commitments and/or additional Revolving
Credit Commitments being requested (which (i) in the case of Incremental Term Loan Commitments,
shall be in minimum principal amounts of $20,000,000 or, if lower, equal to the remaining
Incremental Amount, and (ii) in the case of additional Revolving Credit Commitments, shall be in
minimum principal amounts of $5,000,000 or, if lower, equal to the remaining Incremental Amount),
(ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit
Commitments are requested to become effective (which shall not be less than 10 Business Days nor
more than 60 days after the date of such notice), and (iii) in the case of Incremental Term Loan
Commitments, whether such Incremental Term Loan Commitments are commitments to make additional
Tranche B-2 Term Loans or commitments to make term loans with terms different from the Tranche B-2
Term Loans (“
Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or additional Revolving Credit Lender
shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such
other documentation as the Administrative Agent shall reasonably specify to evidence the Commitment
of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan
Commitments shall specify the terms of the Incremental Term Loans to be made thereunder; provided
that, without the prior written consent of the Majority Lenders, (i) the Other Term Loans shall
rank pari passu or junior in right of payment and of security with the Term Loans and (except as to
pricing and amortization) shall have the same terms as the Term Loans, (ii) the final maturity date
of any Other Term Loans shall be no earlier than the Tranche B-2 Term Loan Maturity Date, (iii) the
weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted
average life to maturity of the Tranche B-2 Term Loans and (iv) if the initial yield on such Other
Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin
above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are
initially made at a discount or the Lenders making the same receive a fee directly or indirectly
from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as
a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID
divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four)
exceeds by more than 50 basis points (the amount of such excess above 50 basis points being
referred to herein as the “Yield Differential”) the
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Applicable Percentage then in effect for Eurodollar Term Loans of any Class, then the
Applicable Percentage then in effect for Term Loans of such Class shall automatically be increased
by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative
Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to
the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments
and/or additional Revolving Credit Commitments evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or additional
Revolving Credit Commitment shall become effective under this Section 2.24 unless (i) on the date
of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Article IV shall be
satisfied and the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall
have received legal opinions, board resolutions and other closing certificates and documentation
reasonably requested by the Administrative Agent and consistent with those delivered on the
Restatement Effective Date under the Amendment Agreement and such additional documents and filings
(including amendments to the Mortgages and other Security Documents and title endorsement
bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term
Loans, and/or additional Revolving Loans are secured by the Collateral ratably with the existing
Term Loans and Revolving Loans and (iii) the Borrower would be in pro forma compliance with Section
6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the
Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if
made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, the
Revolving Loans (if any) to be made thereunder on the date of effectiveness of such Commitment and
the application of the proceeds therefrom on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in
consultation with the Borrower, take any and all action as may be reasonably necessary to ensure
that all Incremental Term Loans, and/or additional Revolving Loans (other than Other Term Loans),
when originally made, are included in each Borrowing of outstanding Tranche B-2 Term Loans or
Revolving Loans on a pro rata basis. This may be accomplished by requiring each outstanding
Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each
Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding
Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term
Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term
Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing, then the
interest rate thereon for such Interest Period and the other economic consequences thereof shall be
as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any
Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section
2.11(a)(i)
66
required to be made after the making of such Incremental Term Loans shall be ratably increased
by the aggregate principal amount of such Incremental Term Loans.
SECTION 2.25.
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to
the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(i) if any Swingline Exposure or L/C Exposure exists at the time a Revolving Credit
Lender is a Defaulting Lender, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) prepay such Swingline Exposure or, if agreed by the
Swingline Lender, cash collateralize the Swingline Exposure of the Defaulting Lender on
terms satisfactory to the Swingline Lender and (y) cash collateralize such Defaulting
Lender’s L/C Exposure in accordance with the procedures set forth in Section 2.23(j) for so
long as such L/C Exposure is outstanding; and
(ii) the Swingline Lender shall not be required to fund any Swingline Loan and the
Issuing Bank shall not be required to issue, amend or increase any Letter of Credit unless
it is satisfied that cash collateral will be provided by the Borrower in accordance with
Section 2.25(a)(i).
(b) Without limiting Section 9.08, this Section 2.25 may not be amended, waived or otherwise
modified without the prior written consent of the Administrative Agent, the Swingline Lender and
each Issuing Bank.
ARTICLE III
Each Obligor makes the representations and warranties set out in this Article III to each
Finance Party:
SECTION 3.01.
Status. It and each of its Subsidiaries is a limited liability company,
general partnership, limited partnership or corporation (or, as applicable in a jurisdiction
outside the United States, an organization having an equivalent status in such jurisdiction)
(except Sea Survey II and Sea Survey III, each of which is an unlimited liability corporation and
Veritas Geophysical (Canada) Corp., which is an unlimited liability company), duly formed and
validly existing under the law of its jurisdiction of formation. It and each of its Subsidiaries
has the corporate, company, partnership or organizational power to own its assets and carry on its
business as it is being conducted.
SECTION 3.02.
Binding Obligations. Subject to the Legal Reservations, (a) the obligations
expressed to be assumed by it in each Transaction Document to which it is a party, or under which
it is otherwise obligated to perform, are legal, valid, binding and enforceable obligations, and
(b) (without limiting the generality of clause (a) above), each Security Document to which it is a
party, or under which it is otherwise obligated to
67
perform, creates the security interests which that Security Document purports to create and
those security interests are valid and effective.
SECTION 3.03.
Non-Conflict with Other Obligations. The entry into and performance by it of,
and the transactions contemplated by, the Transaction Documents and the granting of the Security do
not and will not conflict with (a) any law or regulation applicable to it, (b) the constitutional
documents of any member of the Group or (c) any material agreement or material instrument binding
upon it or any member of the Group or any of its, or any member of the Group’s, assets or
constitute a default or termination event (however described) under any such agreement or
instrument.
SECTION 3.04.
Power and Authority. It has the corporate, company, partnership or
organizational power to enter into, perform and deliver, and has taken all necessary action to
authorize its entry into, performance and delivery of, the Transaction Documents to which it is or
will be a party, or under which it is obligated to perform, and the transactions contemplated by
those Transaction Documents. No limit on its corporate, company, partnership or organizational
powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or
indemnities contemplated by the Transaction Documents to which it is a party.
SECTION 3.05.
Validity and Admissibility in Evidence. All Authorizations required (a) to
enable it lawfully to enter into, exercise its rights and comply with its obligations under the
Transaction Documents to which it is a party, or under which it is obligated to perform, and (b) to
make the Transaction Documents to which it is a party, or under which it is obligated to perform,
admissible in evidence in its Relevant Jurisdictions other than any actions specifically referred
to in the legal opinions delivered under Section 4.02(a) of the Original Credit Agreement or under
Section 6(b) of the Amendment and Restatement Agreement and which are not taken by the Finance
Parties (where such actions are actions to be taken voluntarily by the Finance Parties) have been
obtained or effected and are in full force and effect. All Authorizations necessary for the
conduct of the business, trade and ordinary activities of members of the Group have been obtained
or effected and are in full force and effect, except where failure to do so or to be so could not
be reasonably expected to have a Material Adverse Effect.
SECTION 3.06.
Governing Law and Enforcement. Subject to the Legal Reservations, (a) the
choice of law specified in each Finance Document as the governing law of such Finance Document will
be recognized and enforced in its Relevant Jurisdictions, and (b) any judgment obtained in New York
(or in the jurisdiction of the governing law of such Finance Document) in relation to a Finance
Document will be recognized and enforced in its Relevant Jurisdictions.
SECTION 3.07.
Solvency. (a) Immediately after the consummation of the Transactions to
occur on the Closing Date and immediately following the making of each Loan and after giving effect
to the application of the proceeds of each Loan, each Obligor is Solvent (“
Solvent” meaning that
(i) the fair value of the assets of such Obligor will exceed its then-existing debts and
liabilities, subordinated, contingent or otherwise; (ii) the present fair saleable value of the
property of such Obligor is not less than the
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amount that will be required to pay the probable liability of its then-existing debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) such Obligor reasonably believes that it will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured (considering all financing alternatives and potential asset sales reasonably
available to such Obligor); and (iv) such Obligor 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).
(b) No (i) corporate action, legal proceeding or other procedure or step described in
paragraph (g) or (h) of Article VII, or (ii) creditors’ process described in paragraph (g) or (h)
of Article VII has been taken or, to the knowledge of Parent, threatened in relation to a member of
the Group, and none of the circumstances described in paragraph (g) or (h) of Article VII applies
to a member of the Group.
SECTION 3.08.
No Filing or Stamp Taxes. Under the laws of its Relevant Jurisdiction, it is
not necessary that the Finance Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees
be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance
Documents other than any actions specifically referred to in the legal opinions delivered under
Section 4.02(a) of the Original Credit Agreement or under Section 6(b) of the Amendment and
Restatement Agreement and which are not taken by the Finance Parties (where such actions are
actions to be taken voluntarily by the Finance Parties).
SECTION 3.09.
Deduction of Tax. The Borrower is not required to make any deduction for or,
on account of, Tax from any payment it may make under any Finance Document, assuming that each
Lender is a U.S. Qualifying Lender.
SECTION 3.10.
No Default. (a) No Event of Default and, on the Closing Date and the
Restatement Effective Date, no Default is continuing or would result from the making of the Loans
or the entry into, the performance of, or any transaction contemplated by, any Transaction
Document.
(b) No other event or circumstance is outstanding which constitutes (or, with the expiry of
a grace period, the giving of notice, the making of any determination or any combination of any of
the foregoing, would constitute) a default or termination event (however described) under any other
agreement or instrument which is binding on it or any of its Subsidiaries, or to which its (or any
of its Subsidiaries’) assets are subject, which has or is reasonably likely to have a Material
Adverse Effect.
SECTION 3.11.
Federal Reserve Regulations. (a) None of Parent, the Borrower or any of the
other 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.
69
(b) No part of the proceeds of any Loan or 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 the provisions of the Regulations of the Board, including Regulation T, U or
X.
SECTION 3.12.
Investment Company Act. None of Parent, the Borrower or any Subsidiary is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.
SECTION 3.13.
ERISA. Each U.S. Group Member and its ERISA Affiliates are in compliance in
all material respects with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events, could reasonably be expected to
result in material liability of any U.S. Group Member or any of its ERISA Affiliates. The present
value of all benefit liabilities under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation date
applicable thereto, exceed the fair market value of the assets of such Plan by an amount in excess
of $5,000,000, and the present value of all benefit liabilities of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the last annual valuation dates applicable thereto, exceed the fair market value of the
assets of all such underfunded Plans by an amount in excess of $5,000,000.
SECTION 3.14.
Use of Proceeds. The Borrower will (a) use the proceeds of the Loans and will
request the issuance of Letters of Credit only for the purposes specified in the introductory
statement to this Agreement, and (b) use the proceeds of Incremental Term Loans only for the
purposes specified in the applicable Incremental Assumption Agreement.
SECTION 3.15.
No Misleading Information. (a) Any factual information, including the factual
information set forth in the Confidential Information Memorandum, provided by or on behalf of any
member of the Group, or by or on behalf of the Target and its Subsidiaries prior to the Closing
Date, to any of the Finance Parties was true and accurate in all material respects (in the case of
the Target or its Subsidiaries, to Parent’s knowledge) as at the date of the relevant report or
document containing the information or (as the case may be) as at the date the information is
expressed to be given.
(b) No event or circumstance has occurred or arisen, no information has been omitted from
the information provided by or on behalf of any member of the Group, or by or on behalf of the
Target and its Subsidiaries prior to the Closing Date, and no information has been given or
withheld that results in the information, opinions, intentions, forecasts or projections contained
in such information provided being untrue or misleading in any material respect (in the case of the
Target or its Subsidiaries, to Parent’s knowledge).
70
(c) All material information provided by or on behalf of any member of the Group, or by or
on behalf of the Target and its Subsidiaries, to a Finance Party in connection with the Merger on
or before the Closing Date and not superseded before that date is accurate and not misleading in
any material respect (in the case of the Target or its Subsidiaries, to Parent’s knowledge), and
all projections prepared by or on behalf of any member of the Group, or by or on behalf of the
Target and its Subsidiaries, which are provided to any Finance Party on or before the Closing Date
have been prepared in good faith on the basis of assumptions which were reasonable at the time at
which they were prepared and supplied (in the case of the Target or its Subsidiaries, to Parent’s
knowledge).
(d) All other written information provided by or on behalf of any member of the Group, or by
or on behalf of the Target and its Subsidiaries prior to the Closing Date, including its advisers,
to a Finance Party was true, complete and accurate in all material respects (in the case of the
Target or its Subsidiaries, to Parent’s knowledge) as at the date it was provided and is not
misleading in any respect (in the case of the Target or its Subsidiaries, to Parent’s knowledge).
SECTION 3.16.
Original Financial Statements. (a) Parent’s Original Financial Statements
were prepared in accordance with IFRS or French GAAP, as applicable, consistently applied and the
Original Financial Statements of the Target were prepared in accordance with U.S. GAAP consistently
applied.
(b) Parent’s and the Target’s Original Financial Statements fairly present its and the
Target’s, as applicable, financial condition and results of operations for the relevant Fiscal
Year.
(c) There has been no Material Adverse Effect since the date of Parent’s Original Financial
Statements for the Fiscal Year ended December 31, 2005.
(d) The Original Financial Statements of Parent and the Target do not consolidate the
results, assets or liabilities of any person or business which does not form part of the Group
(exclusive of the Target Group for all periods prior to the Closing Date) or the Target Group,
respectively.
(e) Parent’s and the Target’s most recent financial statements delivered pursuant to Section
5.01 (i) have been prepared in accordance with IFRS (in the case of Parent) and U.S. GAAP (in the
case of the Target), and (ii) fairly present Parent’s and the Target’s, as applicable, consolidated
or unconsolidated as the case may be financial condition as at the end of, and consolidated or
unconsolidated as the case may be results of operations for, the period to which they relate.
(f) As at each Quarter Date, there has been no Material Adverse Effect since the date of the
immediately preceding Quarter Date.
(g) The budgets and forecasts supplied under this Agreement or any Finance Document have
been prepared in good faith on the basis of recent historical information
71
and on the basis of assumptions which were reasonable as at the date they were prepared and
supplied.
SECTION 3.17.
No Proceedings Pending or Threatened. No litigation, arbitration or
administrative proceedings or investigations of, or before, any court, arbitral body or agency
which, if adversely determined, are reasonably likely to have a Material Adverse Effect have (to
the best of its knowledge and belief (having made due and careful inquiry)) been started or
threatened against it or any of its Subsidiaries.
SECTION 3.18.
No Breach of Laws. (a) It has not (and none of its Subsidiaries has) breached
any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.
(b) No labor disputes are current or, to the best of its knowledge and belief (having made
due and careful inquiry), threatened against any member of the Group which have or are reasonably
likely to have a Material Adverse Effect.
SECTION 3.19.
Environmental Laws. (a) Each member of the Group is in compliance with
Section 5.10 and, to the best of its knowledge and belief (having made due and careful inquiry), no
circumstances have occurred which would prevent such compliance in a manner or to an extent which
has or is reasonably likely to have a Material Adverse Effect.
(b) No Environmental Claim has been commenced or (to the best of its knowledge and belief
(having made due and careful inquiry)) is threatened against any member of the Group where that
claim has or is reasonably likely, if determined against that member of the Group, to have a
Material Adverse Effect.
SECTION 3.20.
Taxation. (a) It is not (and none of its Subsidiaries is) materially overdue
in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the
payment of any amount in respect of Tax of $10,000,000 (or its equivalent in any other currency) or
more.
(b) No claims or investigations are being made or conducted against it (or any of its
Subsidiaries) with respect to Taxes such that a liability of, or claim against, any member of the
Group of $10,000,000 (or its equivalent in any other currency) or more is reasonably likely to
arise.
SECTION 3.21.
Security and Financial Indebtedness. (a) No Security or Quasi-Security exists
over all or any of the present or future assets of any member of the Group other than as permitted
by this Agreement.
(b) No member of the Group has any Financial Indebtedness outstanding other than as
permitted by this Agreement.
SECTION 3.22.
Ranking. (a) Subject to the terms of the Intercreditor Agreement, its payment
obligations under the Finance Documents to which it is a party rank at least
pari passu in right of
payment with all of its other present and future senior
72
indebtedness, except for indebtedness mandatorily preferred by laws of general application to
companies.
(b) Subject to the terms of the Intercreditor Agreement, the Transaction Security has or
will have first ranking priority and it is not subject to any prior ranking or pari passu ranking
Security except Permitted Security (excluding any Permitted Security referred to in clauses (b) (to
the extent securing subordinated indebtedness), (j) (to the extent specified in the applicable
consent) or (l) of the definition thereof).
SECTION 3.23.
Good Title to Assets. It and each of its Subsidiaries has a good, valid and
marketable title to, or valid leases or licenses of, and all appropriate Authorizations to use, the
assets necessary to carry on its business as presently conducted, except where failure to do so
could not be reasonably expected to have a Material Adverse Effect.
SECTION 3.24.
Sanctioned Persons. None of Parent, the Borrower or any Subsidiary nor, to the
knowledge of Parent, any director, officer, agent, employee or Affiliate of the Borrower or any
Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“
OFAC”); and no Borrower will directly or indirectly use
the proceeds of the Loans or the Letters of Credit or otherwise make available such proceeds to any
person, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
SECTION 3.25.
Legal and Beneficial Ownership. (a) It and each of its Subsidiaries is the
sole legal and beneficial owner of the respective assets over which it purports to grant Security.
(b) All the Shares acquired prior to the date of this Agreement are, and those acquired
after the date of this Agreement will be, legally and beneficially owned by Parent, the Target or
the applicable Subsidiary free from any claims, third party rights or competing interests (other
than any claims, third party rights or competing interests contained in the constitutional
documents or contractual arrangements of the issuer of such Shares at the time such Shares became
subject to the Transaction Security).
SECTION 3.26.
Shares. The Shares of any member of the Group which are subject to the
Transaction Security on the Closing Date are fully paid and not subject to any option to purchase
or similar rights. The constitutional documents of companies whose Shares are subject to the
Transaction Security on the Closing Date do not and could not restrict or inhibit any transfer of
those Shares on creation or enforcement of the Transaction Security other than as set forth on
Schedule 3.26.
SECTION 3.27.
Intellectual Property. It and each of its Subsidiaries (a) is the sole legal
and beneficial owner of, or has licensed to it on normal commercial terms, all the Intellectual
Property that is material in the context of its business and that is required by it in order to
carry on its business as it is being presently conducted, (b) does not (nor does any of its
Subsidiaries), in carrying on its businesses, infringe any Intellectual
73
Property of any third party in any respect which would be reasonably likely to have a Material
Adverse Effect, and (c) has taken all formal or procedural actions (including payment of fees)
required to maintain any material Intellectual Property owned by it.
SECTION 3.28.
Accounting Reference Date. The Accounting Reference Date of each Obligor and
Material Subsidiary is December 31.
SECTION 3.29.
Centre of Main Interests and Establishments. For the purposes of The Council
of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “
Regulation”), the
centre of main interest (as that term is used in Article 3(1) of the Regulation) of Parent and each
Foreign Subsidiary is situated in such entity’s jurisdiction of incorporation and it has no
“establishment” (as that term is used in Article 2(h) of the Regulations) in any other
jurisdiction.
ARTICLE IV
The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder are subject to the satisfaction of the following conditions on the date of each
Borrowing (other than a conversion or a continuation of a Borrowing), including each Borrowing of a
Swingline Loan and on the date of each issuance, amendment, extension or renewal of a Letter of
Credit (each such event being called a “Credit Event”):
(a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02) or, in
the case of the issuance, amendment, extension or renewal of a Letter of Credit, the Issuing Bank
and the Administrative Agent shall have received a notice requesting the issuance, amendment,
extension or renewal of such Letter of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent shall have
received a notice requesting such Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III and in each other Finance
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.
(c) At the time of and immediately after such Credit Event, no Default or Event of Default
shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by the Borrower
and Parent on the date of such Credit Event as to the matters specified in paragraphs (b) and (c)
of this Article IV.
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ARTICLE V
Each of Parent and the Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Finance
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, unless the Majority Lenders shall
otherwise consent in writing:
SECTION 5.01.
Financial Statements. Parent shall supply (in sufficient copies for all the
Lenders, if the Administrative Agent so requests) to the Administrative Agent (and the
Administrative Agent shall promptly distribute to the Lenders):
(a) as soon as they are available, but in any event within six months after the end of each
of its Fiscal Years, its audited consolidated financial statements for that Fiscal Year;
(b) within 60 days after the end of each of the first and third quarter of each Fiscal Year
(and within 75 days after the end of the second quarter of each Fiscal Year), its unaudited
consolidated financial statements for that Financial Quarter;
(c) within 90 days after the beginning of each of its Fiscal Years, a consolidated budget
for such Fiscal Year (including a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such Fiscal Year and setting forth the
assumptions used for purposes of preparing such budget).
(b) The Compliance Certificate shall, among other things, (i) certify that no Event of
Default or Default has occurred or, if such an Event of Default or Default has occurred, specify
the nature and extent thereof and any corrective action taken or proposed to be taken with respect
thereto, (ii) set out (in reasonable detail) computations as to (x) compliance with Section 6.02
and (y) the Available Amount as of the end of the fiscal period then ended and any uses of the
Available Amount during such period (and, in the event that any Permitted Acquisition, Permitted
Loan, Permitted Investment or Restricted Payment for which the Available Amount could have been
used but for the existence of a basket has occurred during such period, the usage and remaining
amount of such basket) and (iii) in the case of a Compliance Certificate delivered with the
financial statements required by Section 5.01(a), set forth Parent’s calculation of Excess Cash
Flow for the Fiscal Year then ended.
(c) Each Compliance Certificate shall be signed by two authorized officers of Parent and, if
required to be delivered with the consolidated Annual Financial Statements
75
of Parent, shall be reported on by Parent’s Auditors in a form acceptable to the Auditors and
reasonably acceptable to the Administrative Agent.
SECTION 5.03.
Requirements as to Financial Statements. (a) Parent shall ensure that each
set of Annual Financial Statements and Quarterly Financial Statements includes a balance sheet,
profit and loss account and cashflow statement. In addition, Parent shall ensure that each set of
Annual Financial Statements shall be audited by the Auditors.
(b) Each set of financial statements delivered pursuant to Section 5.01 (i) shall be
certified by an authorized officer of the relevant company as presenting fairly, in accordance with
applicable accounting standards, its financial condition and operations as at the date as at which
those financial statements were prepared; (ii) in the case of consolidated financial statements
(annual and quarterly) of the Group, shall be accompanied by a statement by the management of
Parent, comparing actual performance for the period to which the financial statements relate to the
actual performance for the corresponding period in the preceding Fiscal Year of the Group; and
(iii) in the case of Parent, shall be prepared in accordance with IFRS and accounting practices
applied in the preparation of the Base Case Model, unless, in relation to any set of financial
statements, Parent notifies the Administrative Agent that there has been a change in IFRS or the
accounting practices and its Auditors deliver to the Administrative Agent (x) a description of any
change necessary for those financial statements to reflect IFRS or accounting practices upon which
the Base Case Model was prepared; and (y) sufficient information, in form and substance as may be
reasonably required by the Administrative Agent, to enable the Lenders to determine whether Section
6.02 has been complied with and to make an accurate comparison between the financial position
indicated in those financial statements and the Base Case Model. Any reference in this Agreement
to any financial statements shall be construed as a reference to those financial statements as
adjusted to reflect the basis upon which the Base Case Model was prepared.
(c) If the Administrative Agent wishes to discuss the financial position of any member of
the Group with the Auditors, the Administrative Agent may notify Parent, stating the questions or
issues which the Administrative Agent wishes to discuss with the Auditors. In this event, Parent
must authorize the Auditors (at the reasonable expense of Parent) (i) to discuss the financial
position of each member of the Group with the Administrative Agent on request from the
Administrative Agent; and (ii) to disclose to the Administrative Agent for the Finance Parties any
information which the Administrative Agent may reasonably request.
SECTION 5.04.
Presentations. Once in every Fiscal Year, or more frequently if requested to
do so by the Administrative Agent if the Administrative Agent reasonably suspects a Default is
continuing or may have occurred or may occur a reasonably short amount of time after making such
request, at least two authorized officers of Parent (one of whom shall be the Chief Financial
Officer or Deputy Chief Financial Officer of Parent) must give a presentation to the Finance
Parties about (a) the on-going business and financial performance of the Group; and (b) any other
matter which a Finance Party may reasonably request relating to any such suspected Default.
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SECTION 5.05.
Information; Miscellaneous. Parent shall supply (in sufficient copies for all
the Lenders, if the Administrative Agent so requests) to the Administrative Agent (and the
Administrative Agent shall promptly distribute to the Lenders) (a) at the same time as they are
dispatched, copies of all documents dispatched by Parent to its shareholders generally (or any
class of them) or dispatched by Parent or any Obligor to its creditors generally (or any class of
them); (b) promptly upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened in writing or pending against any member
of the Group, and which, if adversely determined, are reasonably likely to have a Material Adverse
Effect; (c) promptly upon becoming aware of the relevant claim, the details of any disposal or
insurance claim which will require a prepayment under Section 2.13; and (d) promptly on request,
such further information regarding the financial condition, assets and operations of the Group
and/or any member of the Group (including any requested amplification or explanation of any item in
the financial statements, budgets or other material provided by any Obligor under this Agreement or
any Finance Document, any changes to senior management of Parent and an up to date copy of its
shareholders’ register (or equivalent in its jurisdiction of incorporation), to the extent such
document exists), as any Finance Party through the Administrative Agent may reasonably request;
provided that Parent shall not be obliged to supply to the Administrative Agent (or to any Lender)
copies of any Auditors’ letter or other communications to the board of directors or management of
the Group.
SECTION 5.06.
Notification of Default. (a) Each Obligor shall notify the Administrative
Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence (unless that Obligor is aware that a notification has already been provided by
another Obligor).
(b) Promptly upon a request by the Administrative Agent, Parent shall supply to the
Administrative Agent a certificate signed by two of its senior officers on its behalf certifying
that no Default is continuing (or if a Default is continuing, specifying the Default and the steps,
if any, being taken to remedy it).
SECTION 5.07.
“Know Your Customer” Checks. (a) If (i) the introduction of, or any change in
(or in the interpretation, administration or application of), any law or regulation made after the
Closing Date; (ii) any change in the status of an Obligor or the composition of the shareholders of
an Obligor after the Closing Date; or (iii) a proposed assignment or transfer by a Lender of any of
its rights and/or obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer, obliges the Administrative Agent or any Lender (or, in the case of clause
(iii) above, any prospective new Lender) to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is not already available
to it, each Obligor shall promptly upon the request of the Administrative Agent or any Lender
supply, or ensure the supply of, such documentation and other evidence as is reasonably requested
by the Administrative Agent (for itself or on behalf of any Lender) or any Lender (for itself or,
in the case of the event described in clause (iii) above, on behalf of any prospective new Lender)
in order for the Administrative Agent, such Lender or, in the case of the event described in clause
(iii) above, any prospective new Lender, to carry
77
out and be satisfied with the results of all necessary “know your customer” or other similar
checks under all applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
(b) Each Lender shall promptly upon the request of the Administrative Agent supply, or
ensure the supply of, such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself) in order for the Administrative Agent to carry out and be
satisfied with the results of all necessary “know your customer” or other similar checks under all
applicable laws and regulations, including the USA PATRIOT Act, pursuant to the transactions
contemplated in the Finance Documents.
(c) Parent shall, by not less than 10 Business Days’ prior written notice to the
Administrative Agent, notify the Administrative Agent (which shall promptly notify the Lenders) of
its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to
the Guarantee Agreement or the Norwegian Guarantee Agreement, as applicable.
(d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of
such Additional Guarantor obliges the Administrative Agent or any Lender to comply with “know your
customer” or similar identification procedures in circumstances where the necessary information is
not already available to it, Parent shall promptly upon the request of the Administrative Agent or
any Lender supply, or ensure the supply of, such documentation and other evidence as is reasonably
requested by the Administrative Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective new Lender) in order for the Administrative Agent or such
Lender or any prospective new Lender to carry out and be satisfied with the results of all
necessary “know your customer” or other similar checks under all applicable laws and regulations
pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.
SECTION 5.08.
Authorizations. Each Obligor shall promptly (a) obtain, comply with and do all
that is necessary to maintain in full force and effect; and (b) supply certified copies to the
Administrative Agent of, any Authorization required under any law or regulation of a Relevant
Jurisdiction to (i) enable it to perform its obligations under the Finance Documents; (ii) ensure
the legality, validity, enforceability or admissibility in evidence of any Finance Document; and
(iii) carry on its business where failure to do so has or is reasonably likely to have a Material
Adverse Effect.
SECTION 5.09.
Compliance with Laws. Each Obligor shall (and Parent shall ensure that each
member of the Group will) comply in all respects with all laws to which it may be subject, if
failure to so comply has or is reasonably likely to have a Material Adverse Effect.
SECTION 5.10.
Environmental Compliance. Each Obligor shall (and Parent shall ensure that
each member of the Group will) (a) comply with all Environmental Law; (b) obtain, maintain and
ensure compliance with all requisite Environmental Permits; and (c) implement procedures to monitor
compliance with and to prevent liability under any
78
Environmental Law, in each case, where failure to do so has or is reasonably likely to have a
Material Adverse Effect.
SECTION 5.11.
Environmental Claims. Each Obligor shall (through Parent), promptly upon
becoming aware of the same, inform the Administrative Agent in writing of (a) any Environmental
Claim against any member of the Group which is current, pending or threatened; and (b) any facts or
circumstances which are reasonably likely to result in any Environmental Claim being commenced or
threatened against any member of the Group, in each case, where such claim, if determined against
such member of the Group, has or is reasonably likely to have a Material Adverse Effect.
SECTION 5.12.
Taxation. Each Obligor shall (and Parent shall ensure that each member of the
Group will) pay and discharge all material Taxes imposed upon it or its assets within the time
period allowed without incurring penalties, unless (and only to the extent that) (a) such payment
is being contested in good faith; (b) adequate reserves are being maintained for those Taxes and
the costs required to contest them which have been disclosed in its latest financial statements
delivered to the Administrative Agent under Section 5.01; and (c) such payment can be lawfully
withheld.
SECTION 5.13.
Preservation of Assets. Each Obligor shall (and Parent shall ensure that each
member of the Group will) maintain in good working order and condition (ordinary wear and tear
excepted) all of its assets necessary in the conduct of its business.
SECTION 5.14.
Pari Passu Ranking. (a) Subject to the terms of the Intercreditor Agreement,
each Obligor shall ensure that at all times, any payment obligations owing to a Finance Party under
the Finance Documents rank at least
pari passu in right of payment with the claims of all its other
present and future senior indebtedness, except for indebtedness mandatorily preferred by laws of
general application to companies.
(b) Subject to the terms of the Intercreditor Agreement, each Obligor shall ensure that at
all times the Transaction Security has or will have first ranking priority and it is not subject to
any prior ranking or pari passu ranking Security except Permitted Security (excluding any Permitted
Security referred to in clauses (b) (to the extent securing subordinated indebtedness), (j) (to the
extent specified in the applicable consent) or (l) of the definition thereof).
SECTION 5.15.
Merger Documents. (a) Parent shall promptly pay all amounts payable to the
applicable party under any relevant Merger Documents as and when they become due (except to the
extent that any such amounts are being contested in good faith by a member of the Group and where
adequate reserves are set aside for any such payment).
(b) Parent shall (and Parent will ensure that each relevant member of the Group will) take
all reasonable and practical steps to preserve and enforce its rights (or the rights
79
of any other member of the Group) and pursue any claims and remedies arising under any Merger
Documents.
SECTION 5.16.
Insurance. (a) Each Obligor shall (and Parent shall ensure that each member
of the Group will) maintain insurance on, and in relation to, its business and assets against those
risks and to the extent customary for companies carrying on the same or substantially similar
business.
(b) All insurance must be with reputable independent insurance companies or underwriters.
SECTION 5.17.
Pensions. (a) Parent shall ensure that all pension schemes operated by or
maintained for the benefit of members of the Group and/or any of its employees are fully funded in
accordance with the governing provisions of the scheme and as may be required by applicable laws
with any shortfall advised by actuaries of recognized standing being rectified in accordance with
those governing provisions and that no action or omission is taken by any member of the Group in
relation to such a pension scheme which has or is reasonably likely to have a Material Adverse
Effect.
(b) Parent shall promptly notify the Administrative Agent of any material change in the rate
of contributions to any pension schemes mentioned in (a) above paid or recommended to be paid
(whether by the scheme actuary or otherwise) or required (by law or otherwise).
(c) Each U.S. Group Member and its ERISA Affiliates shall comply in all material respects
with the applicable provisions of ERISA and the Code and shall furnish to the Administrative Agent
as soon as possible after, and in any event within ten days after, any Responsible Officer of any
U.S. Group Member or any ERISA Affiliate knows or has reason to know that, any ERISA Event has
occurred that, alone or together with any other ERISA Event, could reasonably be expected to result
in liability of any U.S. Group Member or any ERISA Affiliate in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer of Parent or the Borrower setting forth details as
to such ERISA Event and the action, if any, that Parent or the Borrower proposes to take with
respect thereto.
SECTION 5.18.
Access. Each Obligor shall (and Parent shall ensure that each member of the
Group will) (not more than once in every Fiscal Year unless the Administrative Agent reasonably
suspects a Default is continuing or may occur a reasonably short amount of time thereafter) permit
the Administrative Agent and/or the Collateral Agent and/or accountants or other professional
advisers and contractors of the Administrative Agent or Collateral Agent to have free access, at
all reasonable times and on reasonable notice, at the risk and cost of the Obligor or Borrower to
(a) the premises, assets, books, accounts and records of each member of the Group and (b) meet and
discuss matters with its senior management.
SECTION 5.19.
Intellectual Property. Each Obligor shall (and Parent shall ensure that each
Group member will) (a) preserve and maintain the subsistence and
80
validity of the Intellectual Property necessary for the business of the relevant Group member;
(b) use reasonable efforts to prevent any infringement in any material respect of the Intellectual
Property; (c) make registrations and pay all registration fees and taxes to the extent that Parent
determines in its reasonable commercial judgment that such registration is necessary to maintain
the Intellectual Property in full force and effect and record its interest in that Intellectual
Property; and (d) not use or permit the Intellectual Property to be used in a way or take any step
or omit to take any step in respect of that Intellectual Property that may materially and adversely
affect the existence or value of the Intellectual Property or imperil the right of any member of
the Group to use such property.
SECTION 5.20.
Financial Assistance. To the extent applicable, each Obligor shall (and Parent
shall ensure that each member of the Group will) comply in all respects with Sections 678 or 679 of
the United Kingdom Companies Xxx 0000 and any equivalent legislation in other jurisdictions
including in relation to the execution of the Security Documents and payment of amounts due under
this Agreement.
SECTION 5.21.
Further Assurance. (a) Each Obligor shall (and Parent shall ensure that each
member of the Group will) promptly do all such acts or execute all such documents (including
assignments, transfers, mortgages, charges, notices and instructions) as the Collateral Agent may
reasonably specify (and in such form as the Collateral Agent may reasonably require in favor of the
Collateral Agent or its nominee(s)) (i) to perfect the Security created or intended to be created
under or evidenced by the Security Documents (which may include the execution of a mortgage,
charge, assignment or other Security over all or any of the assets which are, or are intended to
be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies
of the Collateral Agent or the Finance Parties provided by or pursuant to the Finance Documents or
by law; (ii) to confer on the Collateral Agent or the Finance Parties Security over any property
and assets of such Obligor located in any jurisdiction equivalent or similar to the Security
intended to be conferred by or pursuant to the Security Documents; and/or (iii) to facilitate the
realization of the assets which are, or are intended to be, the subject of the Transaction Security
(it being understood that it is the intent of the parties that the Obligations shall be secured by
(x) substantially all the personal property of the Borrower and the other Obligors that are
Domestic Subsidiaries and (y) certain other assets of the Obligors reasonably agreed between the
Collateral Agent and Parent, in each case including real property, mineral interests, vessels and
equipment acquired subsequent to the Closing Date with a fair market value in each instance in
excess of $1,000,000, except to the extent that (A) Transaction Security would not be permitted by
the terms of any Permitted Security existing over such assets or (B) the cost of obtaining
Transaction Security would be disproportionate to the benefit thereof). For the avoidance of
doubt, upon any sale or other transfer by any Obligor of any Collateral that is permitted under
this Agreement and the other Finance Documents to any person that is not an Obligor, the
Transaction Security in such Collateral shall be automatically released.
(b) Each Obligor shall (and Parent shall ensure that each member of the Group will) take all
such action as is available to it (including making all filings and
81
registrations) as may be necessary for the purpose of the creation, perfection, protection or
maintenance of any Security conferred or intended to be conferred on the Collateral Agent or the
Finance Parties by or pursuant to the Finance Documents.
(c) Each Obligor shall (and Parent shall ensure that each member of the Group will) ensure
that at any time that Security is granted to the lenders under the French Revolving Facility
pursuant to the French Revolving Facility Agreement or the French Revolving Facility Security
Documents, such Security shall be granted to the Lenders pursuant to substantially similar
documentation, agreements or arrangements as the Security granted under the Security Documents and
on terms consistent with the Intercreditor Agreement.
(d) Parent will cause (i) any subsequently acquired, organized or reorganized wholly owned
Domestic Subsidiary and (ii) any subsequently acquired, organized or reorganized Foreign Subsidiary
that is (x) a Material Subsidiary, (y) to the extent the Existing Bonds are then outstanding, able
to provide a full and unconditional guarantee of the Existing Bonds under applicable law and the
rules and regulations promulgated by the Securities and Exchange Commission and (z) not treated as
a “controlled foreign corporation” (as that term is defined in Section 957 of the Code and the
applicable regulations thereunder) of the Borrower to become an Additional Guarantor by executing
the Guarantee Agreement (or, in the case of an Additional Guarantor organized under the laws of
Norway, the Norwegian Guarantee Agreement) and each applicable Security Document in favor of the
Collateral Agent.
SECTION 5.22. [Reserved].
SECTION 5.23.
Maintenance of Ratings. Parent and the Borrower shall use commercially
reasonable efforts to cause the credit facilities established under this Agreement to be
continuously rated by S&P and Xxxxx’x. Parent shall use commercially reasonable efforts to
maintain the Corporate Ratings and shall promptly notify the Administrative Agent in writing of any
change in the Corporate Ratings.
ARTICLE VI
SECTION 6.01.
Year-end. Parent shall not change its Accounting Reference Date or its
quarterly accounting period.
SECTION 6.02.
Financial Covenants. Parent shall ensure that the financial condition of the
Group shall be such that:
(a) The ratio of (i) EBITDA to (ii) Total Interest Costs for each Relevant Period specified in
Column 1 below shall not be less than the ratio set out in Column 2 below opposite such Relevant
Period.
82
|
|
|
|
|
Column 1 |
|
|
Any Relevant Period expiring in the |
|
Column 2 |
rolling 12 month period ending |
|
Ratio |
June 30, 2009 |
|
|
4.00:1.00 |
|
September 30, 2009 |
|
|
4.00:1.00 |
|
December 31, 2009 |
|
|
4.00:1.00 |
|
March 31, 2010 |
|
|
4.00:1.00 |
|
June 30, 2010 |
|
|
4.00:1.00 |
|
September 30, 2010 |
|
|
3.50:1.00 |
|
December 31, 2010 |
|
|
3.50:1.00 |
|
March 31, 2011 |
|
|
3.50:1.00 |
|
June 30, 2011 |
|
|
3.50:1.00 |
|
September 30, 2011 |
|
|
3.50:1.00 |
|
December 31, 2011 |
|
|
3.50:1.00 |
|
March 31, 2012 |
|
|
3.50:1.00 |
|
June 30, 2012 |
|
|
3.50:1.00 |
|
September 30, 2012 |
|
|
3.50:1.00 |
|
December 31, 2012 |
|
|
3.50:1.00 |
|
March 31, 2013 |
|
|
4.00:1.00 |
|
June 30, 2013 |
|
|
4.00:1.00 |
|
September 30, 2013 |
|
|
4.00:1.00 |
|
December 31, 2013 |
|
|
4.00:1.00 |
|
March 31, 2014 |
|
|
4.50:1.00 |
|
June 30, 2014 |
|
|
4.50:1.00 |
|
September 30, 2014 |
|
|
4.50:1.00 |
|
December 31, 2014 |
|
|
4.50:1.00 |
|
March 31, 2015 |
|
|
5.00:1.00 |
|
June 30, 2015 |
|
|
5.00:1.00 |
|
September 30, 2015 |
|
|
5.00:1.00 |
|
December 31, 2015 |
|
|
5.00:1.00 |
|
|
|
|
(b) |
|
The Total Leverage Ratio in respect of each Relevant Period specified in Column 1 below
shall not be greater than the ratio set out in Column 2 below opposite such Relevant Period. |
|
|
|
|
|
Column 1 |
|
|
Any Relevant Period expiring in the rolling 12 |
|
Column 2 |
month period ending |
|
Ratio |
June 30, 2009 |
|
|
2.25:1.00 |
|
September 30, 2009 |
|
|
2.25:1.00 |
|
December 31, 2009 |
|
|
2.25:1.00 |
|
March 31, 2010 |
|
|
2.25:1.00 |
|
June 30, 2010 |
|
|
2.25:1.00 |
|
September 30, 2010 |
|
|
2.75:1.00 |
|
December 31, 2010 |
|
|
2.75:1.00 |
|
March 31, 2011 |
|
|
2.75:1.00 |
|
83
|
|
|
|
|
Column 1 |
|
|
Any Relevant Period expiring in the rolling 12 |
|
Column 2 |
month period ending |
|
Ratio |
June 30, 2011 |
|
|
2.75:1.00 |
|
September 30, 2011 |
|
|
2.75:1.00 |
|
December 31, 2011 |
|
|
2.75:1.00 |
|
March 31, 2012 |
|
|
2.50:1.00 |
|
June 30, 2012 |
|
|
2.50:1.00 |
|
September 30, 2012 |
|
|
2.50:1.00 |
|
December 31, 2012 |
|
|
2.50:1.00 |
|
March 31, 2013 |
|
|
2.25:1.00 |
|
June 30, 2013 |
|
|
2.25:1.00 |
|
September 30, 2013 |
|
|
2.25:1.00 |
|
December 31, 2013 |
|
|
2.25:1.00 |
|
March 31, 2014 |
|
|
2.00:1.00 |
|
June 30, 2014 |
|
|
2.00:1.00 |
|
September 30, 2014 |
|
|
2.00:1.00 |
|
December 31, 2014 |
|
|
2.00:1.00 |
|
March 31, 2015 |
|
|
1.75:1.00 |
|
June 30, 2015 |
|
|
1.75:1.00 |
|
September 30, 2015 |
|
|
1.75:1.00 |
|
December 31, 2015 |
|
|
1.75:1.00 |
|
Notwithstanding the foregoing, the Total Leverage Ratio in respect of the first Relevant Period
ending after the consummation of any Qualifying Acquisition shall not be greater than 2.25 to 1.00
(and the ratio set forth opposite such Relevant Period in Column 2 above shall be deemed not to
apply).
(c) The aggregate amount of Capital Expenditures made by the Group in any fiscal year shall
not exceed the greater of (i) $750,000,000 and (ii) 50% of EBITDA for such fiscal year.
(d) The financial covenants set out in this Section 6.02 shall be tested by reference to, and
as at the date of, each of the financial statements and/or each Compliance Certificate delivered
pursuant to Section 5.01 or 5.02, respectively.
SECTION 6.03.
Merger. No Obligor shall (and Parent shall ensure that no other member of the
Group will) enter into any amalgamation, demerger, merger, consolidation or corporate
reconstruction except for a Permitted Merger.
SECTION 6.04.
Change of Business. Parent shall ensure that no substantial change is made to
the general nature of the business of Parent, the Obligors or the Group taken as a whole, as
carried out (or contemplated to be carried out and disclosed to the Administrative Agent) at the
Closing Date, except to the extent of a Qualifying Business Disposal.
84
SECTION 6.05.
Acquisitions. No Obligor shall (and Parent shall ensure that no other member
of the Group will) (a) acquire a company or any shares or securities of any other person (other
than Parent or any Subsidiary, in each case, to the extent otherwise permitted under this
Agreement) or a business (or, in each case, any interest in any of them); or (b) incorporate a
company;
provided that this Section 6.05 does not apply to an acquisition of a company, of shares,
securities or a business (or, in each case, any interest in any of them) or the incorporation of a
company which is a Permitted Acquisition or a Permitted Investment.
SECTION 6.06.
Joint Ventures and Investments. (a) Except as permitted under paragraph (b)
below, no Obligor shall (and Parent shall ensure that no other member of the Group will) (i) enter
into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest
in any Joint Venture; or (ii) transfer any assets or lend to, or guarantee or give an indemnity
for, or give Security for the obligations of a Joint Venture or maintain the solvency of or provide
working capital to any Joint Venture (or agree to do any of the foregoing).
(b) Paragraph (a) above does not apply to any entry into, investment in or acquisition of
(or agreement to acquire) any interest in a Joint Venture or transfer of assets (or agreement to
transfer assets) to a Joint Venture or loan made to, or guarantee given in respect of the
obligations of, a Joint Venture if such transaction is a Permitted Acquisition, a Permitted
Disposal, a Permitted Joint Venture or a Permitted Investment.
SECTION 6.07.
Negative Pledge. (a) Except as permitted under paragraph (b) below, (i) no
Obligor shall (and Parent shall ensure that no other member of the Group will) create or permit to
exist any Security over any of its assets; (ii) no Obligor shall (and Parent shall ensure that no
other member of the Group will) (w) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the
Group; (x) sell, transfer or otherwise dispose of any of its receivables on recourse terms; (y)
enter into any arrangement under which money or the benefit of a bank or other account may be
applied, set-off or made subject to a combination of accounts; or (z) enter into any other
preferential arrangement having a similar effect, in each case, in circumstances where the
arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness
or of financing the acquisition of an asset (any of the transactions described in this clause (ii),
“
Quasi-Security”).
(b) Paragraph (a) above does not apply to any Security or, as the case may be,
Quasi-Security, which is a Permitted Security.
SECTION 6.08.
Disposals. (a) Except as permitted under paragraph (b) below, no Obligor
shall (and Parent shall ensure that no other member of the Group will) enter into a single
transaction or a series of transactions (whether related or not and whether voluntary or
involuntary) to sell, lease, transfer or otherwise dispose of any asset.
85
(b) Paragraph (a) above does not apply to any sale, lease, transfer or other disposal which
is a Permitted Disposal, a Permitted Share Issue or any Permitted Merger referred to in clause (d)
of the definition of Permitted Merger.
SECTION 6.09.
Arm’s Length Basis. (a) Except as permitted by paragraph (b) below, no
Obligor shall (and Parent shall ensure no other member of the Group will) enter into any
transaction with any Affiliate that is not an Obligor on terms that are less favorable to such
Obligor than those that it could have been obtained in a comparable transaction with an unrelated
person or, if there is no such comparable transaction, on terms that are not fair and reasonable to
such Obligor.
(b) The following transactions shall not be a breach of this Section 6.09: (i) intra-Group
loans permitted under Section 6.10; (ii) fees, costs and expenses payable in connection with the
Transactions in the amounts set out in the relevant transaction documents or otherwise or agreed to
by the Administrative Agent; (iii) any employment agreement or other employee compensation plan or
arrangement (including stock purchase and stock option plans) entered into (or amended, restated or
supplemented from time to time) by Parent, Target or any member of the Group or Target Group (x) in
the ordinary course of business of Parent or such member of the Group (or otherwise approved by the
board of directors of Parent) or (y) in connection with the Merger, the Synergies Implementation
Plan or any integration plan relating to the Merger, including, for the avoidance of doubt, any
compensation plan, incentive plan, retention plan, severance plan, stock purchase plan, stock
option plan and any other arrangement involving officers, directors or employees of any member of
the Group (including any member of the Target Group) relating thereto and any transaction
contemplated by any of the foregoing; provided, that, in the case of (A) any such stock option or
free share plans subject to this clause (iii) that are applicable only to executive officers or
other members of senior management, such plans are approved by Parent’s board of directors pursuant
to a recommendation by an appropriate committee of Parent’s board of directors, (B) any other plans
subject to this clause (iii) that are applicable only to Parent’s chief executive officer, Parent’s
presidents and/or the Target’s president, such plans are approved by Parent’s board of directors
pursuant to a recommendation by an appropriate committee of Parent’s board of directors, and (C)
any other plans subject to this clause (iii) that are applicable to executive officers or other
members of senior management (other than the chief executive officer and/or the presidents), such
plans are approved by Parent’s chief executive officer; and (iv) loans or advances to officers,
directors and employees of Parent or any member of the Group made in the ordinary course of
business and consistent with past practices of Parent and the Group in an aggregate amount not to
exceed $5,000,000 outstanding at any one time.
SECTION 6.10.
Loans or Credit. (a) Except as permitted under paragraph (b) below, no
Obligor shall (and Parent shall ensure that no other member of the Group will) be a creditor in
respect of any Financial Indebtedness.
(b) Paragraph (a) above does not apply to a Permitted Loan.
86
SECTION 6.11.
No Guarantees or Indemnities. (a) Except as permitted under paragraph (b)
below, no Obligor shall (and Parent shall ensure that no member of the Group will) incur, or allow
to remain outstanding, any guarantee in respect of any obligation of any person.
(b) Paragraph (a) does not apply to a guarantee which is a Permitted Guarantee.
SECTION 6.12.
Dividends and Share Redemption. (a) Except as permitted under paragraph (b)
below, Parent shall ensure that no member of the Group will (i) declare, make or pay any dividend,
charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other
distribution) (whether in cash or in kind) on, or in respect of, its share capital (or any class of
its share capital); (ii) repay or distribute any dividend or share premium reserve; (iii) pay, or
allow any member of the Group to pay, any management, advisory or other fee to, or to the order of,
any shareholder holding 10% or more of the Equity Interests of Parent; or (iv) redeem, repurchase,
defease, retire or repay any of its share capital or resolve to do so (any of the transactions
described in clauses (i) through (iv) above, a “
Restricted Payment”).
(b) Paragraph (a) does not apply as follows: (i) any dividend or share redemption
constituting a Permitted Share Issue may be made; (ii) (x) any Subsidiary of Parent may pay
dividends or return capital to Parent or any wholly owned Subsidiary of Parent, and (y) any
non-wholly owned Subsidiary of Parent may pay cash dividends to its shareholders generally so long
as Parent or its respective Subsidiary which owns the ownership interests in the Subsidiary paying
such dividends receives at least its proportionate share thereof (based upon its relative holding
of the ownership interests in the Subsidiary paying such dividends and taking into account the
relative preferences, if any, of the various classes of ownership interests of such Subsidiary);
(iii) Parent may, so long as no Event of Default then exists or would result therefrom, pay cash in
lieu of issuing fractional shares of Parent’s common or perpetual preferred Equity Interests; (iv)
so long as no Event of Default then exists or would result therefrom, Parent may repurchase its
common or perpetual preferred Equity Interests (and/or options or warrants in respect thereof)
pursuant to, and in accordance with the terms of, (x) any employment agreement, plan or arrangement
of a type described in Section 6.09(b)(iii), provided that the aggregate amount of cash paid in
respect of all such repurchases in any calendar year pursuant to this subclause (x) does not exceed
$25,000,000 (excluding any amounts paid in connection with stock options of the Target cancelled in
the Merger) from and after the Closing Date and (y) the liquidity contract between Parent and
Société Rothschild & Cie Banque dated November 1, 2005, provided that the net obligations of Parent
pursuant to this clause (y) does not exceed €50,000,000 at any time; (v) Parent may issue and
exchange shares of any class or series of its common or perpetual preferred Equity Interests now or
hereafter outstanding for shares of any other class or series of its common or perpetual preferred
Equity Interests now or hereafter outstanding; (vi) Parent may, in connection with any
reclassification of its common or perpetual preferred Equity Interests and any exchange permitted
by clause (v) above, pay cash in de minimis amounts per share in lieu of issuing fractional shares
of any class or series of its common or perpetual preferred Equity Interests; (vii) Parent may
issue shares of any class or series of its common or perpetual preferred Equity Interests
(including, without limitation,
87
Parent’s American Depositary Shares) required to be issued upon conversion of the Target
Convertible Notes and, after the Closing Date, repurchase up to the same amount of such Equity
Interests (after giving effect to any stock split, reverse stock split or similar event); provided
that Parent may not repurchase more than the Target Share Repurchase Amount pursuant to this clause
(vii); (viii) Parent may make cash payments to the holders of the Target Convertible Notes in
connection with the conversion of such Target Convertible Notes after the Closing Date of up to an
amount equal to the Target Required Cash Amount; (ix) Parent (or the relevant Subsidiary) may
dividend the capital stock of Sercel Holding to Parent’s shareholders (including, without
limitation, to effect a spin-off of Sercel Holding), provided that such transaction results in a
release of the relevant Sercel Companies as guarantors of the Existing Bonds pursuant to Clause
10.04 of the Existing Bond Indenture and as Guarantors hereunder, and provided further that, prior
to such dividend, Parent shall prepay outstanding Term Loans in accordance with Section 2.13(f) in
an amount equal to the fair market value of the capital stock so dividended (as determined by an
internationally recognized valuation firm reasonably satisfactory to the Administrative Agent); and
(x) so long as no Event of Default then exists or would result therefrom, Parent and the
Subsidiaries may make other Restricted Payments (I) other than as provided in subclause (II) below,
in an aggregate amount, together with all other such Restricted Payments made after the Closing
Date, less than or equal to $50,000,000, and (II) from and after the time at which $50,000,000 of
Restricted Payments permitted by this clause (x) have been made, so long as after giving effect to
such Restricted Payment and any financing therefor (A) the Total Leverage Ratio calculated on a pro
forma basis would be less than or equal to 1.50 to 1.00, (B) Parent and its Subsidiaries would have
cash on hand in an aggregate amount of not less than $200,000,000 and (C) the sum of (1) the amount
of unused and available Revolving Credit Commitments plus (2) the amount of unused and available
commitments under the French Revolving Facility shall not be less than $100,000,000, in amounts in
excess of the $50,000,000 provided for in subclause (I) of this clause (x); provided that any
amounts in excess of $100,000,000 used pursuant to this subclause (II) must be in an amount less
than or equal to the Available Amount that is Not Otherwise Applied at the time such transaction is
consummated (it being understood that a single transaction may utilize amounts available, if any,
under both subclause (I) and subclause (II) of this clause (x)).
SECTION 6.13.
Financial Indebtedness. (a) Except as permitted under paragraph (b) below, no
Obligor shall (and Parent shall ensure that no other member of the Group will) incur, or allow to
remain outstanding, any Financial Indebtedness.
(b) Paragraph (a) above does not apply to Financial Indebtedness which is Permitted
Financial Indebtedness.
SECTION 6.14.
Share Capital. No Obligor shall (and Parent shall ensure no other member of
the Group will) issue any shares except pursuant to a Permitted Share Issue.
SECTION 6.15.
Amendments. No Obligor shall (and Parent shall ensure that no member of the
Group will) amend, vary, novate, supplement, supersede, waive or
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terminate any term of a Transaction Document or any other document delivered to the
Administrative Agent pursuant to Section 4.02 of the Original Credit Agreement or to the Collateral
Agent pursuant to Section 5.21, except in writing in accordance with the provisions of Section
9.08.
SECTION 6.16.
Treasury Transactions. No Obligor shall (and Parent shall ensure that no other
member of the Group will) enter into any Treasury Transaction, other than (a) spot and forward
delivery foreign exchange contracts entered into in the ordinary course of business and not for
speculative purposes; and (b) any Treasury Transaction entered into for the hedging of actual or
projected real exposures arising in the ordinary course business of a member of the Group and not
for speculative purposes.
ARTICLE VII
In case of the happening of any of the following events (“Events of Default”):
(a) An Obligor does not pay, on the relevant due date, any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is expressed to be
payable unless (i) its failure to pay is caused by administrative or technical error; and
(ii) payment is made within 2 Business Days of its due date;
(b) Any requirement of Section 6.02 is not satisfied or an Obligor does not comply
with the provisions of Section 6.03, 6.05, 6.07 or 6.08;
(c) An Obligor does not comply with any provision of any Security Document;
(d) An Obligor does not comply with any provision of the Finance Documents (other than
those referred to in paragraphs (a) and (b) above; provided, however, that no Event of
Default under this paragraph (d) will occur if the failure to comply is capable of remedy
and is remedied within 15 Business Days (or in the case of any Event of Default under
Section 5.01, 5.02 or 5.03, 10 Business Days) of the Administrative Agent giving notice to
the Borrower or relevant Obligor or the Borrower or an Obligor becoming aware of the
failure to comply;
(e) Any representation or statement made or deemed to be made by an Obligor in the
Finance Documents or any other document delivered by or on behalf of any Obligor under or
in connection with any Finance Document is or proves to have been incorrect or misleading
in any material respect when made or deemed to be made;
(f) (i) Any Financial Indebtedness of any member of the Group is not paid when due or
within any originally applicable grace period; (ii) any Financial Indebtedness of any
member of the Group is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default
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(however described); (iii) any commitment for any Financial Indebtedness of any member
of the Group is cancelled or suspended by a creditor of any member of the Group as a result
of an event of default (however described); or (iv) any creditor of any member of the Group
becomes entitled to declare any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of default (however
described); provided, however, that no Event of Default will occur under this paragraph (f)
if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within clauses (i) through (iv) above is less than $15,000,000 (or its equivalent
in any other currency or currencies);
(g) (i) An Obligor or a Material Subsidiary (x) is unable or admits inability to pay
its debts as they become due, (y) is declared to be unable to pay its debts under
applicable law, or (z) suspends or threatens to suspend making payments on any of its
debts; (ii) the value of the assets of any Obligor is less than its liabilities (taking
into account contingent and prospective liabilities); (iii) a moratorium is declared in
respect of any indebtedness of any Obligor or Material Subsidiary. If a moratorium occurs,
the ending of the moratorium will not remedy any Event of Default caused by such
moratorium; or (iv) Parent or any Obligor or Material Subsidiary which conducts business in
France is in a state of cessation des paiements, or any member of the Group becomes
insolvent for the purpose of any applicable insolvency law;
(h) (i) Any corporate action, legal proceedings or other procedure or step is taken in
relation to (w) the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganization (by way of voluntary arrangement, scheme of
arrangement or otherwise) of any member of the Group other than a solvent liquidation or
reorganization of any member of the Group which is not an Obligor; (x) an assignment for
the benefit of creditors of any member of the Group; (y) the appointment of a liquidator
(other than in respect of a solvent liquidation of a member of the Group which is not an
Obligor), bankruptcy receiver, administrator, or other similar officer in respect of any
member of the Group or any material part of its assets; or (z) enforcement of any Security
over all or any material portion of the assets of the Group, or any analogous procedure or
step is taken in any jurisdiction (each a “Winding-up Petition”); provided that this clause
(i) shall not apply to (A) any involuntary Winding-up Petition which is dismissed within 60
days after the filing or commencement thereof or an order for relief having been entered
with respect thereto; or (B) any corporate action, legal proceedings, Winding-up Petition
or other procedure or step which is part of a solvent reorganization of any member of the
Group permitted under this Agreement; (ii) Parent or any member of the Group commences
proceedings for conciliation in accordance with articles L.611-3 to L.611-15 of the French
Code de Commerce; or (iii) a judgment for sauvegarde, redressement judiciaire, cession
totale de l’entreprise or liquidation judiciaire is entered in relation to Parent or any
member of the Group under articles L.620-1 to L.644-6 of the French Code de Commerce;
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(i) Any expropriation, attachment, sequestration, distress or execution or any of the
enforcement proceedings provided for in French law no. 91 650 of 9 July 1991, or any
analogous process in any jurisdiction, affects any asset or assets of a Material Subsidiary
and is not discharged within 14 days;
(j) (i) It is or becomes unlawful for an Obligor to perform any of its obligations
under the Finance Documents, any Transaction Security created or expressed to be created or
evidenced by the Security Documents ceases to be effective or any subordination created
under the Intercreditor Agreement is or becomes unlawful; (ii) any obligation or
obligations of any Obligor under any Finance Documents are not (subject to the Legal
Reservations), or cease to be, legal, valid, binding or enforceable and the cessation
individually or cumulatively materially and adversely effects the interests of the Lenders
under the Finance Documents; or (iii) any Finance Document ceases to be in full force and
effect or any Transaction Security ceases to be legal, valid, binding, enforceable or
effective or is alleged by a party to it (other than a Finance Party) to be ineffective;
(k) Any Obligor or Material Subsidiary suspends or ceases to carry on (or threatens to
suspend or cease to carry on) all or a material part of its business except as a result of
a disposal which is a Permitted Disposal or a Permitted Merger;
(l) (i) An Obligor (other than Parent) ceases to be a wholly owned (directly or
indirectly) Subsidiary of Parent; or (ii) an Obligor ceases to own at least the same
percentage of shares in a Material Subsidiary, except, in either case, as a result of a
disposal which is a Permitted Disposal, Permitted Share Issue or a Permitted Merger;
(m) The Auditors qualify the audited annual consolidated financial statements of
Parent;
(n) The authority or ability of any Obligor or Material Subsidiary to conduct its
business is limited or wholly or substantially curtailed by any seizure, expropriation,
nationalization, intervention, restriction or other action by or on behalf of any
governmental, regulatory or other authority or other person in relation to any Obligor or
Material Subsidiary or any of its assets;
(o) An Obligor (or any other relevant party) rescinds, or purports to rescind, or
repudiates, or purports to repudiate, a Finance Document or any of the Transaction Security
or evidences an intention to rescind or repudiate a Finance Document or any Transaction
Security;
(p) Any litigation, arbitration, administrative, governmental, regulatory or other
investigations, proceedings or disputes are commenced (a) in relation to the Transaction
Documents or the transactions contemplated in the Transaction
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Documents or (b) against any member of the Group or its assets which has or is
reasonably likely to have a Material Adverse Effect;
(q) Any member of the Group does not enter into any Security Documents within the
period contemplated in any Finance Document by reason of any failure by any person to
complete any financial assistance or corporate benefit procedures; or
(r) A Change of Control occurs;
then, and in every such event (other than an event with respect to Parent or the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, without mise en demeure or any other judicial or extra
judicial step, and shall if so directed by the Majority Lenders, by notice to the Borrower but
subject to the mandatory provisions of articles L.620 1 to L.628 3 of the French Code de Commerce,
take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Finance Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained herein or in any other
Finance Document to the contrary notwithstanding; and in any event with respect to Parent or the
Borrower described in paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other
Finance 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 Borrower, anything
contained herein or in any other Finance Document to the contrary notwithstanding.
ARTICLE VIII
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the
Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents
to take such actions on its behalf and to exercise such powers as are delegated to such Agent by
the terms of the Finance Documents, together with such actions and powers as are reasonably
incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute and deliver, without the need for any further authority from the
Secured Parties, the Intercreditor Agreement, each other Security Document and any and all other
documents (including releases) with respect to the Transaction Security, the
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Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and
in accordance with the provisions of this Agreement and the Security Documents.
Each bank serving as an Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
No Agent shall have any duties or obligations except those expressly set forth in the Finance
Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby that such Agent is
instructed in writing to exercise by the Majority Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 9.08), and (c)
except as expressly set forth in the Finance Documents, no Agent shall have any duty to disclose,
nor shall it be liable for the failure to disclose, any information relating to the Borrower or any
of the other Subsidiaries that is communicated to or obtained by a bank serving as an Agent or any
of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it
with the consent or at the request of the Majority Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be deemed to have
knowledge of any Default unless and until written notice thereof is given to such Agent by the
Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with any
Finance Document, (ii) the contents of any certificate, report or other document delivered
thereunder or in connection therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Finance Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Finance Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Finance Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may
also rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
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Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Facilities as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the Majority Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Bank, in
consultation with the Borrower, appoint a successor Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Agent hereunder by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of
this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.
Each Lender acknowledges that it has, independently and without reliance upon the Agents or
any other Lender 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 Agents or any other Lender 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 Finance
Document, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
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 fax, as follows:
(a) if to the Borrower or Parent, to it at Tour Montparnasse — 00 xxxxxx xx Xxxxx — 75755
Xxxxx Xxxxx 00, Xxxxxx, Attention of Xx. Xxxxxxxx-Xxxx Xxxxxxx (Fax
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No. x00 (0)0 00 00 00 31), with a copy to 00000 Xxxx Xxxx Xxxxx, Xxxxxxx, XX 00000, Attention
of XxXxxxx Xxxxx (Fax No. (000) 000-0000);
(b) if to the Administrative Agent, the Collateral Agent, the Swingline Lender or the
Issuing Bank, to Credit Suisse AG, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Agency
Manager, Attention: Xxxx Portrait (Fax No. (000) 000-0000, E-mail:
xxxxxx.xxxxxxx@xxxxxx-xxxxxx.xxx);
(c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in
the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.
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 fax 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. As agreed to
among Parent, the Borrower, the Administrative Agent, the Collateral Agent, the Swingline Lender,
the Issuing Bank and the applicable Lenders from time to time (or, in the case of any notice
delivered by the Borrower to the Administrative Agent pursuant to any provision of Article II, as
agreed to by the Borrower and the Administrative Agent specifically with respect to such notice),
notices and other communications (other than any notice delivered pursuant to Section 5.06) may
also be delivered by e-mail to the e-mail address of a representative of the applicable person
provided from time to time by such person.
SECTION 9.02.
Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower or Parent herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any other Finance
Document shall be considered to have been relied upon by the Lenders and the Issuing Bank and shall
survive the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing
Bank, regardless of any investigation made by the Lenders or the Issuing Bank or on their behalf,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any Fee or any other amount payable under this Agreement or any other Finance 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 Sections 2.14, 2.16, 2.20 and 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 repayment of any of the Loans, 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 Finance Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or
the Issuing Bank.
SECTION 9.03.
Binding Effect. This Agreement shall become effective as provided in the
Amendment Agreement.
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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; and all covenants, promises and agreements by or on behalf of the Borrower,
Parent, the Administrative Agent, the Collateral Agent, the Issuing Bank 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 the
Loans at the time owing to it), with notice to the Borrower and the prior written consent of the
Administrative Agent (not to be unreasonably withheld or delayed); provided, however, that (i) in
the case of an assignment of a Revolving Credit Commitment, each of the Borrower, the Issuing Bank
and the Swingline Lender must also give its prior written consent to such assignment (which consent
shall not be unreasonably withheld or delayed) (provided, that the consent of the Borrower shall
not be required to any such assignment made (x) to another Lender or an Affiliate of a Lender, (y)
after the occurrence and during the continuance of any Event of Default or (z) during the primary
syndication of the Facilities pursuant to a syndication strategy agreed upon by the Administrative
Agent and Parent), (ii) the amount of the Commitment or Loans 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 be in an integral multiple of, and not
less than, $1,000,000 in the case of Term Loan Commitments or Term Loans or $2,500,000 in the case
of Revolving Credit Commitments or Revolving Loans (or, if less, the entire remaining amount of
such Lender’s Commitment or Loans of the relevant Class), provided that, in each case, such minimum
amount shall be aggregated for two or more simultaneous assignments to or by two or more Related
Funds, (iii) the parties to each such assignment shall (x) (A) electronically execute and deliver
to the Administrative Agent an Assignment and Acceptance via an electronic settlement system
acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (B) if
previously agreed with the Administrative Agent, manually execute and deliver to the Administrative
Agent an Assignment and Acceptance, and (y) pay to the Administrative Agent a processing and
recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the
Administrative Agent), and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and all applicable tax forms. 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 Sections
2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
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(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 Term Loan Commitment and Revolving Credit Commitment, and the outstanding balances of its
Term Loans and Revolving Loans, 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 Finance Document or any other instrument or
document furnished pursuant hereto, or the financial condition of Parent or any Subsidiary or the
performance or observance by Parent or any Subsidiary of any of its obligations under this
Agreement, any other Finance 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 3.16
or delivered pursuant to Section 5.01 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, the Collateral Agent, such assigning Lender or any other Lender 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 and the Collateral 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 and the
Collateral Agent, respectively, 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 Borrower, shall
maintain at one of its offices in The City of New York 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, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive and the
Borrower, the Administrative Agent, the Issuing Bank, the Collateral Agent 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 Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(e) Upon its receipt of, and consent to, 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 the written consent of the
Administrative Agent and, if required, the Borrower, the Swingline Lender and the Issuing Bank to
such assignment and any applicable tax forms (including, in respect of any Foreign Lender, a
properly completed IRS Form W-8 in accordance with Section 2.20(e) of this Agreement), the
Administrative Agent shall promptly (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register. No assignment shall be effective unless it has been
recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Swingline Lender, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or other persons in all
or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); 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 persons shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with respect to any
particular participant, to no greater extent than the Lender that sold the participation to such
participant) and (iv) the Borrower, the Administrative Agent, the Issuing Bank 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 Borrower relating to the Loans or 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 to such participating bank or person hereunder
or the amount of principal of or the rate at which interest is payable on the Loans in which such
participating bank or person has an interest, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans in which such participating bank or person has
an interest, increasing or extending the Commitments in which such participating bank or person has
an interest or releasing any Guarantor (other than in connection with the sale, transfer or other
disposal of such Guarantor in a transaction permitted by Section 6.08) or all or substantially all
of the Collateral).
(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 Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower 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
9.16.
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(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 or in support of obligations owed by such Lender to
any party (including, without limitation, any Federal Reserve Bank); 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) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC.
(j) Neither Parent nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the Issuing Bank and each
Lender, and any attempted assignment without such consent shall be null and void.
(k) In the event that any Revolving Credit Lender shall become a Defaulting Lender or S&P,
Xxxxx’x and Xxxxxxxx’x BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that
are insurance companies (or Best’s Insurance Reports, if such insurance company is not rated by
Insurance Watch Ratings Service)) shall, after the date that any Lender becomes a Revolving Credit
Lender, downgrade the long-term certificate deposit ratings of such Lender, and the resulting
ratings shall be below BBB-, Baa3 and C (or BB, in the case of a Lender that is an insurance
company
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(or B, in the case of an insurance company not rated by InsuranceWatch Ratings Service)) (or,
with respect to any Revolving Credit Lender that is not rated by any such ratings service or
provider, the Issuing Bank or the Swingline Lender shall have reasonably determined that there has
occurred a material adverse change in the financial condition of any such Lender, or a material
impairment of the ability of any such Lender to perform its obligations hereunder, as compared to
such condition or ability as of the date that any such Lender became a Revolving Credit Lender)
then the Issuing Bank shall have the right, but not the obligation, at its own expense, upon notice
to such Lender and the Administrative Agent, to replace such Lender with an assignee (in accordance
with and subject to the restrictions contained in paragraph (b) above), and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations in respect of its
Revolving Credit Commitment to such assignee; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any Governmental Authority and (ii) the
Issuing Bank or such assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued for such Lender’s
account or owed to it hereunder.
SECTION 9.05.
Expenses; Indemnity. (a) The Borrower and Parent agree, jointly and
severally, to pay all out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Swingline Lender in connection with the syndication of the
Facilities and the preparation and administration of this Agreement and the other Finance 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, the Collateral Agent or any Lender in connection with the enforcement
or protection of its rights in connection with this Agreement and the other Finance Documents or in
connection with the Loans made or Letters of Credit issued hereunder, including the fees, charges
and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent and the
Collateral Agent, and, in connection with any such enforcement or protection, the fees, charges and
disbursements of any other outside counsel for the Administrative Agent, the Collateral Agent or
any Lender.
(b) The Borrower and Parent agree, jointly and severally, to indemnify the Administrative
Agent, the Collateral Agent, each Lender, the Issuing Bank and each Related Party of any of the
foregoing persons (each such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
out-of-pocket expenses, including reasonable outside 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 Finance Document or any
agreement or instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and the other
transactions contemplated thereby (including the syndication of the Facilities), (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim, litigation,
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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 any
property currently or formerly owned or operated by Parent or any of the Subsidiaries, or any
Environmental Liability related in any way to Parent or the Subsidiaries; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted primarily from the gross negligence or wilful
misconduct of, or the material breach of this Agreement by, such Indemnitee or (y) arise out of any
claim, litigation, investigation or proceeding brought by such Indemnitee against another
Indemnitee (other than any such claim, litigation, investigation or proceeding brought by or
against the Administrative Agent, acting in its capacity as Administrative Agent) that does not
involve any act or omission of the Borrower or any member of the Group.
(c) To the extent that the Borrower and Parent fail to pay any amount required to be paid by
them to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case
may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share”
shall be determined based upon its share of the sum of the Aggregate Revolving Credit Exposure,
outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Parent nor the Borrower shall assert,
and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) 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 repayment of any of the Loans, 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 Finance Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the 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
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at any time owing by such Lender to or for the credit or the account of the Borrower against
any of and all the obligations of the Borrower now or hereafter existing under this Agreement and
other Finance Documents held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or such other Finance 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 FINANCE DOCUMENTS (OTHER THAN
LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER FINANCE DOCUMENTS) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 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 UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS
ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08.
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent, any Lender or the Issuing Bank in exercising any power or right hereunder or
under any other Finance 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 Collateral Agent, the Issuing
Bank and the Lenders hereunder and under the other Finance 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 Finance Document or consent to any departure by the Borrower or any
other Obligor 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 Borrower in any case
shall entitle the Borrower 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 Borrower, Parent and
the Majority Lenders; provided, however, that no such agreement shall (i) decrease the principal
amount of, or extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or 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 Loan or L/C
Disbursement, without the prior written consent of each Lender directly adversely affected thereby,
(ii) increase or extend the Commitment or decrease or extend the date for payment of any Fees of
any
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Lender without the prior written consent of such Lender, (iii) amend or modify the pro rata
requirements of Section 2.17, the provisions of Section 9.04(j) or the provisions of this Section
or release any Guarantor (other than in connection with the sale, transfer or other disposal of
such Guarantor in a transaction permitted by Section 6.08) or all or substantially all of the
Collateral, without the prior written consent of each Lender, (iv) change the provisions of any
Finance Document in a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of
any other Class without the prior written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the
protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written
consent of such SPC or (vi) reduce the percentage contained in the definition of the term “Majority
Lenders” without the prior written consent of each Lender (it being understood that with the
consent of the Majority Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Majority Lenders on substantially the same basis as the Term
Loan Commitments and Revolving Credit Commitments on the date hereof); provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under any other
Finance Document without the prior written consent of the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, as the case may be.
SECTION 9.09.
Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan or participation in any L/C Disbursement,
together with all fees, charges and other amounts which are treated as interest on such Loan or
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 Loan or participation in accordance with applicable
law, the rate of interest payable in respect of such Loan or 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 Loans or
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 Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.10.
Entire Agreement. This Agreement, the Fee Letter and the other Finance
Documents constitute the entire contract between the parties relative to the subject matter hereof.
Any other previous agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Finance Documents. Nothing in this Agreement or in the
other Finance Documents, expressed or implied, is intended to confer upon any person (other than
the parties hereto and thereto, their respective successors and assigns permitted hereunder
(including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
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Collateral Agent, the Issuing Bank and the Lenders) any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Finance 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 FINANCE 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 FINANCE
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 Finance 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. [Reserved].
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) Each of Parent and the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, 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 New York 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.
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Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or the other Finance Documents against Parent, the Borrower or their respective
properties in the courts of any jurisdiction.
(b) Each of Parent and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it 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 in any court referred to in paragraph (a) above. 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; provided that that Parent hereby appoints the Borrower as its
agent for service of process. 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.
Confidentiality. Each of the Administrative Agent, the Collateral Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’ officers,
directors, trustees, employees and agents, including accountants, legal counsel and other advisors
(it being understood that the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority or quasi-regulatory authority (such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process,
provided that, unless specifically
prohibited by applicable law, regulation or court order, the disclosing party shall (to the extent
reasonably practicable) notify the Borrower of any request by any Government Authority or
representative thereof (other than any such request in connection with any examination of the
financial condition of such Lender by such Government Authority) for disclosure of any Information
prior to disclosure of such Information, (d) in connection with the exercise of any remedies
hereunder or under the other Finance Documents or any suit, action or proceeding relating to the
enforcement of its rights hereunder or thereunder, (e) subject to an agreement containing
provisions substantially the same as those of this Section 9.16, to (i) any actual or prospective
assignee of or participant in any of its rights or obligations under this Agreement and the other
Finance Documents or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower or any Subsidiary or any of their respective
obligations, (f) with the consent of the Borrower or (g) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 9.16. For the purposes of
this Section, “
Information” shall mean all information received from the Borrower or Parent and
related to the Borrower or Parent or their business, other than any such information that was
available to the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure by the
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Borrower or Parent; provided that, in the case of Information received from the Borrower or
Parent after the Closing Date, such information is clearly identified at the time of delivery as
confidential. Any person required to maintain the confidentiality of Information as provided in
this Section 9.16 shall be considered to have complied with its obligation to do so if such person
has exercised the same degree of care to maintain the confidentiality of such Information as such
person would accord its own confidential information.
SECTION 9.17.
USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA PATRIOT Act, it is required to obtain, verify and record information that identifies Parent and
the Borrower, which information includes the name and address of Parent and the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify
Parent and the Borrower in accordance with the USA PATRIOT Act.
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