364-DAY CREDIT AGREEMENT dated as of March [12], 2010 among STANLEY BLACK & DECKER, INC., as Initial Borrower THE BLACK & DECKER CORPORATION, as Subsidiary Guarantor and THE INITIAL LENDERS NAMED HEREIN, as Initial Lenders and CITIBANK, N.A., as...
Exhibit
10.4
$700,000,000
dated as
of March [12], 2010
among
XXXXXXX
XXXXX & XXXXXX, INC.,
as
Initial Borrower
THE
BLACK & XXXXXX CORPORATION,
as
Subsidiary Guarantor
and
THE
INITIAL LENDERS NAMED HEREIN,
as
Initial Lenders
and
CITIBANK,
N.A.,
as
Administrative Agent
CITIGROUP
GLOBAL MARKETS INC. and
BANC
OF AMERICA SECURITIES LLC,
as
Lead Arrangers and Book Runners
BANK
OF AMERICA, N.A.,
as
Syndication Agent
Page
(i)
(ii)
364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT (as
amended, supplemented or otherwise modified from time to time, the “Agreement”) is made
as of March [12], 2010 between XXXXXXX XXXXX & XXXXXX, INC. (formerly known
as The Xxxxxxx Works), a Connecticut corporation (the “Company”), THE BLACK
& XXXXXX CORPORATION, a Maryland corporation (the “Subsidiary
Guarantor”), the banks, financial institutions and other institutional
lenders (the “Initial
Lenders”) listed on the signature pages hereof, and CITIBANK, N.A.
(“Citibank”),
as administrative agent (in such capacity, the “Administrative
Agent”) for the Lenders (as hereinafter defined).
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01 Certain
Defined Terms. As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
“Acquiring Person”
means any person (other than the ESOP) who is or becomes the beneficial owner,
directly or indirectly, of 10% or more of the Company’s outstanding common
stock.
“Administrative Agent’s
Account” means, with respect to any Currency, the account of the
Administrative Agent maintained by the Administrative Agent for such Currency
and most recently designated by it by notice to the Lenders and the
Company.
“Advance” means an
advance by a Lender to a Borrower as part of a Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance, each of which shall be a “Type” of
Advance. For the purposes of determining the unutilized amount of
each Lender’s Commitment at any time, the amount of each Advance of such Lender
that is outstanding in an Alternate Currency shall be deemed to be the Dollar
Equivalent of the amount of such Advance.
“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Agent’s Group” has
the meaning provided in Section 7.02(b).
“Alternate Currencies”
means Euros and Pounds Sterling.
“Applicable Base Rate
Margin” means, on any day, a rate per annum equal to the higher of (a)
the Applicable Eurocurrency Margin for such day minus 1.00% and
(b)
0.00%.
“Applicable Eurocurrency
Margin” means, on any date for each Eurocurrency Rate Advance, the rate
per annum equal to the arithmetical mean of the one-year credit default swap
mid-rate spreads of the Company (the “Credit Default Swap
Spread”) (as provided by Markit Group Limited (or any successor thereto)
to the Administrative Agent) for each Business Day during the period of 30 days
(the “Calculation
Period”) immediately preceding but not including the day which falls two
Business Days prior to the first day of the applicable Interest Period for such
Advance; provided, that the Applicable Eurocurrency Margin shall in no event be
less than a rate per annum equal to the Floor or greater than a rate per annum
equal to the Cap; provided, further, that if the Applicable Eurocurrency Margin
is unavailable on any Business Day during the Calculation Period, the
arithmetical mean shall be calculated based on the actual number of Business
Days within the Calculation Period for which such rate is
available.
If at any time the Applicable
Eurocurrency Margin cannot be determined or is otherwise unavailable, the
Company and the Required Lenders shall negotiate in good faith (for a period of
up to thirty days after the Applicable Eurocurrency Margin first becomes
unavailable (such thirty-day period, the “Negotiation Period”))
to agree on an alternative method for establishing the Applicable Eurocurrency
Margin. The Applicable Eurocurrency Margin at any date of
determination thereof which falls during the Negotiation Period shall be based
upon the then most recently available quote provided by Markit Group Limited (or
any successor thereto) of the Credit Default Swap Spread; provided that the
Applicable Eurocurrency Margin shall in no event be less than a rate per annum
equal to the Floor or greater than a rate per annum equal to the
Cap. If no such alternative method is agreed upon during the
Negotiation Period, the Applicable Eurocurrency Margin at any date of
determination subsequent to the end of the Negotiation Period shall be a rate
per annum equal to the Cap.
Notwithstanding anything else to the
contrary in this definition of “Applicable Eurocurrency Margin”, the Applicable
Eurocurrency Margin shall be the rate per annum equal to the Cap from and after
the Term Loan Conversion Date.
“Applicable Facility Fee
Rate” means, on any date, a rate per annum equal to
(i) 0.100% if on such date the
Company’s outstanding Long-Term Indebtedness is rated A+ or higher by Standard
& Poor’s, A1 or higher by Moody’s, or A+ or higher by Fitch,
(ii) 0.150% if on such date clause (i)
is inapplicable and the Company’s outstanding Long-Term Indebtedness is rated A
or higher by Standard & Poor’s, A2 or higher by Moody’s, or A or higher by
Fitch,
(iii) 0.200% if on such date clauses
(i) and (ii) are inapplicable and the Company’s outstanding Long-Term
Indebtedness is rated A- or higher by Standard & Poor’s, A3 or higher by
Moody’s, or A- or higher by Fitch,
(iv) 0.250% if on such date clauses
(i), (ii) and (iii) are inapplicable and the Company’s outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard & Poor’s, Baa1 or higher by
Moody’s, or BBB+ or higher by Fitch, and
(v) 0.300% if on such date clauses (i),
(ii), (iii) and (iv) are inapplicable (including if such Long-Term Indebtedness
is no longer rated by any agency);
provided that if the respective
levels of the Company’s outstanding Long-Term Indebtedness credit ratings
differ, the “Applicable Facility Fee Rate” will be determined based on, (a) if
two of the ratings are at the same level and the other rating is higher or lower
than those same ratings, the level corresponding to the two same ratings shall
apply and (b) if each of the three ratings falls within different levels, then
the level corresponding to the rating that is in between the highest and the
lowest ratings shall apply.
“Applicable Lending
Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency
Lending Office in the case of a Eurocurrency Rate Advance.
“Applicable Restructuring
Charge” means
(a) for
any Restructuring Period falling in the Company’s fiscal year 2009, the
restructuring charges reported in the Company’s SEC Filings for such fiscal
quarter; provided that the sum of the Applicable Restructuring Charges for all
of the Restructuring Periods in the Company’s fiscal year 2009 will not exceed
$50,000,000 in the aggregate; and
(b) for any
Restructuring Period falling in the Company’s fiscal year 2010, 2011, 2012, or
2013, amounts relating to one or more of the following: (i) restructuring
charges, including, without limitation, the effect of reconstruction,
recommissioning or reconfiguration of fixed assets for alternative uses, store
closure, office closure, plant closure, facility consolidations, downsizing,
shutdown costs (including future lease commitments and contract termination
costs with respect thereto), curtailments or modifications to pension and
post-retirement employee benefit plans, retention, severance, system
establishment costs, and acquisition integration costs; (ii) change of control
payments and transaction fees; (iii) performance-based bonus payments to Xxxxx
Xxxxxxxxx; (iv) all expenses and charges related to any stock based
compensation; (v) non-cash inventory step-up charges; and (vi) liabilities under
Section 280G of the Internal Revenue Code and gross-ups related thereto;
provided that the sum of the Applicable Restructuring Charges for all of the
Restructuring Periods in the Company’s fiscal years 2010, 2011, 2012, and 2013
will not exceed $1,200,000,000 in the aggregate, of which not more than
$900,000,000 is cash.
“Approved Electronic
Communications” means each Communication that any Loan Party is obligated
to, or otherwise chooses to, provide to the Administrative Agent pursuant to any
Loan Document or the transactions contemplated therein, including any financial
statement, financial and other report, notice, request, certificate and other
information material; provided, however,
that, solely with respect to delivery of any such Communication by any Loan
Party to the Administrative Agent and without limiting or otherwise affecting
either the Administrative Agent’s right to effect delivery of such Communication
by posting such Communication to the Approved Electronic Platform or the
protections afforded hereby to the Administrative Agent in connection with any
such posting, “Approved Electronic Communication” shall exclude (i) any
notice of borrowing, letter of credit request, swing loan request, notice of
conversion or continuation, and any other notice, demand, communication,
information, document and other material relating to a request for a new, or a
conversion or continuation of an existing, Borrowing, (ii) any notice
pursuant to Section 2.07(a) and Section 2.07(b) and any other notice relating to
the payment of any principal or other amount due under any Loan Document prior
to the scheduled date therefor, (iii) all notices of any Default or Event
of Default and (iv) any notice, demand, communication, information,
document and other material required to be delivered to satisfy any of the
conditions set forth in Article 3 or any other condition to any Borrowing or
other extension of credit hereunder or any condition precedent to the
effectiveness of this Agreement.
“Approved Electronic
Platform” has the meaning provided in Section 8.02(b).
“Assignment and
Acceptance” means an assignment and acceptance accepted by the
Administrative Agent in substantially the form of Exhibit D hereto.
“Attributable Debt”
means, in respect of any lease transaction described in Section 5.02(c), as of
the date of determination, the lesser of (i) the sale price of the property so
leased multiplied by a fraction the numerator of which is the remaining portion
of the base term of the lease included in such transaction and the denominator
of which is the base term of such lease, and (ii) the total obligation
(discounted to present value at the implicit interest factor, determined in
accordance with generally accepted financial practice, included in the rental
payments or, if such interest factor cannot readily be determined, at a rate of
interest of 10% per annum, compounded semi-annually) of the lessee for rental
payments (other than amounts required to be paid on account of property taxes as
well as maintenance, repairs, insurance, water rates and other items which do
not constitute payments for property rights) during the remaining portion of the
base term of the lease included in such transaction.
“Base Rate” means a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest
announced publicly by the Reference Bank in New York, New York, from time to
time, as its base rate;
(b) 1/2 of one percent per
annum above the Federal Funds Rate; and
(c) the rate equal to the
Eurocurrency Rate for a Dollar denominated Advance having an Interest Period of
one month determined for each day that a Base Rate Loan is outstanding (and in
respect of any day that is not a Banking Day, such rate as in effect on the
immediately preceding Banking Day) plus 1.00% per
annum.
“Base Rate Advance”
means an Advance denominated in Dollars that bears interest as provided in
Section 2.05(a).
“Borrowers” means,
collectively, the Company and each Designated Borrower.
“Borrowing” means a
borrowing consisting of simultaneous Advances of the same Type made by each of
the Lenders to a Borrower pursuant to Section 2.01.
“Business Day” means a
day of the year (a) on which banks are not required or authorized to close in
New York City, (b) if the applicable Business Day relates to any
Eurocurrency Rate Advances, on which dealings in Dollars are carried on in the
London interbank market, (c) if such day relates to a Borrowing of, or a
payment or prepayment of principal of or interest on or an Interest Period for
an Advance denominated in Pounds Sterling, or a notice with respect thereto,
that is also a day on which commercial banks and foreign exchange markets settle
payments in London, and (d) if such day relates to a Borrowing of, or a
payment or prepayment of principal of or interest on or an Interest Period for
an Advance denominated in Euros, or a notice with respect thereto, that is also
a Target Operating Day.
“Cap” means, on any
date, a rate per annum equal to
(i) 2.500% if on such date the
Company’s outstanding Long-Term Indebtedness is BBB+ or higher by Standard &
Poor’s, Baa1 or higher by Moody’s, or BBB+ or higher by Fitch, and
(ii) 3.000% if on such date clause (i)
is inapplicable (including if such Long-Term Indebtedness is no longer rated by
any agency);
provided that if the
respective levels of the Company’s outstanding Long-Term Indebtedness credit
ratings differ, the “Cap” will be determined based on, (a) if two of the ratings
are at the same level and the other rating is higher or lower than those same
ratings, the level corresponding to the two same ratings shall apply and (b) if
each of the three ratings falls within different levels, then the level
corresponding to the rating that is in between the highest and the lowest
ratings shall apply.
“Capital Lease” means
any lease of property, real or personal, the obligations under which are
capitalized on the consolidated balance sheet of the Company and its
Subsidiaries.
“Change of Control”
means, with respect to the Company, the occurrence of any event, act or
condition which results in either (i) any Person other than the ESOP becoming
the beneficial owner, directly or indirectly, of 30% or more of the outstanding
common stock of the Company or (ii) individuals who constitute the Continuing
Directors ceasing for any reason to constitute at least the majority of the
Board of Directors of the Company.
“Citibank” has the
meaning specified in the first paragraph of this Agreement.
“Commitment” means,
with respect to any Lender, the amount specified opposite such Lender’s name on
Schedule I hereto or, if such Lender has entered into any Assignment and
Acceptance, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d), as such amount may be
reduced pursuant to Section 2.01(b). The aggregate amount of the
Commitments on the date hereof is $700,000,000.
“Communications” means
each notice, demand, communication, information, document and other material
provided for hereunder or under any other Loan Document or otherwise transmitted
between the parties hereto relating to this Agreement, the other Loan Documents,
any Loan Party or its Affiliates, or the transactions contemplated by this
Agreement or the other Loan Documents including, without limitation, all
Approved Electronic Communications.
“Consolidated Net
Worth” means the excess over current liabilities of all assets properly
appearing on a consolidated balance sheet of the Company and its Subsidiaries
after deducting the minority interests of others in Subsidiaries.
“Consolidated
Subsidiary” means at any date any Subsidiary or other entity the
financial statements of which would, under GAAP, be consolidated with those of
the Company in its consolidated financial statements as of such
date.
“Contingent
Obligation” as to any Person means any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations (“primary obligations”)
of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of such primary obligation
against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount
of any Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good
faith.
“Continuing Director”
means any member of the Board of Directors of the Company who is not affiliated
with an Acquiring Person and who is a member of the Board of Directors of the
Company immediately prior to the time that the Acquiring Person became an
Acquiring Person and any successor to a Continuing Director who is not
affiliated with the Acquiring Person and is recommended to succeed a Continuing
Director by a majority of Continuing Directors who are then members of the Board
of Directors of the Company.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled”
have meanings correlative thereto.
“Currency” means
either Dollars or an Alternate Currency.
“Default” means an
event which would constitute an Event of Default but for the giving of notice,
the lapse of time or both.
“Designated Borrowers”
means any Subsidiary of the Company as to which a Designation Letter has been
delivered to the Administrative Agent in accordance with and together with the
other documents required by Section 2.14, and no Termination Letter has been
delivered to the Administrative Agent thereunder.
“Designation Letter”
has the meaning provided in Section 2.l4.
“Dollar Equivalent”
means, with respect to any amount denominated in an Alternate Currency on any
date, the amount of Dollars that would be required to purchase such amount of
such Alternate Currency at or about 11:00 A.M. (Local Time) on such date, for
delivery two Business Days later, as determined by the Administrative Agent on
the basis of the spot selling rate for the offering of such Alternate Currency
for Dollars in the London foreign exchange market, determinations thereof made
in good faith by the Administrative Agent to be conclusive and binding on the
parties in the absence of manifest error.
“Dollars” and “$” mean lawful money
of the United States of America.
“Domestic Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to time specify
in writing to the Company and the Administrative Agent.
“EBITDA” means, for any period, the sum
(without duplication) for the Company and its Consolidated Subsidiaries on a
consolidated basis of the following: (a) net income for such period plus (b) to
the extent deducted in determining net income for such period, the sum of (i)
depreciation and amortization for such period, (ii) Interest Expense for such
period and (iii) taxes for such period. Notwithstanding the
foregoing, (1) in calculating EBITDA for any period that includes one or more
Restructuring Periods, EBITDA shall be increased by an amount equal to the
Applicable Restructuring Charges for any such Restructuring Periods, (2) in
calculating EBITDA for any period, any impairment charges or asset write-offs,
in each case pursuant to Financial Accounting Standards Board’s Staff Position
Accounting Principles Board Opinion No. 144 (“Accounting for the Impairment or
Disposal of Long-Lived Assets (Issued 8/01)”), shall be excluded, (3) in
calculating EBITDA for any period, non-cash charges arising from purchase
accounting adjustments (including the effects of such adjustments pushed down to
such Person and its Subsidiaries) in component amounts required or permitted by
GAAP, resulting from the write-up of assets or application of purchase
accounting in relation to any consummated acquisition or the amortization,
depreciation, or write-off of any amounts thereof, net of taxes, shall be
excluded, and (4) in calculating EBITDA for any period, charges associated with
stock-based compensation shall be excluded. For the purpose of
calculating EBITDA for any period following the acquisition of The Black &
Xxxxxx Corporation, EBITDA for such period shall be calculated after giving pro
forma effect to such acquisition as if such acquisition occurred on the first
day of such period.
“Effective Date” has
the meaning provided in Section 3.01.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
or any successors thereto, and the regulations promulgated and the rulings found
thereunder.
“ERISA Controlled
Group” means a group consisting of any ERISA Person and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control with such Person that, together with such
Person, are treated as a single employer under regulations promulgated under
ERISA.
“ERISA Person” has the
meaning provided in Section 3(9) of ERISA for the term “person.”
“ERISA Plan” means (i)
any Plan that (x) is not a Multiemployer Plan and (y) has Unfunded Benefit
Liabilities in excess of $20,000,000 and (ii) any Plan that is a Multiemployer
Plan.
“ESOP” means Xxxxxxx
Account Value Plan or any successor plan.
“Euro” has the meaning
provided in Section 2.15.
“Eurocurrency
Liabilities” has the meaning provided in Regulation D (or any successor
regulation) of the Federal Reserve Board, as in effect from time to
time.
“Eurocurrency Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Eurocurrency Lending Office” opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office of such Lender is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify in writing to the Company and the Administrative
Agent.
“Eurocurrency Rate”
means, for any Interest Period:
(a) for each Eurocurrency
Rate Advance denominated in Dollars comprising part of the same Borrowing, an
interest rate per annum equal to the offered rate for deposits in such Currency
as quoted on the relevant Screen Page at 11:00 A.M. (London time) two London
Banking Days before the first day of such Interest Period in an amount
substantially equal to the Reference Bank’s Eurocurrency Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period;
(b) for each Eurocurrency
Rate Advance denominated in Pounds Sterling comprising part of the same
Borrowing, (i) an interest rate per annum equal to the offered rate for deposits
in such Currency as quoted on the relevant Screen Page at 11:00 A.M. (London
time) on the first day of such Interest Period, for a period equal to such
Interest Period plus (ii) the MCR
Cost, if any; or
(c) for each Eurocurrency
Rate Advance denominated in Euros comprising part of the same Borrowing, (i) an
interest rate per annum equal to the offered rate for deposits in such Currency
as quoted on the relevant Screen Page at 11:00 A.M. (Brussels time) two TARGET
Days before the first day of such Interest Period, for a period equal to such
Interest Period plus (ii) the MCR
Cost, if any.
“Eurocurrency Rate
Advance” means an Advance that bears interest as provided in Section
2.05(b).
“Eurocurrency Rate Reserve
Percentage” for any Lender for any Eurocurrency Rate Advances owing to
such Lender means the reserve percentage applicable two Business Days before the
first day of the applicable Interest Period under regulations issued from time
to time by the Federal Reserve Board for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to the applicable Interest Period.
“Events of Default”
has the meaning provided in Section 6.01.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended form time to time, and the rules
and regulations promulgated thereunder from time to time in effect.
“Excluded
Representation” means the representation and warranty set forth in
Section 4.01(g).
“Federal Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy”, as
amended from time to time, or any successor thereto.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve Board arranged by Federal
fund brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Reference Bank from three Federal funds brokers of recognized standing selected
by the Reference Bank.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve System as
constituted from time to time.
“Fitch” means Fitch
Ratings Ltd. and any successor or successors thereto.
“Floor” means, on any
date, a rate per annum equal to
(i) 0.750% if on such date the
Company’s outstanding Long-Term Indebtedness is rated A- or higher by Standard
& Poor’s, A3 or higher by Moody’s, or A- or higher by Fitch,
(ii) 1.000% if on such date clause (i)
is inapplicable and the Company’s outstanding Long-Term Indebtedness is rated
BBB+ or higher by Standard & Poor’s, Baa1 or higher by Moody’s, or BBB+ or
higher by Fitch, and
(iii) 1.500% if on such date clauses
(i) and (ii) are inapplicable (including if such Long-Term Indebtedness is no
longer rated by any agency);
provided that if the respective
levels of the Company’s outstanding Long-Term Indebtedness credit ratings
differ, the “Floor” will be determined based on, (a) if two of the ratings are
at the same level and the other rating is higher or lower than those same
ratings, the level corresponding to the two same ratings shall apply and (b) if
each of the three ratings falls within different levels, then the level
corresponding to the rating that is in between the highest and the lowest
ratings shall apply.
“Foreign Currency
Equivalent” means, with respect to any amount in Dollars, the amount of
an Alternate Currency that could be purchased with such amount of Dollars using
the reciprocal of the foreign exchange rate specified in the definition of
“Dollar Equivalent”, as determined by the Administrative Agent, such
determinations to be conclusive and binding on the parties in the absence of
manifest error.
“Foreign Currency
Sublimit” means the aggregate principal amount of Advances denominated in
Alternate Currencies permitted to be outstanding at any one time. The
Foreign Currency Sublimit on the date hereof is $250,000,000.
“GAAP” means United
States generally accepted accounting principles as in effect from time to
time.
“Guarantors” means,
collectively, the Company and the Subsidiary Guarantor.
“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option contracts
and other similar agreements.
“Indebtedness” of any
Person means, without duplication, (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of business of such Person),
(ii) all indebtedness of such Person evidenced by a note, bond, debenture or
similar instrument, (iii) the principal component of all Capital Lease
obligations of such Person, (iv) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all unreimbursed
amounts drawn thereunder, (v) all indebtedness of any other Person secured by
any Lien on any property owned by such Person, whether or not such indebtedness
has been assumed, (vi) all Contingent Obligations of such Person, and (vii) all
indebtedness of such Person in respect of Hedge Agreements.
“Information” has the
meaning provided in Section 8.02(d).
“Information
Memorandum” means the document in the form approved by the Company
concerning the Loan Parties and their Subsidiaries which, at the Company’s
request and on its behalf, was prepared in relation to this transaction and
distributed by the Lead Arrangers to selected financial institutions before the
date of this Agreement.
“Initial Lenders” has
the meaning provided in the first paragraph of this Agreement.
“Interest Coverage
Ratio” means, for any period of four consecutive fiscal quarters, the
ratio of (a) EBITDA for such period to (b) Interest Expense for such
period.
“Interest Expense” means, for any
period, the sum (determined without duplication) of the aggregate amount of
interest reported in respect of such period on the Indebtedness of the Company
and its Consolidated Subsidiaries on a consolidated basis, including, without
limitation, the interest portion of payments under Capital Lease obligations and
any capitalized interest but excluding imputed (non-cash) interest expense in
respect of convertible bonds issued by the Company or any of its Consolidated
Subsidiaries as calculated in accordance with the Financial Accounting Standards
Board’s Staff Position Accounting Principles Board Opinion No. 14-1 (“Accounting
for Convertible Debt Instruments That May be Settled in Cash upon Conversion
(Including Partial Cash Settlement)”), minus (i) interest income of the
Company and its Consolidated Subsidiaries on a consolidated basis reported in
respect of such period, (ii) interest on deferred compensation reported in
respect of such period, and (iii) any income/expense in respect of such period
associated with spot-to-forward differences or points on foreign currency trades
that are included in interest income/expense as a result of Statement of
Financial Accounting Standards No. 133, as amended and
interpreted. For the purpose of calculating Interest Expense for any
period following the acquisition of The Black & Xxxxxx Corporation, Interest
Expense for such period shall be calculated after giving pro forma effect to
such acquisition as if such acquisition occurred on the first day of such
period.
“Interest Period”
means, for each Eurocurrency Rate Advance comprising part of the same Borrowing,
the period commencing on the date of such Advance or the date of the
continuation of such Eurocurrency Rate Advance or the date of the conversion of
any Base Rate Advance into such Eurocurrency Rate Advance and ending on the last
day of the period selected by a Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two,
three or six months as a Borrower may select in the Notice of Borrowing or
Notice of Conversion or Continuation for such Advance, as the case may be; provided
that:
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(i) a
Borrower may not select any Interest Period which ends after the
Termination Date or, if the Advances have been converted to a term loan
pursuant to Section 2.07(a) prior to such selection, that ends after the
Maturity Date;
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(ii) whenever
the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided that
if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business
Day;
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(iii) any
Interest Period which begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to
clause (iv) below, end on the last Business Day of a calendar
month;
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(iv) (A)
any Interest Period which would otherwise end after the Termination Date
shall end on the Termination Date or (B) if the Advances have been
converted to a term loan pursuant to Section 2.07(a) prior to such
selection, any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity
Date;
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(v) if,
upon the expiration of any Interest Period with respect to a Borrowing, a
Borrower has failed to elect a new Interest Period to be applicable to
such Advances as provided above, such Borrower (x) if such Borrower
is the Company, shall be deemed to have elected to convert such Advances
into a Base Rate Advance effective as of the expiration date of such
current Interest Period and (y) if such Borrower is a Designated
Subsidiary, shall be deemed to have elected a new Interest Period of 1
month to be applicable to such Advances;
and
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(vi) Interest
Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same
duration.
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“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto.
“Lender Appointment
Period” has the meaning provided in Section 7.07.
“Lenders” means the
Initial Lenders and each Person that shall become a party hereto pursuant to
Section 8.07.
“Lien” shall mean any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), or preferential payment arrangement, priority or
other security agreement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same effect as any of the foregoing and
the filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction, domestic or
foreign.
“Loan Documents”
means, collectively, this Agreement, the Notes, each Designation Letter and each
Termination Letter.
“Loan Parties” means,
collectively, the Borrowers and the Guarantors.
“Local Time” means (a)
with respect to any Advance denominated or any payment to be made in Dollars,
New York City time, and (b) with respect to any Advance denominated or any
payment to be made in an Alternate Currency, the local time in the Principal
Financial Center for such Alternate Currency.
“London Banking Day”
means any day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in
London.
“Long-Term
Indebtedness” means the long-term Senior Unsecured Indebtedness of the
Company.
“Margin Stock” has the
meaning provided in Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
“Material Adverse
Effect” means a material adverse effect on the business, financial
condition or results of operations of the Company and its Consolidated
Subsidiaries taken as a whole.
“Maturity Date” means
the earlier of (a) the date selected by the Company and notified to the
Administrative Agent in the Term Loan Election, but not later than the first
anniversary of the Termination Date and (b) the date of termination in whole of
the aggregate Commitments pursuant to Section 2.01(b) or 6.01.
“MCR Cost” means, the
percentage rate per annum calculated by the Administrative Agent in accordance
with Schedule II.
“Moody’s” means
Xxxxx’x Investors Service, Inc. and any successor or successors
thereto.
“Multiemployer Plan”
means a Plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA.
“Note” has the meaning
provided in Section 2.11.
“Notice of Borrowing”
has the meaning provided in Section 2.02(b).
“Notice of Conversion or
Continuation” has the meaning provided in
Section 2.04(b).
“Other Taxes” has the
meaning provided in Section 2.10(b).
“PBGC” means the
Pension Benefit Guaranty Corporation established under ERISA, or any successor
thereto.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means any
employee benefit plan covered by Title IV of ERISA, the funding requirements of
which:
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(i) were
the responsibility of the Company or a member of its ERISA Controlled
Group at any time within the five years immediately preceding the date
hereof,
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(ii) are
currently the responsibility of the Company or a member of its ERISA
Controlled Group, or
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(iii) hereafter
become the responsibility of the Company or a member of its ERISA
Controlled Group, including any such plans as may have been, or may
hereafter be, terminated for whatever
reason.
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“Pounds Sterling”
means the lawful currency of the United Kingdom.
“Principal Financial
Center” means, in the case of any Currency, the principal financial
center in the country of issue of such Currency, as reasonably determined by the
Administrative Agent.
“Principal Property”
means all real property and tangible personal property constituting a
manufacturing plant owned by the Company or any of its Subsidiaries, exclusive
of (i) motor vehicles, mobile materials handling equipment and other rolling
stock, (ii) office furnishings and equipment, information and electronic data
processing equipment, (iii) any property financed through obligations issued by
a state, territory or possession of the United States, or any political
subdivision or instrumentality of the foregoing, on which the interest cannot,
in the opinion of tax counsel of recognized standing or in accordance with a
ruling issued by the Internal Revenue Service, be included in gross income of
the holder under Section 103(a)(1) of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the issuance of such
obligations, (iv) any real property held for development or sale, or (v) any
property and equipment included therein without deduction of any depreciation
reserves the book value of which property and equipment in the aggregate is less
than 10% of Consolidated Net Worth or which the Board of Directors of the
Company determines is not material to the operation of the business of the
Company and its Subsidiaries taken as a whole.
“Principal Subsidiary”
means any Subsidiary of the Company which has net sales which represent 15% or
more of the consolidated net sales of the Company and its Consolidated
Subsidiaries taken as a whole.
“Process Agent” has
the meaning provided in Section 8.13(b).
“Pro Rata Share”
means, with respect to any Lender, the percentage corresponding to the fraction
the numerator of which shall be the amount of the Commitment of such Lender and
the denominator of which shall be the aggregate amount of the Commitments of all
Lenders.
“Rate Notification”
has the meaning provided in Section 2.02(a).
“Rate Request” has the
meaning provided in Section 2.02(a).
“Reference Bank” means
Citibank or, if Citibank is no longer the Administrative Agent, such Person
(which shall be a Lender or the Administrative Agent) as shall be designated by
the Company with the consent of the Required Lenders, which consent shall not be
unreasonably withheld.
“Register” has the
meaning provided in Section 8.07(d).
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and such Person’s
and such Person’s Affiliates’ respective managers, administrators,
trustees, partners, directors, officers, employees, agents, fund
managers and advisors.
“Reportable Event” has
the meaning provided in Section 4043(b) of ERISA (other than a Reportable Event
as to which the provision of 30 days notice to the PBGC is waived under
applicable regulations).
“Required Lenders”
means at any time Lenders representing in the aggregate at least 51% of the
Commitments or, if the Commitments shall have terminated, Lenders representing
in the aggregate at least 51% of the sum of the Advances owing to Lenders
hereunder (computed, in the case of Advances in an Alternate Currency, as the
Dollar Equivalent thereof as determined by the Administrative
Agent).
“Restricting
Information” has the meaning provided in Section 8.02(d).
“Restructuring Period” means (a) if the
Company reports taking any restructuring charges during any quarter of its
fiscal year 2009 in the Company’s Exchange Act disclosure documents filed with
the Securities and Exchange Commission on Forms 8K, 10K or 10Q (or their
equivalents) (the Company’s “SEC
Filings”), each such fiscal quarter of the Company during its fiscal year
2009, and (b) each fiscal quarter of the Company during fiscal years 2010, 2011,
2012, and 2013.
“Screen Page” means
the display designated as Reuters LIBOR01 Page or EURIBOR01 Page, as the case
may be (or such other page as may replace that page for the purpose of
displaying London interbank offered rates or the Euro interbank offered rates of
major banks). If more than one relevant rate appears on said LIBOR01
Page or EURIBOR01 Page with respect to an Interest Period, the Eurocurrency Rate
for that Interest Period will be based upon the arithmetic mean of such relevant
rates.
“SEC Filings” has the
meaning provided in the definition of “Restructuring Period”.
“Senior Unsecured
Indebtedness” means Indebtedness that is not subordinated to any other
Indebtedness and is not secured or supported by a guarantee, letter of credit or
other form of credit enhancement.
“Standard &
Poor’s” means Standard & Poor’s Ratings Services and any successor or
successors thereto.
“Subsidiary” of any
Person means (i) any corporation 50% or more of whose stock of any class or
classes having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time owned
by such Person directly or indirectly through Subsidiaries and (ii) any
partnership, association, joint venture, limited liability company or other
entity in which such Person, directly or indirectly through Subsidiaries, is
either a general partner or has a 50% or more equity interest at the
time.
“TARGET” means
Trans–European Automated Real–time Gross Settlement Express Transfer payment
system.
“TARGET Day” means any
day on which TARGET is open for the settlement of payments in
Euros.
“Target Operating Day”
has the meaning provided in Section 2.15.
“Taxes” has the
meaning provided in Section 2.10(a).
“Term Loan Conversion
Date” means the Termination Date, if on such date all Advances
outstanding on such date are converted into a term loan pursuant to Section
2.07(a).
“Term Loan Election”
has the meaning specified in Section 2.07(a).
“Termination Date”
means the earlier of (a) March [11], 2011 or (b) the date of termination in
whole of the Commitments pursuant to Section 2.01(b) or Section
6.01.
“Termination Event”
means (i) a Reportable Event, or (ii) the initiation of any action by the
Company, any member of the Company’s ERISA Controlled Group or any ERISA Plan
fiduciary to terminate an ERISA Plan or the treatment of an amendment to an
ERISA Plan as a termination under ERISA, or (iii) the institution of proceedings
by the PBGC under Section 4042 of ERISA to terminate an ERISA Plan or to appoint
a trustee to administer any ERISA Plan.
“Termination Letter”
has the meaning provided in Section 2.14.
“Type” has the meaning
provided in the definition of Advance.
“Unfunded Benefit
Liabilities” means with respect to any Plan at any time, the amount (if
any) by which (i) the present value of all benefit liabilities under such Plan
as defined in Section 4001(a)(16) of ERISA, exceeds (ii) the fair market value
of all Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plan (on the basis of assumptions prescribed
by the PBGC for the purpose of Section 4044 of ERISA).
SECTION 1.02 Computation of Time
Periods; Terms Generally. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
“from” means “from and including” and the words “to” and “until” each mean “to
but excluding”. The words “include”, “includes” and “including” shall
be deemed to be followed by the phrase “without limitation”.
SECTION 1.03 Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP.
AMOUNTS AND TERMS OF THE
ADVANCES
SECTION 2.01 The
Commitment. (a) The
Advances. (i) Each Lender agrees, on the terms and
conditions hereinafter set forth to make Advances to the Company and any
Designated Borrower in Dollars or an Alternate Currency from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding such Lender’s
Commitment; provided that
(A) at no time shall the aggregate outstanding principal amount of all
Advances exceed the total amount of the Commitments at such time; and
(B) at no time shall the Dollar Equivalent of the aggregate outstanding
principal amount of all Advances denominated in an Alternate Currency to the
Borrowers exceed the Foreign Currency Sublimit.
(ii) Within
the limits of each Lender’s Commitment and subject to the limitation set forth
in Section 2.07(c), each Borrower may borrow, repay, prepay (as provided in
Section 2.07) and reborrow such amount or any portion thereof.
(iii) Each
Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof (or, in the case of a Borrowing denominated in
an Alternate Currency, the Foreign Currency Equivalent thereof in such Alternate
Currency, rounded to the nearest 1,000,000 units of such Alternate Currency) or,
if less, the aggregate amount of the unused Commitments and shall consist of
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments.
(b) Termination
and Reduction. The Company shall have the right, upon at least three
Business Days’ notice to the Administrative Agent, to terminate in whole or
reduce each Lender’s Pro Rata Share of the unused Commitments. Each
partial reduction of the Commitments shall be in the aggregate amount of at
least $10,000,000 or a larger whole multiple of $1,000,000. On the
Termination Date, if the Borrower has made the Term Loan Election in accordance
with Section 2.07(a) prior to such date, and from time to time thereafter upon
each prepayment of the Advances, the Commitments of the Lenders shall be
automatically and permanently reduced on a pro rata basis by an amount equal to
the amount by which (i) the aggregate Commitments immediately prior to such
reduction exceeds (ii) the aggregate unpaid principal amount of all Advances
outstanding at such time.
SECTION 2.02 Making the
Advances. (a) Determination of
Eurocurrency Rate. The Company (on its own behalf or on behalf
of any Designated Borrower) may request the Reference Bank, no earlier than 9:00
A.M. (New York City time) and no later than 11:00 A.M. (New York City time) on
the third Business Day before a proposed Eurocurrency Rate Advance, to notify
the Company of the Eurocurrency Rate that would be applicable to an Advance in
the principal amount, in the Currency, and with the Interest Period as described
by the Company in such request, which request shall be substantially in the form
of Exhibit A-1 hereto (a “Rate
Request”). Upon such request, the Reference Bank shall furnish
such interest rate to the Company no later than noon (New York City time) on the
second Business Day before the proposed Eurocurrency Rate Advance by delivering
to the Company a copy of the related Rate Request setting forth such rate and
executed by an authorized officer of the Reference Bank in the space provided
therefor (a “Rate
Notification”). The relevant Borrower shall be entitled to
rely on any such notification and such rate shall be conclusive and binding on
the Lenders absent manifest error.
(b) Notice
of Borrowing. Each Borrowing shall be made on notice by the Company
(on its own behalf or on behalf of any Designated Borrower) to the
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier, given not later than 11:00 A.M. (New York City time) on the date of
the proposed Borrowing if such Borrowing is to be comprised of Base Rate
Advances and no earlier than 9:00 A.M. (New York City time) and no later than
4:00 P.M. (New York City time) on the third Business Day prior to such date if
such Borrowing is to be comprised of Eurocurrency Rate Advances. Each
such notice of a Borrowing (a “Notice of Borrowing”) shall be by telecopier, or
by telephone confirmed immediately in writing, in substantially the form of
Exhibit A-2 hereto, specifying therein: (i) the name of the Borrower
(which shall be the Company or a Designated Borrower), (ii) the requested date
of such Borrowing, (iii) the Type of Advances comprising such Borrowing,
(iv) the aggregate amount and, for any Designated Borrower, the Currency of
such Borrowing, and (v) in the case of a Borrowing consisting of Eurocurrency
Rate Advances, the initial Interest Period for each such
Advance. Each Lender shall, before 1:00 P.M. (Local Time) on the date
of such Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent’s Account for
Advances denominated in the relevant Currency, in the relevant Currency and in
same day funds, such Lender’s Pro Rata Share of the requested amount of such
Borrowing. Promptly after the Administrative Agent’s receipt of such
funds (and in any event by the close of business New York City time on the date
of such Borrowing) and upon fulfillment of the applicable conditions set forth
in Article III, the Administrative Agent will make the funds so received
available to the Company or such other Borrower by depositing the same in such
Currency and in immediately available funds into such account of the Company or
such other Borrower, as applicable, maintained with the Administrative Agent in
New York City (if such Advance is denominated in Dollars) or in the Principal
Financial Center for any other Currency (if such Advance is denominated in an
Alternate Currency) as shall have been specified in the related Notice of
Borrowing.
(c) Illegality,
Etc. Anything in subsection (a) or (b) above to the contrary
notwithstanding,
(i) if
any Lender shall, at least one Business Day before the date of any requested
Eurocurrency Advance or the date of any conversion to or continuation of a
Eurocurrency Rate Advance, notify the Administrative Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts that
it is unlawful, for such Lender or its Eurocurrency Lending Office to perform
its obligations hereunder to make Eurocurrency Rate Advances or to fund or
maintain Eurocurrency Rate Advances hereunder, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Company, whereupon
(A) such Lender shall have no obligation to make Eurocurrency Rate Advances, or
to convert Advances into Eurocurrency Rate Advances, until such Lender notifies
the Company and the Administrative Agent that the circumstances causing such
suspension no longer exist and (B) each Borrower shall be deemed to have
converted all Eurocurrency Rate Advances of such Lender then outstanding into
Base Rate Advances in accordance with Section 2.04 on and as of the date of the
Administrative Agent’s receipt of such notice, unless and to the extent such
notice directs that one or more Eurocurrency Rate Advances shall be so converted
on the last day of the applicable Interest Period, provided that (w)
before giving any such notice, such Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for such suspension and conversion and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender, (x) any request by a Borrower for Eurocurrency Rate Advances during
a time when a Lender’s obligation to make, or convert Advances into,
Eurocurrency Rate Advances shall be suspended hereunder shall be deemed to be a
request for, or for conversion into, Base Rate Advances from such Lender, (y)
all Advances that would otherwise be made by such Lender as Eurocurrency Rate
Advances during any such suspension shall instead be made as Base Rate Advances
and (z) in the event any Lender shall notify the Administrative Agent
and the Company of the occurrence of the circumstances causing such suspension
under this Section 2.02(c), all payments and prepayments of principal that would
otherwise have been applied to repay the Eurocurrency Rate Advances that would
have been made by such Lender or the converted Eurocurrency Rate Advances shall
instead be applied to repay the Base Rate Advances made by such Lender in lieu
of, or resulting from the conversion of, such Eurocurrency Rate
Advances;
(ii) if
the Reference Bank cannot furnish the Eurocurrency Rate for any Borrowing
consisting of Eurocurrency Rate Advances because of conditions existing in the
London interbank market, the right of the Borrowers to select Eurocurrency Rate
Advances shall be suspended until the Reference Bank shall notify the Company
and the Lenders that the circumstances causing such suspension no longer
exist;
(iii) if
the Required Lenders shall, at least one Business Day before the date of any
requested Eurocurrency Rate Advance, notify the Administrative Agent that the
Eurocurrency Rate for any Interest Period will not adequately reflect the cost
to the Required Lenders of making, funding or maintaining their respective
Eurocurrency Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Company and the Lenders, whereupon the Lenders
shall have no obligation to make, or convert Advances into, Eurocurrency Rate
Advances until the Administrative Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist; and
(iv) if
the Required Lenders shall, at least one Business Day before the date of any
Advance to a Designated Borrower, notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other governmental
authority asserts that it is unlawful, for such Lenders to perform their
obligations hereunder to make Advances or to fund or maintain Advances hereunder
to such Designated Borrower, the Administrative Agent shall forthwith give
notice thereof to the other Lenders and the Company, whereupon the Lenders shall
have no obligation to make Advances to such Designated Borrower, until the
Administrative Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(d) Effect
of Failure to Fulfill Conditions. Each Notice of Borrowing shall be
irrevocable and binding on the Company and the relevant Designated
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the
relevant Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding anticipated profits), cost or expense reasonably incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date, such
indemnity to be paid promptly upon receipt by the relevant Borrower of a
certificate of such Lender setting forth the calculation of the amount of the
indemnity claimed by such Lender.
(e) Funds
Available. Unless the Administrative Agent shall have received notice
from a Lender prior to 1:00 P.M. (New York City time) on the date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s ratable 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 subsection (a) of
this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made
such ratable portion available to the Administrative Agent, such Lender and the
relevant 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 relevant Borrower until the
date such amount is repaid to the Administrative Agent, at (i) in the case
of the relevant Borrower, the interest rate applicable at the time to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Lender’s
Advance as part of such Borrowing for purposes of this Agreement.
(f) Failure
to Make Advances. The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03 Fees. (a) Facility
Fee. The Company agrees to pay to the Administrative Agent for
the account of each Lender a facility fee in Dollars on the aggregate amount of
such Lender’s Commitment (whether or not utilized and, after the Termination
Date (if the Term Loan Conversion Date has not occurred), on the aggregate
outstanding principal amount of the Advances of such Lender, if any) from the
date hereof in the case of each Lender and, in the case of each Person which
becomes a Lender pursuant to Section 8.07, from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender, until the
Termination Date at the Applicable Facility Fee Rate, payable quarterly in
arrears on the last day of each March, June, September and December during the
term hereof and on the Termination Date. All computations of the
facility fee shall be based on a year of 360 days.
(b) Administrative
Agent’s Fees. The Company shall pay to the Administrative Agent in
Dollars for its own account such fees as may from time to time be agreed between
the Company and the Administrative Agent.
SECTION 2.04 Continuation and
Conversion. (a) General. Subject
to the other provisions hereof, each Borrower shall have the option (i) to
convert all or any part of an outstanding Borrowing consisting of Base Rate
Advances to a Borrowing consisting of Eurocurrency Rate Advances, (ii) to
convert all or any part of an outstanding Borrowing in Dollars consisting of
Eurocurrency Rate Advances to a Borrowing consisting of Base Rate Advances, or
(iii) to continue all or any part of an outstanding Borrowing consisting of
Eurocurrency Rate Advances as a Borrowing consisting of Eurocurrency Rate
Advances for an additional Interest Period; provided that no
Borrowing consisting of Eurocurrency Rate Advances shall be so converted other
than as contemplated by Section 2.02(c) or continued, until the expiration of
the Interest Period applicable thereto.
(b) Notice
of Conversion or Continuation. In order to elect to convert or
continue a Borrowing hereunder, the Company (on its own behalf or on behalf of
any Designated Borrower) shall deliver an irrevocable notice thereof (a “Notice
of Conversion or Continuation”) to the Administrative Agent by telecopier or by
telephone confirmed immediately in writing, no later than (i) 11:00 A.M., (New
York City time) on the proposed conversion date in the case of a conversion to
Base Rate Advances and (ii) no earlier than 9:00 A.M. (New York City time) and
no later than 4:00 P.M. (New York City time) on the third Business Day in
advance of the proposed conversion or continuation date in the case of a
conversion to, or a continuation of, Eurocurrency Rate Advances, substantially
in the form of Exhibit B hereto. A Notice of Conversion or
Continuation shall specify (w) the requested conversion or continuation date
(which shall be a Business Day), (x) the amount and Type of the Advances to be
converted or continued, (y) whether a conversion or continuation is requested,
and (z) in the case of a conversion to, or a continuation of, Eurocurrency Rate
Advances, the requested Interest Period. The relevant Eurocurrency
Rate for such Interest Period in the case of a conversion to, or a continuation
of, Eurocurrency Rate Advances shall be determined in the manner provided in
Section 2.02(a) as if such conversion or continuation is instead new
Eurocurrency Rate Advances in such amount, on such date and for such Interest
Period. If the Company fails to give a Notice of Conversion or
Continuation with respect to an outstanding Borrowing consisting of Eurocurrency
Rate Advances in Dollars as provided in clause (ii) above, the Company shall be
deemed to have converted such Eurocurrency Rate Advances into Base Rate Advances
in accordance with this Section 2.04 if such Advances are outstanding after the
last day of the Interest Period with respect thereto. If the Company
fails to give a Notice of Conversion or Continuation with respect to an
outstanding Borrowing consisting of Eurocurrency Rate Advances in an Alternate
Currency as provided in clause (ii) above, the Company shall be deemed to have
converted such Eurocurrency Rate Advances into a Eurocurrency Rate Advance with
an Interest Period of one (1) month in accordance with this Section 2.04 if such
Advances are outstanding after the last day of the Interest Period with respect
thereto.
SECTION 2.05 Interest on
Advances. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date the proceeds
of such Advance are made available to such Borrower until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base
Rate Advances. If such Advance is a Base Rate Advance, a rate per
annum equal to the Base Rate in effect from time to time plus the Applicable
Base Rate Margin, payable in arrears quarterly on the last Business Day of each
fiscal quarter during the period such Base Rate Advance remains outstanding and
on the date such Base Rate Advance shall be paid in full;
(b) Eurocurrency
Rate Advances. If such Advance is a Eurocurrency Rate Advance, a rate
per annum equal at all times during the Interest Period for such Advance to the
sum of the Eurocurrency Rate for such Interest Period plus the Applicable
Eurocurrency Margin for such Interest Period, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of more than
three months, on each day which occurs during such Interest Period every three
months from the first day of such Interest Period;
(c) Default
Rate. In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of all
Advances and, to the extent permitted by law, overdue interest in respect of all
Advances, shall bear interest at a rate per annum equal to the sum of two
percent (2%) plus the interest rate otherwise applicable hereunder to such
principal amount in effect from time to time. In the event that, and
for so long as, any Default under Section 6.01(a) shall have occurred and be
continuing, the outstanding principal amount of the Advance with respect to
which such Default has occurred and is continuing shall bear interest at a rate
per annum equal to the sum of two percent (2%) plus the interest rate otherwise
applicable hereunder to such principal amount in effect from time to
time.
SECTION 2.06 Additional Interest on
Eurocurrency Rate Advances. Each Borrower shall pay to
each Lender, during each period as such Lender shall be required under
regulations of the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurocurrency Rate
Advance of such Lender outstanding during such period, from the later of the
date such reserves are required and the making of such Advance until the earlier
of the date such reserves are no longer required and such principal amount is
paid in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurocurrency Rate for the Interest Period
applicable to such Advance from (ii) the rate obtained by dividing such
Eurocurrency Rate by a percentage equal to 100% minus the average Eurocurrency
Rate Reserve Percentage of such Lender during such period, payable on each date
on which interest is payable on such Advance. Such Lender shall
determine the amount of such additional interest, if any, and promptly notify
the relevant Borrower through the Administrative Agent of the amount
thereof.
SECTION 2.07 Repayment; Prepayment of
Advances; Etc. (a) Repayment. Each
Borrower shall, subject to the next succeeding sentence, repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then
outstanding. The Company may, upon not less than 15 days’ notice to
the Administrative Agent, elect (the “Term Loan Election”)
to convert all of the Advances outstanding on the Termination Date in effect at
such time into a term loan which the Borrowers shall repay in full ratably to
the Lenders on the Maturity Date; provided that the
Term Loan Election may not be exercised unless (i) the Borrower has, on or prior
to the Termination Date, paid to the Administrative Agent for the account of
each Lender, a fee equal to 1.00% of the principal amount of the Advances
outstanding on the Termination Date, each such fee to be allocated to the
Lenders in accordance with their respective Pro Rata Shares; and (ii) the
conditions listed in Section 3.02(i)(x) and (y) are satisfied on the date of
notice of the Term Loan Election and on the date on which the Term Loan Election
is to be effected. All Advances converted into a term loan pursuant
to this Section 2.07 shall continue to constitute Advances except that the
Borrowers may not reborrow pursuant to Section 2.01 after all or any portion of
such Advances have been prepaid pursuant to Section 2.07(b).
(b) Prepayment
of Advances. (i) No Borrower shall have the right to prepay any
principal amount of any Advances other than as provided in this Section
2.07. Any Borrower may, upon notice no later than 11:00 A.M. (New
York City time) on the second Business Day before the prepayment of Eurocurrency
Rate Advances, and no later than 11:00 A.M. (New York City time) on the day of
the prepayment in the case of Base Rate Advances, in either case to the
Administrative Agent and stating the proposed date and principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
each partial prepayment shall be in the aggregate principal amount of at least
$5,000,000 or a larger whole multiple of $1,000,000 (or, in the case of Advances
denominated in an Alternate Currency, the Foreign Currency Equivalent thereof in
such Alternate Currency, rounded to the nearest 1,000,000 units of such
Alternate Currency) and, in the case of a payment or prepayment of a
Eurocurrency Rate Advance other than on the last day of the Interest Period for
such Advance as provided herein, shall have the consequences set forth in
Section 8.04(b).
(ii) The
Company shall notify the Administrative Agent immediately upon becoming aware of
any Change of Control. Upon receipt of such notice and for a period
of 90 days thereafter, the Required Lenders shall be entitled, by written notice
to the Company received within such period, to terminate the Commitments in
whole and require the Company and any other Borrower to prepay all outstanding
Advances within 5 Business Days of its receipt of such notice, together with any
accrued and unpaid interest thereon to the date of such prepayment and any other
amounts due hereunder. Notwithstanding any other provision contained
herein, a Change of Control shall not, in and of itself, constitute a Default
hereunder.
(c) Alternate
Currency Revaluation. (i) If at any time by reason of
fluctuations in foreign exchange rates (1) the aggregate outstanding principal
amount of all Advances (for which purpose the amount of any Advance that is
denominated in an Alternate Currency shall be deemed to be the Dollar Equivalent
thereof as of the date of determination) exceeds 105% of the aggregate amount of
the Commitments at such time or (2) the aggregate outstanding principal amount
of all Advances denominated in Alternate Currencies exceeds 105% of the Foreign
Currency Sublimit at such time, the Administrative Agent shall use all
reasonable efforts to give prompt written notice thereof to the Company,
specifying the amount to be prepaid under this clause (i), and the Company
shall, within five Business Days of the date of such notice, prepay the
Advances, or cause Advances to be prepaid, in an amount so that after giving
effect thereto the aggregate outstanding principal amount of the Advances
(determined as aforesaid) does not exceed the aggregate amount of the
Commitments; provided that any such payment shall be accompanied by any amounts
payable under Section 8.04(b). The determination of which
Advances to prepay hereunder shall be at the sole option of the
Company. The determinations of the Administrative Agent hereunder
shall be conclusive and binding on the Borrowers in the absence of manifest
error.
(ii) In
addition, if on the last day of any Interest Period the aggregate outstanding
principal amount of the Advances (for which purpose the amount of any Advance
that is denominated in an Alternate Currency shall be deemed to be the Dollar
Equivalent thereof as of the date of determination), would exceed 100% of the
aggregate amount of the Commitments, the Administrative Agent shall use all
reasonable efforts to give prompt written notice thereof to the Company,
specifying the amount to be prepaid under this clause (ii), and the Company
shall, within five Business Days of the date of such notice, prepay the
Advances, or cause Advances to be prepaid, or reduce the requested Advances in
such amounts that after giving effect to such action the aggregate outstanding
principal amount of the Advances does not exceed the aggregate amount of the
Commitments; provided that any
such payment shall be accompanied by any amounts payable under
Section 8.04(b). The determination of which Advances to prepay
hereunder shall be at the sole option of the Company. The
determinations of the Administrative Agent hereunder shall be conclusive and
binding on the Borrowers in the absence of manifest error.
SECTION 2.08 Increased
Costs. (a) Changes in Law,
Etc. If, due to (i) the introduction of or any change in or in
the official interpretation of any law or regulation on or after the date of
this Agreement, or (ii) the compliance with any guideline or request not
applicable on the date of this Agreement from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurocurrency Rate Advances, then the Company shall from time to
time, promptly upon demand by such Lender (with a copy of such demand to the
Administrative Agent) accompanied by the certificate described in the next
sentence, pay, or cause to be paid, to the Administrative Agent for the account
of such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased
cost, submitted to the Company and the Administrative Agent by such Lender,
shall be conclusive and binding on the Borrowers for all purposes, absent
manifest error.
(b) Capital
Adequacy. If, due to (i) the introduction of or any change in or in
the official interpretation of any law or regulation on or after the date of
this Agreement, or (ii) the compliance with any guideline or request not
applicable on the date of this Agreement from any central bank or other
governmental authority (whether or not having the force of law), any Lender
determines that the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender has been or would be
affected and that the amount of such capital is increased by or based upon the
existence of such Lender’s Advances or commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender received by the
Company within such time from the relevant change or introduction described
above as is reasonably required in order to determine the effect thereof (with a
copy of such demand to the Administrative Agent) accompanied by a certificate of
such Lender as to the amounts demanded, the Company shall pay, or cause to be
paid, to the Administrative Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation, as the case may be, to the extent that such
Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s Advances or commitment to lend hereunder, such
amounts to be due and payable within two days of such Lender’s invoice
therefor. A certificate as to such amounts submitted to the Company
and the Administrative Agent by such Lender shall be conclusive and binding on
the Borrowers for all purposes, absent manifest error.
SECTION 2.09 Payments and
Computations. (a) Manner of
Payment. Each Borrower shall make each payment hereunder and
under the Notes without deduction, setoff or counterclaim not later than 11:00
A.M. (Local Time) on the day when due to the Administrative Agent at the
Administrative Agent’s Account in the Principal Financial Center for the
relevant Currency in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like Currency and funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or 8.04(b))
to the Lenders for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(c), from and
after the effective date specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance (which shall not include any
Borrower) shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves. The making by any
Borrower of any payment to the Administrative Agent for the account of any
Lender as herein provided shall pro tanto discharge the
relevant obligation of such Borrower to such Lender.
(b) 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, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
indebtedness at any time owing by such Lender to any Borrower against any of and
all the obligations of such Borrower now or hereafter existing under this
Agreement and the Notes held by such Lender, although such obligations may be
unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
(c) Interest. All
computations of interest based on (i) the Base Rate and the Eurocurrency
Rate for Advances denominated in Pounds Sterling shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and (ii) the Eurocurrency Rate for Advances denominated in a Currency
other than Pounds Sterling or the Federal Funds Rate and all computations of
interest pursuant to Section 2.06 shall be made by the Administrative Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable. Each determination by the Reference
Bank of an interest rate for any Advance hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Business
Days. Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided that if such extension would cause payment of interest
on or principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business
Day.
(e) Assumption
of Payment. Unless the Administrative Agent shall have received
notice from a Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and
to the extent such Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate (if such Advance is denominated in Dollars) or
at the London interbank offered rate for the relevant Currency (if such Advance
is denominated in an Alternate Currency).
(f) Rate
Information. The Reference Bank shall notify the Company and the
Administrative Agent of the Base Rate in effect on the first Business Day on
which a Base Rate Advance is outstanding and each day on which a change in the
Base Rate occurs, each in sufficient detail to enable the Company to calculate
interest payments hereunder with respect to Base Rate Advances, and shall
provide such information to any Lender promptly upon its request. The
Company will provide to the Administrative Agent (i) promptly upon receipt
thereof copies of the information received by the Company pursuant to the
immediately preceding sentence or any Rate Notification received pursuant to
Section 2.02(a), (ii) promptly upon the making of any interest payment with
respect to a Base Rate Advance hereunder a schedule based on such information
setting forth the Base Rate for each day in the period in which such Advance was
outstanding, and (iii) promptly upon obtaining knowledge thereof, notice of any
change in the rating assigned by Standard & Poor’s, Xxxxx’x, or Fitch to the
Company’s Long-Term Indebtedness and the date of such change, provided that the
Company’s failure to provide any of the foregoing information shall be deemed
not to be a Default or Event of Default hereunder.
(g) Currency
of Payments. All payments of principal of and interest on, and any
amounts payable under Section 2.06 in respect of, an Advance that is
denominated in a particular Currency shall be made in such Currency, and all
other amounts payable under this Agreement (except as specified in
Section 9.06) shall be paid in Dollars.
SECTION 2.10 Taxes. (a) General. Any
and all payments by each Loan Party hereunder or under the Notes shall be made
in accordance with Section 2.09, free and clear of and without deduction for any
and all taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (which are, with respect to payments by the
Company or the Subsidiary Guarantor only, not in effect or not imposed on the
date of this Agreement); excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on its income,
and franchise taxes imposed on it by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Lender’s Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as “Taxes”).
(b) Other
Taxes. In addition, each Loan Party agrees to pay any stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement not in effect or not imposed on the date of this Agreement or the
Notes (hereinafter referred to as “Other Taxes”) upon notice from the
Lender.
(c) Tax
Indemnity. Each Loan Party will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.10) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Receipt. Within
30 days after the date of any payment of Taxes, each Loan Party will furnish to
the Administrative Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment
thereof.
SECTION 2.11 Promissory
Notes. Any Lender may request that Advances of any Type
made by it be evidenced by a promissory note. In such event, the
relevant Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) substantially in the form of Exhibit E (a “Note”) in the case of
the Advances. Thereafter, such Advances evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 8.07) be represented by one or more promissory notes in
such form payable to the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.12 Use of Proceeds of
Advances. Each Borrower will use the proceeds of the
Advances solely for general corporate purposes, including, without limitation,
for the acquisition of Margin Stock.
SECTION 2.14 Borrowings by Designated
Borrowers. (a) The Company may, at
any time or from time to time, upon not less than 10 Business Day’s notice to
the Administrative Agent, designate one or more Subsidiaries organized in any of
the jurisdictions listed on Schedule III as Borrowers
hereunder. Upon any such designation of a Subsidiary and the
Administrative Agent’s receipt of each of the following (copies of which will be
promptly furnished by the Administrative Agent to the Lenders), which shall be
in form and substance reasonably satisfactory to the Administrative Agent, such
Subsidiary shall be a Designated Borrower and a Borrower entitled to make
Borrowings on and subject to the terms and conditions of this
Agreement:
(i) Executed
Counterparts. A designation letter (a “Designation Letter”)
in duplicate, in substantially the form of Exhibit F, duly completed and
executed by the Company and such Designated Borrower and delivered to the
Administrative Agent at least ten Business Days before the date on which such
Subsidiary is to become a Designated Borrower;
(ii) Opinion of Counsel to the
Designated Borrower. A favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the date of the Designation
Letter) of reputable counsel to such Designated Borrower (which may be internal
counsel) in the relevant jurisdiction (and such Designated Borrower hereby and
by delivery of such Designation Letter instruct such counsel to deliver such
opinion to the Lenders and the Administrative Agent), as to the due organization
of such Designated Borrower under the laws of its jurisdiction of organization,
the due authorization, execution and delivery by such Designated Borrower of
such Designation Letter and of the making of Borrowings by it hereunder, the
obtaining of all licenses, approvals and consents of, and the making of all
filings and registrations with, any applicable Governmental Authority required
in connection therewith and the legality, validity and binding effect and
enforceability thereof, and such other legal matters relating thereto as the
Administrative Agent may reasonably request;
(iii) Corporate
Documents. Such documents and certificates as the
Administrative Agent may reasonably request (including without limitation
certified copies of the charter and by-laws of such Designated Borrower and of
resolutions of its Board of Directors authorizing such Designated Borrower’s
acceptance of the Company’s designation as a “Designated Borrower” and its
becoming a Borrower under this Agreement, and of all documents evidencing all
other necessary corporate or other action required with respect to such
Designated Borrower becoming party to this Agreement;
(iv) Process
Agent. Evidence that the Process Agent has agreed to act as
agent for service of process in New York, New York on behalf of such Designated
Borrower under the Loan Documents.
(v) Expenses. Evidence
that such Designated Borrower or the Company shall have paid any and all
expenses reasonably incurred by the Administrative Agent (including the
reasonable fees and expenses of counsel to the Administrative Agent) in
connection with its designation as a Designated Borrower; and
(vi) Other
Items. Such other documents relating thereto as the
Administrative Agent or any Lender or special New York counsel to the
Administrative Agent may reasonably request, including any documentation and
other evidence which may be requested by the Administrative Agent or any Lender
to comply with and/or administer any “know your customer” or other customer
identification related policies and procedures required under applicable laws
and regulations.
(b) So
long as all principal of and interest on all Advances made to any Designated
Borrower and all other amounts payable by such Designated Borrower under this
Agreement and the other Loan Documents have been paid in full, the Company may
terminate the status of such Designated Borrower as a Borrower hereunder by
furnishing to the Administrative Agent a letter (a “Termination Letter”) in
substantially the form of Exhibit G, duly completed and executed by the
Company. Any Termination Letter furnished hereunder shall be
effective upon receipt thereof by the Administrative Agent, which shall promptly
so notify the Lenders. Notwithstanding the foregoing, the delivery of
a Termination Letter with respect to any Designated Borrower shall not terminate
(i) any obligation of such Borrower that remains unpaid at the time of such
delivery (including without limitation any obligation arising thereafter in
respect of such Borrower under Section 2.08 or Section 2.10) or
(ii) the obligations of the Company under Article IX with respect to
any unpaid obligations of such Borrower.
SECTION 2.15 European Monetary
Union. (a) Definitions. In
this Section 2.15 and in each other provision of this Agreement to which
reference is made in this Section 2.15 (whether expressly or impliedly), the
following terms have the meanings given to them in this Section
2.15:
“EMU” shall mean
economic and monetary union as contemplated in the Treaty on European
Union.
“EMU Legislation”
shall mean legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency, being in
part the implementation of the third stage of EMU.
“Euro” shall mean the
single currency of Participating Member States of the European
Union.
“Participating Member
State” shall mean each state so described in any EMU
Legislation.
“Target Operating Day”
shall mean any day that is not (i) a Saturday or Sunday, (ii) Christmas Day or
New Year’s Day or (iii) any other day on which the Trans-European Real-time
Gross Settlement Express Transfer system (or any successor settlement system) is
not operating (as determined by the Administrative Agent).
“Treaty on European
Union” shall mean the Treaty of Rome of March 25, 1957, as amended by the
Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992, and came into force on November 1, 1993), as
amended from time to time.
(b) Payments
by the Administrative Agent Generally. With respect to the payment of
any amount denominated in the Euro, the Administrative Agent shall not be liable
to the Company or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds to the account of the Company or any Lender,
as the case may be, in the Principal Financial Center in the Participating
Member State which the Company or, as the case may be, such Lender shall have
specified for such purpose. In this paragraph (b), “all relevant
steps” shall mean all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system as the
Administrative Agent may from time to time reasonably determine for the purpose
of clearing or settling payments of the Euro.
(c) Determination
of Eurocurrency Rate. For the purposes of determining the date on
which the applicable rate for Eurocurrency Rate Advances is determined under
this Agreement for any Advance denominated in the Euro for any Interest Period
therefor, references in this Agreement to London Banking Days shall be deemed to
be references to Target Operating Days.
CONDITIONS TO EFFECTIVENESS
AND LENDING
SECTION 3.01 Condition Precedent to
Effectiveness. This Agreement shall become effective as of
the time of the delivery of all evidence referenced in clause (g) below on the
date (the “Effective
Date”), which shall be on or before June 30, 2010, as of which the
Administrative Agent shall confirm to the Company that it has received the
following, each dated such day, in form and substance satisfactory to the
Administrative Agent and (except for any Notes) in sufficient copies for each
Lender:
(a) Executed
Counterparts. From each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed
signature page to this Agreement) that such party has signed a counterpart of
this Agreement;
(b) Authority
and Approvals. Certified copies of the resolutions of the Board of
Directors of each of the Guarantors (or equivalent documents) authorizing and
approving this Agreement, the other Loan Documents to which it is a party and
the transactions contemplated hereby and thereby and certified copies of all
documents evidencing all necessary corporate action and all other necessary
action (corporate, partnership or otherwise) and governmental approvals, if any,
with respect to this Agreement and the other Loan Documents to which it is a
party;
(c) Secretary’s
or Assistant Secretary’s Certificate. A certificate of the Secretary
or an Assistant Secretary of each of the Guarantors, dated the Effective Date,
certifying the names and true signatures of the officers of such Guarantor
authorized to execute and deliver this Agreement, the Notes, and the other
documents to which it is a party and to be delivered hereunder;
(d) Legal
Opinions. An opinion of counsel to the Company and of the Subsidiary
Guarantor, respectively, dated the Effective Date, substantially in the form of
Exhibit C-1 and Exhibit C-2 hereto and an opinion of special New York counsel to
the Administrative Agent, dated the Effective Date, substantially in the form of
Exhibit C-3 hereto;
(e) Closing
Certificate. A certificate of a senior financial officer of the
Company, dated the Effective Date, certifying that the representations and
warranties set forth in Article IV are true on such date as if made on and as of
such date and that no Default has occurred and is continuing on such date;
and
(f) Fees
and Expenses. Evidence satisfactory to the Administrative Agent that
the Company shall have paid to the Administrative Agent for account of the
Lenders such up-front fees in connection with the execution of this Agreement as
the Company and the Administrative Agent shall have agreed upon.
(g) Acquisition
of The Black & Xxxxxx Corporation. Evidence satisfactory to the
Administrative Agent that Blue Xxx Acquisition Corp. shall have consummated the
merger with The Black & Xxxxxx Corporation that is contemplated by that
certain Agreement and Plan of Merger dated as of November 2, 2009 by and among
the Company, Blue Xxx Acquisition Corp., and The Black & Xxxxxx Corporation
, together with evidence that the commitments under the Five-Year Credit
Agreement dated as of December 7, 2007 among The Black & Xxxxxx Corporation,
Black & Xxxxxx Luxembourg Finance S.C.A. and Black & Xxxxxx Luxembourg
S.aR.L., as borrowers, certain lenders parties thereto and Citibank, N.A., as
administrative agent for said lenders (the “B&D Facility”) have been or
concurrently with the Effective Date are being terminated and all amounts
payable under the B&D Facility have been paid.
SECTION 3.02 Conditions Precedent to
Each Advance. The obligation of each Lender to make each
Advance (including the initial Advance) as part of a Borrowing shall be subject
to the further conditions precedent that (i) on the date of such Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the relevant Borrower of the proceeds
of such Advance shall constitute a representation and warranty by such Borrower
that on the date of such Advance the following statements shall be
true): (x) the representations and warranties contained in Section
4.01 (other than the Excluded Representation) and, to the extent applicable, in
the Designation Letter of such Borrower are correct in all material respects on
and as of the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date (it being understood and agreed that any representation or
warranty which expressly refers by its terms to a specified date shall be
required to be true and correct in all material respects only as of such date),
and (y) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that would
constitute an Event of Default, or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both; and (ii) in the
case of a requested Borrowing the proceeds of which are to be used to buy or
carry any Margin Stock, the Company shall deliver to the Administrative Agent a
certificate of a senior financial officer of the Company accompanying the
relevant Notice of Borrowing setting forth in reasonable detail the basis upon
which the Company has made the representation set forth in the third sentence of
Section 4.01(l) on and as of the date of such Borrowing, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom,
together with (if so requested by the Administrative Agent) a duly completed
Form U-1 or Form G-3 satisfactory to the Administrative Agent.
REPRESENTATIONS AND
WARRANTIES
SECTION 4.01 Representations and
Warranties of the Company. The Company represents and
warrants as follows:
(a) Corporate
Existence. The Company is a corporation duly organized and
validly existing under the laws of the State of Connecticut. The Subsidiary
Guarantor is a corporation duly organized and validly existing under the laws of
the State of Maryland.
(b) Corporate Authorization,
Etc. The execution, delivery and performance by each Guarantor
of this Agreement and the Notes to which it is a party are within such
Guarantor’s corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the charter or bylaws of such
Guarantor or (ii) any law or contractual restriction binding on or affecting the
Company or any of its Subsidiaries.
(c) No
Approvals. No authorization, approval or action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by either Guarantor of
this Agreement or the Notes to which it is a party.
(d) Enforceability. This
Agreement is and, upon issuance and delivery thereof in accordance with this
Agreement, each Note to which it is to be a party will be the legal, valid and
binding obligations of each Guarantor, enforceable against such Guarantor in
accordance with their respective terms.
(e) Financial
Information. The consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of January 2, 2010, and the related statements
of income and retained earnings of the Company and its Consolidated Subsidiaries
for the fiscal year then ended, copies of which have been furnished to the
Lenders, fairly present in all material respects the financial condition of the
Company and its Consolidated Subsidiaries as of such date and the results of the
operations of the Company and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with GAAP consistently applied.
(f) No
Litigation. Except as disclosed or otherwise reflected in (x)
the Company’s Annual Report on Form 10-K for the year ended January 2, 2010 or
(y) the Subsidiary Guarantor ‘s Annual Report on Form 10-K for the year ended
December 31, 2009, there is no pending or (to the best of the Company’s
knowledge) threatened action or proceeding against the Company or any of its
Subsidiaries or relating to any of their respective properties before any court,
governmental agency or arbitrator, which could reasonably be expected to have a
Material Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any Note.
(g) No Material Adverse
Effect. Since January 2, 2010, there has been no event, act or
condition which has had a Material Adverse Effect.
(h) Environmental
Matters. Except as disclosed or otherwise reflected in (x) the
Company’s Annual Report on Form 10-K for the year ended January 2, 2010 or (y)
the Subsidiary Guarantor’s Annual Report on
Form 10-K for the year ended December 31, 2009, neither the Company nor any of
its Subsidiaries has received notice or otherwise obtained knowledge of any
claim, demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which could reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect arising in
connection with (i) any non-compliance with or violation of the requirements of
any applicable federal, state or local environmental health or safety statutes
or regulations, or (ii) the release or threatened release of any toxic or
hazardous waste, substance or constituent into the environment.
(i) Investment
Company. Neither Guarantor is an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
(j) Disclosure. The
information furnished in writing by or on behalf of any Loan Party to the
Lenders in connection with the negotiation, execution and delivery of this
Agreement or any other Loan Document does not contain any material misstatements
of fact or omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
(k) No
Defaults. Neither Guarantor (i) is in default under or with
respect to this Agreement or any Note to which it is a party, and (ii) is in
default under or with respect to any other agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound in any
respect which could reasonably be expected to result in a Material Adverse
Effect.
(l) Use of Proceeds,
Etc. All proceeds of each Advance will be used by each
Borrower only in accordance with the provisions of Section 2.12. No
Borrower is or will be engaged in the business of extending credit for the
purpose of buying or carrying Margin Stock and no proceeds of any Advance will
be used to extend credit to others for the purpose of buying or carrying any
Margin Stock. Neither the making of any Advance nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
Regulations U or X issued by the Board of Governors of the Federal Reserve
System.
COVENANTS OF THE
COMPANY
SECTION 5.01 Affirmative
Covenants. So long as any Advance or any other amount
owing hereunder shall remain unpaid or any Lender shall have any Commitment
hereunder:
(a) Financial
Information. The Company will furnish to the Lenders:
(i) Quarterly Financial
Statements. Within 50 days after the close of each quarterly
accounting period in each fiscal year of the Company, the consolidated balance
sheet of the Company and its Consolidated Subsidiaries as at the end of such
quarterly period and the related consolidated and consolidating statements of
income, retained earnings and cash flows for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the related periods
in the prior fiscal year.
(ii) Annual Financial
Statements. Within 95 days after the close of each fiscal year
of the Company, the consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated statement of income, retained earnings and cash flows for such
fiscal year, setting forth comparative figures for the preceding fiscal year and
reported on without qualification by independent certified public accountants of
recognized national standing, in each case together with a report of such
accounting firm stating that in the course of its regular audit of the
consolidated financial statements of the Company, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge of any Default or Event of Default relating to accounting
matters (including, without limitation, in respect of Section 5.01(f)), or
if in the opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof.
(iii) Officer’s
Certificates. At the time of the delivery of the financial
statements under clauses (i) and (ii) above, a certificate of a senior financial
officer of the Company which certifies (x) that such financial statements fairly
present the financial condition and the results of operations of the Company and
its Consolidated Subsidiaries on the dates and for the periods indicated, and
(y) that such officer has reviewed the terms of this Agreement and has made, or
caused to be made under his or her supervision, a review in reasonable detail of
the business and condition of the Company and its Consolidated Subsidiaries
during the accounting period covered by such financial statements, and that as a
result of such review such officer has concluded that no Default or Event of
Default has occurred during the period commencing at the beginning of the
accounting period covered by the financial statements accompanied by such
certificate and ending on the date of such certificate or, if any Default or
Event of Default has occurred, specifying the nature and extent thereof and, if
continuing, the action the Company proposes to take in respect
thereof. Such certificate shall set forth the calculations required
to establish whether the Company was in compliance with the provisions of
Section 5.01(f) for the twelve-month period ending as at the end of the
accounting period covered by the financial statements accompanied by such
certificate.
(iv) Notice of Default or
Litigation. Promptly after any Loan Party obtains knowledge
thereof, notice of (i) the occurrence of any Default or Event of Default, or
(ii) any litigation or governmental proceeding pending or threatened
against any Loan Party or other event, act or condition which could reasonably
be expected to result in a Material Adverse Effect.
(v) SEC
Filings. Promptly upon transmission thereof, copies of all
regular and periodic financial information, proxy materials and other
information and reports, if any, which the Company shall file with the
Securities and Exchange Commission or any governmental agencies substituted
therefor or which the Company shall send to its stockholders.
(vi) Other
Information. From time to time, and as soon as reasonably
practicable, such other information or documents (financial or otherwise) as any
Lender through the Administrative Agent may from time to time reasonably
request.
Reports
and financial statements required to be delivered by the Company pursuant
clauses (i), (ii) and (v) of this Section 5.01 (a) shall be deemed to have been
delivered on the date on which it posts such reports, or reports containing such
financial statements, on its website on the Internet at xxx.xxxxxxxxxxxx.xxx,
or when such reports, or reports containing such financial statements are posted
on the website of the Securities and Exchange Commission at xxx.xxx.xxx; provided
that it shall deliver such paper copies of the reports and financial statements
referred to in Clauses (i), (ii) and (v) of this Section 5.01(a) to the
Administrative Agent or any Lender who request it to deliver such paper copies
until written notice to cease delivering paper copies is given by the
Administrative Agent or such Lender.
(b) Compliance
with Law. The Company shall, and shall cause each of its Subsidiaries
to, comply with all applicable laws, rules, statutes, regulations, decrees and
orders of all governmental bodies, domestic or foreign, in respect of the
conduct of their business and the ownership of their property, except such
non-compliance as could not reasonably be expected to result in a Material
Adverse Effect at the time of such noncompliance or in the foreseeable
future.
(c) Payment
of Taxes. The Company shall pay or cause to be paid, and shall cause
each of its Subsidiaries to pay or cause to be paid, when due, all taxes,
charges and assessments and all other lawful claims required to be paid by the
Company or such Subsidiaries, except (x) as contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves have been
established with respect thereto in accordance with GAAP and (y) where such
nonpayment could not reasonably be expected to result in a Material Adverse
Effect.
(d) Preservation
of Corporate Existence. Except as otherwise permitted by this
Agreement, the Company shall, and shall cause each of its Subsidiaries to, do
all things necessary to preserve, renew and keep in full force and effect its
corporate existence and the licenses, permits, rights and franchises necessary
to the proper conduct of its business, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries will engage in any business if, as a
result, the general nature of the business, taken on a consolidated basis, which
would then be engaged in by the Company and its Subsidiaries would be
substantially changed from the general nature of the business engaged in by the
Company and its Subsidiaries on the date of this Agreement.
(e) Maintenance
of Books and Records. The Company will maintain financial records in
accordance with GAAP, consistently applied. The representatives of
the Administrative Agent or any of the Lenders shall have the right to visit and
inspect any of the properties of the Company and of any of its Subsidiaries, to
examine their books of account and records and take notes and make transcripts
therefrom, and to discuss their affairs, finances and accounts with, and be
advised as to the same by, their officers upon reasonable prior notice
at such reasonable times and intervals as may be requested (subject
to the standard policies of the Company and its Subsidiaries as to access,
safety and, without prejudice to the reasonable requirements of lending
institutions and their regulatory supervisors, confidentiality).
(f) Interest
Coverage Ratio. The Company shall maintain, for each period of four
consecutive fiscal quarters of the Company, an Interest Coverage Ratio of not
less than 3.50 to 1.00.
SECTION 5.02 Negative
Covenants. So long as any Advance or any other amount
owing hereunder shall remain unpaid or any Lender shall have any Commitment
hereunder:
(a) No
Liens. The Company shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist, directly or
indirectly, any Lien on any Principal Property now owned or hereafter acquired
(unless the Company secures the Advances made hereunder equally and ratably with
such Lien), other than:
(i) Liens
existing and disclosed to the Lenders in writing prior to the date
hereof;
(ii) Liens
for taxes not yet due or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(iii) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate bonds have
been posted;
(iv) Liens
incurred or 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 tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(v) easements,
rights-of-way, zoning and similar restrictions and other similar charges or
encumbrances not interfering with the ordinary conduct of the business of the
Company or any of its Subsidiaries and which do not detract materially from the
value of the property to which they attach or impair materially the use thereof
by the Company or any of its Subsidiaries;
(vi) Liens
on property of any Person existing at the time such Person becomes a Subsidiary
of the Company and not created in contemplation thereof;
(vii) Liens
securing Indebtedness owed by a Subsidiary of the Company to the Company or
another Subsidiary of the Company;
(viii) any
Lien arising solely by operation of law in the ordinary course of business or
which is contained in a contract for the purchase or sale of goods or services
entered into in the ordinary course of business;
(ix) Liens
on any property existing at the time of acquisition but only if the amount of
outstanding Indebtedness secured thereby does not exceed the lesser of the fair
market value or the purchase price of the property as purchased;
(x) any
Lien securing the purchase price of revenues or assets purchased after the date
hereof or the cost of repairing or altering, constructing, developing or
substantially improving all or any part of such revenues or assets; provided that such
Lien attaches only to such revenues or assets (including any improvements) and
the Indebtedness thereby secured does not exceed the lesser of the fair market
value or the purchase price of the revenues or assets (including any
improvements) as purchased;
(xi) any
other Liens on Principal Properties securing Indebtedness which in the
aggregate, together with Attributable Debt, does not exceed 10% of Consolidated
Net Worth at any time outstanding; and
(xii) any
extension, renewal or replacement of any of the Liens referred to above; provided that the
Indebtedness secured by any such extension, renewal or replacement does not
exceed the sum of the principal amount of the Indebtedness originally secured
thereby and any fee incurred in connection with such transaction.
(b) Merger,
Etc. The Company shall not (i) enter into any merger or
consolidation, or liquidate, wind up or dissolve (or suffer any liquidation,
wind-up or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of its business or property, whether now or hereafter
acquired, or (ii) permit any of its Subsidiaries to do so, if such action could
reasonably be expected to have a Material Adverse Effect, except that (1) any
wholly-owned Subsidiary of the Company may merge into or convey, sell, lease or
transfer all or substantially all of its assets to, the Company or any other
wholly-owned Subsidiary of the Company and (2) the Company or any of its
Subsidiaries may enter into any merger or consolidation so long as in the case
of a transaction involving the Company, the Company, or in the case of any other
transaction, a Subsidiary of the Company, is the surviving entity in such
transaction and, after giving effect thereto, no Default or Event of Default
shall have occurred or be continuing.
(c) Sale-Leasebacks. The
Company shall not, and shall not permit any of its Subsidiaries to, become
liable, directly or indirectly, with respect to any lease, whether an operating
lease or a Capital Lease, of any property (whether real or personal or mixed)
whether now owned or hereafter acquired, (i) which the Company or such
Subsidiary has sold or transferred or is to sell or transfer to any other
Person, or (ii) which the Company or such Subsidiary intends to use for
substantially the same purposes as any other property which has been or is to be
sold or transferred by the Company or such Subsidiary to any other Person in
connection with such lease. Notwithstanding the foregoing, the
Company and its Subsidiaries shall be permitted to become liable with respect to
the leases described above so long as all Attributable Debt, together with the
Liens described in Section 5.02(a)(xi), does not exceed 10% of Consolidated Net
Worth at any time outstanding.
EVENTS OF
DEFAULT
SECTION 6.01 Events of
Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) Any
Borrower shall fail to pay when due (or, if any such failure is due solely to
technical or administrative difficulties relating to the transfer of such
amounts, within two Business Days after its due date) any principal of any
Advance; or any Borrower shall fail to pay when due any interest on any Advance,
any fee (other than the fees referenced in Section 2.03) or any other amount
payable by it hereunder or under any Note and five (5) days shall have elapsed
from the date such interest, fees or other amounts were due; or with respect to
the fees payable pursuant to Section 2.03, any Borrower shall fail to pay
any such fee when due and two Business Days shall have elapsed from the
Company’s receipt of notice of such nonpayment from the Administrative Agent or
any Lender; or
(b) Any
representation or warranty made by any Loan Party herein or pursuant to this
Agreement or any other Loan Document (including without limitation in any
certificate of such Loan Party delivered pursuant hereto) shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) The
Company or any other Loan Party, as applicable, shall fail to perform any term,
covenant or agreement contained in the first sentence of Section 2.07(b),
Section 5.01(a)(iv), 5.01(f) or 5.02 on its part to be performed or observed;
or
(d) Any
Loan Party shall fail to perform any term, covenant or agreement contained in
this Agreement (except those described in clauses (a) and (c) above) and such
failure shall continue for 30 days; or
(e) A
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of any Loan Party or any Principal Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or other similar official of such Loan Party or
such Principal Subsidiary or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days;
or
(f) Any
Loan Party or any Principal Subsidiary shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of any order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Loan Party or such Principal Subsidiary or for any
substantial part of its property, or shall make any general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action in furtherance of any of the foregoing;
or
(g) (A)
Any Loan Party or any Principal Subsidiary shall fail to make any payment in
respect of Indebtedness when due (whether by scheduled maturity, required
prepayment, acceleration or otherwise) if the aggregate amount of such payment
is $75,000,000 or more, or (B) any breach, default or event of default shall
occur and be continuing (and applicable grace and notice periods shall have
expired) under any agreement or indenture relating to any Indebtedness of such
Loan Party or such Principal Subsidiary in an aggregate amount of $75,000,000 or
more, and, except in the case of financial covenant defaults, the maturity of
any such Indebtedness has been accelerated in accordance with the terms thereof;
or
(h) (A)
Any Termination Event shall occur, or (B) any Plan shall have an unfunded
liability, which means the excess, if any, of a Plan’s benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan’s assets, determined in accordance with the assumptions used for funding
that Plan pursuant to Section 412 of the Internal Revenue Code for the
applicable plan year, or (C) the Company or any member of its ERISA Controlled
Group shall fail to pay when due an amount which it shall have become liable to
pay to the PBGC, any Plan or a trust established under Title IV of ERISA, or (D)
a condition shall exist by reason of which the PBGC would be entitled to obtain
a decree adjudicating that an ERISA Plan must be terminated or have a trustee
appointed to administer any ERISA Plan, or (E) the Company or a member of its
ERISA Controlled Group suffers a partial or complete withdrawal from a
Multiemployer Plan or is in “default” (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan, or (F) a proceeding
shall be instituted against the Company or any member of its ERISA Controlled
Group to enforce Section 515 of ERISA, or (G) any other event or condition shall
occur or exist with respect to any Plan, if such events, transactions or
conditions set forth in clauses (A) through (G) above could singly or in the
aggregate be reasonably expected to have a Material Adverse Effect;
or
(i) If
there shall remain in force, undischarged, unsatisfied and unstayed, for more
than 30 days, whether or not consecutive, any final judgment against the any
Loan Party or any Principal Subsidiary which, when added to any other
outstanding final judgments which remain undischarged, unsatisfied and unstayed
for more than 30 days against such Loan Party or any such Principal Subsidiary,
exceeds $75,000,000;
then, and
in any such event, the Administrative Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to the Company, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare all
Advances, the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon all Advances, the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by each Borrower; provided, however, that in the
case of any of the Events of Default specified in clauses (e) or (f) above with
respect to any Borrower, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Advances, the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
THE ADMINISTRATIVE
AGENT
SECTION 7.01 Appointment and
Authority. Each Lender hereby irrevocably appoints
Citibank to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of
this Article (other than the provisions of Section 7.07) are solely for the
benefit of the Administrative Agent and the Lenders, and neither the Company nor
any other Loan Party shall have rights as a third party beneficiary of any of
such provisions.
SECTION 7.02 Administrative Agent
Individually. (a) The Person serving as the
Administrative 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 the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Company or any Subsidiary or other Affiliate thereof as if such Person were not
the Administrative Agent hereunder and without any duty to account therefor to
the Lenders.
(b) Each
Lender understands that the Person serving as Administrative Agent, acting in
its individual capacity, and its Affiliates (collectively, the “Agent’s Group”)
are engaged in a wide range of financial services and businesses (including
investment management, financing, securities trading, corporate and investment
banking and research) (such services and businesses are collectively referred to
in this Section 7.02 as “Activities”) and may engage in the Activities with or
on behalf of one or more of the Loan Parties or their respective
Affiliates. Furthermore, the Agent’s Group may, in undertaking the
Activities, engage in trading in financial products or undertake other
investment businesses for its own account or on behalf of others (including the
Loan Parties and their Affiliates and including holding, for its own account or
on behalf of others, equity, debt and similar positions in the Company, another
Loan Party or their respective Affiliates), including trading in or holding
long, short or derivative positions in securities, loans or other financial
products of one or more of the Loan Parties or their Affiliates. Each
Lender understands and agrees that in engaging in the Activities, the Agent’s
Group may receive or otherwise obtain information concerning the Loan Parties or
their Affiliates (including information concerning the ability of the Loan
Parties to perform their respective Obligations hereunder and under the other
Loan Documents) which information may not be available to any of the Lenders
that are not members of the Agent’s Group. None of the Administrative
Agent or any member of the Agent’s Group shall have any duty to disclose to any
Lender or use on behalf of the Lenders, and shall not be liable for the failure
to so disclose or use, any information whatsoever about or derived from the
Activities or otherwise (including any information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to
account for any revenue or profits obtained in connection with the Activities,
except that the Administrative Agent shall deliver or otherwise make available
to each Lender such documents as are expressly required by any Loan Document to
be transmitted by the Administrative Agent to the Lenders.
(c) Each
Lender further understands that there may be situations where members of the
Agent’s Group or their respective customers (including the Loan Parties and
their Affiliates) either now have or may in the future have interests or take
actions that may conflict with the interests of any one or more of the Lenders
(including the interests of the Lenders hereunder and under the other Loan
Documents). Each Lender agrees that no member of the Agent’s Group is
or shall be required to restrict its activities as a result of the Person
serving as Administrative Agent being a member of the Agent’s Group, and that
each member of the Agent’s Group may undertake any Activities without further
consultation with or notification to any Lender. None of (i) this
Agreement or any other Loan Document, (ii) the receipt by the Agent’s Group of
information (including Information) concerning the Loan Parties or their
Affiliates (including information concerning the ability of the Loan Parties to
perform their respective Obligations hereunder and under the other Loan
Documents) or (iii) any other matter shall give rise to any fiduciary, equitable
or contractual duties (including without limitation any duty of trust or
confidence) owing by the Administrative Agent or any member of the Agent’s Group
to any Lender including any such duty that would prevent or restrict the Agent’s
Group from acting on behalf of customers (including the Loan Parties or their
Affiliates) or for its own account.
SECTION 7.03 Duties of Administrative
Agent; Exculpatory Provisions. (a) The
Administrative Agent’s duties hereunder and under the other Loan Documents are
solely ministerial and administrative in nature and the Administrative Agent
shall not have any duties or obligations except those expressly set forth herein
and in the other Loan Documents. Without limiting the generality of
the foregoing, the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, but shall be required
to act or refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the written direction of the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Administrative Agent or any of its
Affiliates to liability or that is contrary to any Loan Document or applicable
law.
(b) The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 8.01 or 8.03) or (ii) in the
absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default or
Event of Default or the event or events that give or may give rise to any
Default or Event of Default unless and until the Company or any Lender shall
have given notice to the Administrative Agent describing such Default or Event
of Default and such event or events.
(c) Neither
the Administrative Agent nor any member of the Agent’s Group shall be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty, representation or other information made or supplied in or
in connection with this Agreement, any other Loan Document or the Information
Memorandum, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith or the
adequacy, accuracy and/or completeness of the information contained therein,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other Loan Document or
(v) the satisfaction of any condition set forth in Article 3 or elsewhere
herein, other than (but subject to the foregoing clause (ii)) to confirm receipt
of items expressly required to be delivered to the Administrative
Agent.
(d) Nothing
in this Agreement or any other Loan Document shall require the Administrative
Agent or any of its Related Parties to carry out any “know your customer” or
other checks in relation to any Person on behalf of any Lender and each Lender
confirms to the Administrative Agent that it is solely responsible for any such
checks it is required to carry out and that it may not rely on any statement in
relation to such checks made by the Administrative Agent or any of its Related
Parties.
SECTION 7.04 Reliance by
Administrative Agent. The Administrative 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 (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The
Administrative Agent also may 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. In determining
compliance with any condition hereunder to the making of a Borrowing that by its
terms must be fulfilled to the satisfaction of a Lender, the Administrative
Agent may presume that such condition is satisfactory to such Lender unless an
officer of the Administrative Agent responsible for the transactions
contemplated hereby shall have received notice to the contrary from such Lender
prior to the making of such Loan, and such Lender shall not have made available
to the Administrative Agent such Lender’s ratable portion of such
Borrowing. The Administrative Agent may consult with legal counsel
(who may be counsel for the Company or any other Loan Party), 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.
SECTION 7.05 Indemnification. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed by the
Company), ratably according to the respective principal amounts of their
Commitments, as then or most recently in effect, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement and the Notes, or any action taken
or omitted by the Administrative Agent under this Agreement and the Notes,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found in a final, non-appealable judgment by
a court of competent jurisdiction to have resulted from the Administrative
Agent’s gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Company.
SECTION 7.06 Delegation of
Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. Each such sub-agent and the
Related Parties of the Administrative Agent and each such sub-agent shall be
entitled to the benefits of all provisions of this Article 7 and Section
8.04 (as though
such sub-agents were the “Administrative Agent” under the Loan Documents) as if
set forth in full herein with respect thereto.
SECTION 7.07 Resignation of
Administrative Agent. The Administrative Agent may at any
time give notice of its resignation to the Lenders and the
Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor, which shall be a bank with an office in New York, or an Affiliate of
any such bank with an office in New York, and which successor shall be
reasonably acceptable to the Company. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation (such 30-day period, the “Lender Appointment
Period”), then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent meeting the qualifications set
forth above. In addition and without any obligation on the part of
the retiring Administrative Agent to appoint, on behalf of the Lenders, a
successor Administrative Agent, the retiring Administrative Agent may at any
time upon or after the end of the Lender Appointment Period notify the Company
and the Lenders that no qualifying Person has accepted appointment as successor
Administrative Agent and the effective date of such retiring Administrative
Agent’s resignation. Upon the resignation effective date established
in such notice and regardless of whether a successor Administrative Agent has
been appointed and accepted such appointment, the retiring Administrative
Agent’s resignation shall nonetheless become effective and (i) the retiring
Administrative Agent shall be discharged from its duties and obligations as
Administrative Agent hereunder and under the other Loan Documents and
(ii) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this paragraph. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties as Administrative Agent of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations as Administrative Agent
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this paragraph). The fees payable by the Company
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such
successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and
Section 8.04 shall
continue in effect for the benefit of such retiring Administrative 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 the retiring Administrative Agent
was acting as Administrative Agent.
SECTION 7.08 Non-Reliance on
Administrative Agent and Other
Parties. (a) Each Lender confirms to the
Administrative Agent, each other Lender and each of their respective Related
Parties that it (i) possesses (individually or through its Related Parties) such
knowledge and experience in financial and business matters that it is capable,
without reliance on the Administrative Agent, any other Lender or any of their
respective Related Parties, of evaluating the merits and risks (including tax,
legal, regulatory, credit, accounting and other financial matters) of (x)
entering into this Agreement, (y) making Loans and other extensions of credit
hereunder and under the other Loan Documents and (z) taking or not taking
actions hereunder and thereunder, (ii) is financially able to bear such risks
and (iii) has determined that entering into this Agreement and making Loans and
other extensions of credit hereunder and under the other Loan Documents is
suitable and appropriate for it.
(b) Each
Lender acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with this Agreement and the other Loan Documents, (ii) it has,
independently and without reliance upon the Administrative Agent, any other
Lender or any of their respective Related Parties, made its own appraisal and
investigation of all risks associated with, and its own credit analysis and
decision to enter into, this Agreement based on such documents and information,
as it has deemed appropriate and (iii) it will, independently and without
reliance upon the Administrative Agent, any other Lender or any of their
respective Related Parties, continue to be solely responsible for making its own
appraisal and investigation of all risks arising under or in connection with,
and its own credit analysis and decision to take or not take action under, this
Agreement and the other Loan Documents based on such documents and information
as it shall from time to time deem appropriate, which may include, in each
case:
(i) the
financial condition, status and capitalization of the Company and each other
Loan Party;
(ii) the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Loan Document;
(iii) determining
compliance or non-compliance with any condition hereunder to the making of a
Loan and the form and substance of all evidence delivered in connection with
establishing the satisfaction of each such condition; and
(iv) the
adequacy, accuracy and/or completeness of the Information Memorandum and any
other information delivered by the Administrative Agent, any other Lender or by
any of their respective Related Parties under or in connection with this
Agreement or any other Loan Document, the transactions contemplated hereby and
thereby or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Loan
Document.
SECTION 7.09 No Other Duties,
Etc. Anything herein to the contrary notwithstanding, none
of the Persons acting as Bookrunners, Lead Arrangers or Syndication Agent listed
on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent or as a Lender hereunder.
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment
or waiver of any provision of this Agreement or any other Loan Document, nor
consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Company and the
relevant other Loan Party, if applicable, and the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that the written consent of the
Company and all the Lenders shall be required in order to amend or waive any
provision of the Agreement or the Notes which would have the effect of (a) a
reduction in principal, interest or fees payable to the Lenders under this
Agreement or the Notes, (b) the postponement of any date fixed for the payment
of any principal, interest or fees under this Agreement or the Notes, (c) an
increase in the Commitments, (d) amending or waiving compliance with the last
sentence of Section 2.01(a), Section 2.08, Section 8.05 or this Section 8.01,
(e) amending the definition of Required Lenders or (f) any release or
modification of any Guarantor’s guarantee under Article IX; and provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Administrative Agent under
this Agreement, and provided, further, that the Commitment of any Lender shall
not be extended without the prior written consent of such Lender.
SECTION 8.02 Notices, Communications and Treatment of
Information. (a) Notices. (i) All
notices, demands, requests, consents and other communications provided for in
this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows:
(1) if
to the Company or any other Loan Party,
Xxxxxxx Xxxxx & Xxxxxx,
Inc.
0000
Xxxxxxx Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention of:
Telecopier No.:
E-Mail Address:
(2) if
to the Administrative Agent
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of:
Telecopier No.:
E-Mail Address:
(3) if to any Lender, to it
at its address (or telecopier number) set forth in its Administrative
Questionnaire
or at
such other address as shall be notified in writing (x) in the case of the
Company and the Administrative Agent, to the other parties and (y) in the
case of all other parties, to the Company and the Administrative
Agent.
(ii) All
notices, demands, requests, consents and other communications described in
clause (i) shall be effective (1) if delivered by hand,
including any overnight courier service, upon personal delivery, (2) if
delivered by mail, when deposited in the mails, (3) if delivered by posting
to an Approved Electronic Platform, an Internet website or a similar
telecommunication device requiring that a user have prior access to such
Approved Electronic Platform, website or other device (to the extent permitted
by Section 8.02(b) to be delivered
thereunder), when such notice, demand, request, consent and other communication
shall have been made generally available on such Approved Electronic Platform,
Internet website or similar device to the class of Person being notified
(regardless of whether any such Person must accomplish, and whether or not any
such Person shall have accomplished, any action prior to obtaining access to
such items, including registration, disclosure of contact information,
compliance with a standard user agreement or undertaking a duty of
confidentiality) and such Person has been notified in respect of such posting
that a communication has been posted to the Approved Electronic Platform and
(4) if delivered by electronic mail or any other telecommunications device,
when transmitted to an electronic mail address (or by another means of
electronic delivery) as provided in clause (i); provided, however,
that notices and communications to the Administrative Agent pursuant to Article
7 shall not be effective until received by the Administrative
Agent.
(iii) Notwithstanding
clauses (i) and (ii) (unless the Administrative Agent requests that the
provisions of clause (i) and (ii) be followed) and any other provision in
this Agreement or any other Loan Document providing for the delivery of any
Approved Electronic Communication by any other means, the Loan Parties shall
deliver all Approved Electronic Communications to the Administrative Agent by
properly transmitting such Approved Electronic Communications in an
electronic/soft medium in a format acceptable to the Administrative Agent to
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or such other
electronic mail address (or similar means of electronic delivery) as the
Administrative Agent may notify to the Company. Nothing in this
clause (iii) shall prejudice the right of the Administrative Agent or any
Lender to deliver any Approved Electronic Communication to any Loan Party in any
manner authorized in this Agreement or to request that the Company effect
delivery in such manner.
(b) Posting
of Approved Electronic Communications. (i) Each of the
Lenders and each Loan Party agrees that the Administrative Agent may, but shall
not be obligated to, make the Approved Electronic Communications available to
the Lenders by posting such Approved Electronic Communications on IntraLinks™ or
a substantially similar electronic platform chosen by the Administrative Agent
to be its electronic transmission system (the “Approved Electronic
Platform”).
(ii) Although
the Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified by
the Administrative Agent from time to time (including, as of the Closing Date, a
dual firewall and a User ID/Password Authorization System) and the Approved
Electronic Platform is secured through a single-user-per-deal authorization
method whereby each user may access the Approved Electronic Platform only on a
deal-by-deal basis, each of the Lenders and each Loan Party acknowledges and
agrees that the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated
with such distribution. In consideration for the convenience and
other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby acknowledged,
each of the Lenders and each Loan Party hereby approves distribution of the
Approved Electronic Communications through the Approved Electronic Platform and
understands and assumes the risks of such distribution.
(c) (i) THE
APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE
PROVIDED “AS IS” AND “AS AVAILABLE”. NONE OF THE ADMINISTRATIVE AGENT
OR ANY OTHER MEMBER OF THE AGENT’S GROUP WARRANTS THE ACCURACY, ADEQUACY OR
COMPLETENESS OF THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS OR
OMISSIONS IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC
PLATFORM EXCEPT FOR ERRORS OR OMISSIONS CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE ADMINISTRATIVE AGENT OR ANY OTHER MEMBER OF THE
AGENT’S GROUP. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.
(ii) Each
of the Lenders and each Loan Party agrees that the Administrative Agent may, but
(except as may be required by applicable law) shall not be obligated to, store
the Approved Electronic Communications on the Approved Electronic Platform in
accordance with the Administrative Agent’s generally-applicable document
retention procedures and policies.
(d) Confidentiality. Each
of the Administrative Agent and the Lenders agree to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors and other representatives (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
purporting to have jurisdiction over it or its Affiliates (including any
self-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 or in connection with
assignments or pledges made in accordance with Section 8.08(c), (d) to any
other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or
prospective party and direct or indirect counterparty (or its managers,
administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives) to any swap, derivative or other transaction
under which payments are to be made by reference to the Company and its
obligations, this Agreement or payments hereunder, (iii) any rating agency, or
(iv) the CUSIP Service Bureau or any similar organization, (g) with the
consent of the Company or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Company.
For purposes of this Section, “Information” means
all information received from the Company or any of its Subsidiaries relating to
the Company or any of its Subsidiaries or any of their respective businesses,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the Company or any
of its Subsidiaries, provided that, in the
case of information received from the Company or any of its Subsidiaries after
the date hereof, 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 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 to its own confidential information.
(e) Treatment
of Information. (i) Certain of the Lenders may enter into
this Agreement and take or not take action hereunder or under the other Loan
Documents on the basis of information that does not contain material non-public
information with respect to any of the Loan Parties or their securities
(“Restricting Information”). Other Lenders may enter into this
Agreement and take or not take action hereunder or under the other Loan
Documents on the basis of information that may contain Restricting
Information. Each Lender acknowledges that United States federal and
state securities laws prohibit any person from purchasing or selling securities
on the basis of material, non-public information concerning the issuer of such
securities or, subject to certain limited exceptions, from communicating such
information to any other Person. Neither the Administrative Agent nor
any of its Related Parties shall, by making any Communications (including
Restricting Information) available to a Lender, by participating in any
conversations or other interactions with a Lender or otherwise, make or be
deemed to make any statement with regard to or otherwise warrant that any such
information or Communication does or does not contain Restricting Information
nor shall the Administrative Agent or any of its Related Parties be responsible
or liable in any way for any decision a Lender may make to limit or to not limit
its access to Restricting Information. In particular, none of the
Administrative Agent or any of its Related Parties (i) shall have, and the
Administrative Agent, on behalf of itself and each of its Related Parties,
hereby disclaims, any duty to ascertain or inquire as to whether or not a Lender
has or has not limited its access to Restricting Information, such Lender’s
policies or procedures regarding the safeguarding of material, nonpublic
information or such Lender’s compliance with applicable laws related thereto or
(ii) shall have, or incur, any liability to any Loan Party or Lender or any of
their respective Related Parties arising out of or relating to the
Administrative Agent or any of its Related Parties providing or not providing
Restricting Information to any Lender.
(ii) Each
Loan Party agrees that (i) all Communications it provides to the Administrative
Agent intended for delivery to the Lenders whether by posting to the Approved
Electronic Platform or otherwise shall be clearly and conspicuously marked
“PUBLIC” if such Communications do not contain Restricting Information which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof, (ii) by marking Communications “PUBLIC,” each Loan Party
shall be deemed to have authorized the Administrative Agent and the Lenders to
treat such Communications as either publicly available information or not
material information (although, in this latter case, such Communications may
contain sensitive business information and, therefore, remain subject to the
confidentiality undertakings of Section 8.02(c)) with respect to such Loan Party
or its securities for purposes of United States Federal and state securities
laws, (iii) all Communications marked “PUBLIC” may be delivered to all Lenders
and may be made available through a portion of the Approved Electronic Platform
designated “Public Side Information,” and (iv) the Administrative Agent shall be
entitled to treat any Communications that are not marked “PUBLIC” as Restricting
Information and may post such Communications to a portion of the Approved
Electronic Platform not designated “Public Side Information.” Neither
the Administrative Agent nor any of its Affiliates shall be responsible for any
statement or other designation by a Loan Party regarding whether a Communication
contains or does not contain material non-public information with respect to any
of the Loan Parties or their securities nor shall the Administrative Agent or
any of its Affiliates incur any liability to any Loan Party, any Lender or any
other Person for any action taken by the Administrative Agent or any of its
Affiliates based upon such statement or designation, including any action as a
result of which Restricting Information is provided to a Lender that may decide
not to take access to Restricting Information. Nothing in this clause
(ii) shall modify or limit a Lender’s obligations under Section 8.02(b) with
regard to Communications and the maintenance of the confidentiality of or other
treatment of Information.
(iii) Each
Lender acknowledges that circumstances may arise that require it to refer to
Communications that might contain Restricting
Information. Accordingly, each Lender agrees that it will nominate at
least one designee to receive Communications (including Restricting Information)
on its behalf and identify such designee (including such designee’s contact
information) on such Lender’s Administrative Questionnaire. Each
Lender agrees to notify the Administrative Agent from time to time of such
Lender’s designee’s e-mail address to which notice of the availability of
Restricting Information may be sent by electronic transmission.
(iv) Each
Lender acknowledges that Communications delivered hereunder and under the other
Loan Documents may contain Restricting Information and that such Communications
are available to all Lenders generally. Each Lender that elects not
to take access to Restricting Information does so voluntarily and, by such
election, acknowledges and agrees that the Administrative Agent and other
Lenders may have access to Restricting Information that is not available to such
electing Lender. None of the Administrative Agent or any Lender with
access to Restricting Information shall have any duty to disclose such
Restricting Information to such electing Lender or to use such Restricting
Information on behalf of such electing Lender, and shall not be liable for the
failure to so disclose or use, such Restricting Information.
(v) The
provisions of the foregoing clauses of this subsection (d) are designed to
assist the Administrative Agent, the Lenders and the Loan Parties, in complying
with their respective contractual obligations and applicable law in
circumstances where certain Lenders express a desire not to receive Restricting
Information notwithstanding that certain Communications hereunder or under the
other Loan Documents or other information provided to the Lenders hereunder or
thereunder may contain Restricting Information. Neither the
Administrative Agent nor any of its Related Parties warrants or makes any other
statement with respect to the adequacy of such provisions to achieve such
purpose nor does the Administrative Agent or any of its Related Parties warrant
or make any other statement to the effect that any Loan Party’s or Lender’s
adherence to such provisions will be sufficient to ensure compliance by such
Loan Party or Lender with its contractual obligations or its duties under
applicable law in respect of Restricting Information and each of the Lenders and
each Loan Party assumes the risks associated therewith.
SECTION 8.03 No Waiver; Remedies. No
failure on the part of any Lender or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 8.04 Costs and Expenses; Breakage
Indemnification. (a) The Company agrees to pay
on demand all reasonable costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses), of (i) the
Administrative Agent in connection with the negotiation, syndication, execution
and delivery of this Agreement, the other Loan Documents and the other documents
delivered hereunder and (ii) the Administrative Agent and each Lender in
connection with enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section
8.04(a).
(b) If
any payment, prepayment or conversion of any Eurocurrency Rate Advance is made
by the Company or a Designated Borrower, as applicable, to or for the account of
a Lender other than on the last day of the Interest Period for such Advance, as
a result of acceleration of the maturity of the Advances and the Notes pursuant
to Section 6.01 or for any other reason other than in connection with Section
2.02(c), such Borrower shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Advance.
(c) The
Company agrees to indemnify and hold harmless the Administrative Agent and each
Lender and each of their affiliates and their officers, directors, employees,
agents and advisors (each, an “Indemnified Party”) from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the actual or proposed use of the proceeds of
the Advances, including in connection with any acquisition or proposed
acquisition by the Company or any Subsidiary of the Company of another Person or
one or more businesses of another Person (whether by means of a stock purchase,
asset acquisition or otherwise), whether or not such investigation, litigation
or proceeding is brought by the Company, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct. The Company agrees not to assert any claim
against any Indemnified Party on any theory of liability, for consequential,
indirect, special or punitive damages arising out of or otherwise relating to
this Agreement or any of the transactions contemplated hereby or the actual or
proposed use of the proceeds of the Advances.
(d) Without
prejudice to the survival of any other agreement of the Loan Parties hereunder,
the agreements and obligations of the Loan Parties contained in
Sections 2.08, 2.10 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 8.05 Sharing of Payments,
Etc. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of the Advances owing to it (other than pursuant to
Section 2.02(d), 2.06, 2.08, 2.10 or 8.04(b)) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 8.05 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the Company
in the amount of such participation.
SECTION 8.06 Binding
Effect. This Agreement shall be binding upon and inure to
the benefit of the Company, the Subsidiary Guarantor, each Designated Borrower,
the Administrative Agent and the Lenders and their respective successors and
assigns, except that no Loan Party shall have the right to assign its rights or
obligations hereunder or under any Note or any interest herein or therein (other
than as permitted by Section 5.02(b)) without the prior written consent of the
Lenders.
SECTION 8.07 Assignments and
Participations. (a) Each Lender may assign to
one or more Persons (other than the Company or any of its Affiliates) all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, and the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) each such
assignment (other than assignment to an affiliate of such Lender) shall require
the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed, and which consent of the Company shall not be
required if an Event of Default exists, (ii) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement, (iii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender’s rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance
(which shall include the agreement of the assignee party to such assignment, for
the benefit of the Borrowers, to be bound by the terms and provisions of this
Agreement to the same extent as if it were an original party hereto), together
with any Note subject to such assignment and the assignor or assignee shall pay
to the Administrative Agent a processing and recordation fee of
$3,500. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (y) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and 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).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, 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 or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Loan
Party or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred to
in Section 4.01 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; (iv) such assignee will, independently and
without reliance upon the Administrative 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; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit D hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the
Company. In the case of any Lender that holds a Note, within five
Business Days after its receipt of such notice, the relevant Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in
simultaneous exchange for the surrendered Note a new Note to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit E. Such Assignment and Acceptance shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Person as a Lender and the resulting adjustment of the
Commitments, if any, arising from such assignment of Commitments to such
Person.
(d) The
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at its address referred to in Section 8.02 a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the “Register”). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each
Lender may sell participations to one or more banks or other financial
institutions, or other entities engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of credit in the
ordinary course of their business, in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Advances owing to it and the Note or Notes
held by it); provided that (i) such Lender’s obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged, (ii)
such Lender shall remain solely responsible to the Borrowers for the performance
of such obligations, (iii) the Loan Parties shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (iv) such participant’s right to consent to
any modification, waiver or release of any of the provisions of this Agreement
shall be limited to the right to consent to (A) any reduction in principal,
interest or fees payable to such Lender under this Agreement, (B) the
postponement of any date fixed for the payment of any principal, interest or
fees under this Agreement and (C) any amendments to the foregoing clauses (A)
and (B).
SECTION 8.08 Limitation on Assignments and
Participations. (a) Any Lender may, in
connection with any actual or proposed assignment or participation pursuant to
Section 8.07, disclose to the actual or proposed assignee or participant any
information relating to any Loan Party furnished to such Lender by or on behalf
of such Loan Party; provided that the actual or proposed assignee or participant
shall have agreed prior to any such disclosure to preserve the confidentiality
of any confidential information relating to such Loan Party received by it from
such Lender or such Loan Party.
(b) Notwithstanding
anything in Section 8.07 to the contrary, no Lender shall have the right to
assign its rights and obligations hereunder or any interest therein or to sell
participations to one or more banks or other financial institutions in all or a
portion of its rights hereunder or any interest therein where the result of such
assignment or participation would be reasonably expected to entitle the Lender
to claim additional amounts pursuant to Section 2.02(d), 2.06, 2.08, 2.10
or 8.04 or would otherwise result in an increase in a Borrower’s
obligations.
(c) Anything
in this Section 8.08 to the contrary notwithstanding, any Lender may assign and
pledge all or any portion of its rights to payment of the Advances owing to it
hereunder to any Federal Reserve Bank (and its transferees) as collateral
security (i) pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any applicable Operating Circular issued by such Federal
Reserve Bank or (ii) to any central bank having jurisdiction over such
Lender. No such assignment shall have the effect of releasing such
Lender from its obligations hereunder.
SECTION 8.09 Withholding. If any
Lender, or any Person that becomes a party to this Agreement pursuant to Section
8.07, is not incorporated under the laws of the United States of America or a
state thereof, such Person agrees that, prior to the first date on which any
payment is due to it hereunder, it will deliver to each of the Company and the
Administrative Agent (i) two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, certifying in each case that such Person is entitled to receive payments
under this Agreement, without deduction or withholding of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8BEN or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax. Each Person which delivers to
the Company a Form W-8BEN or W-8ECI pursuant to the preceding sentence further
undertakes to deliver to each of the Company and the Administrative Agent two
further copies of Form W-8BEN or W-8ECI, or successor applicable forms, or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Company and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Company or the Administrative Agent, certifying
in the case of a Form W-8BEN or W-8ECI that such Person is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Person from duly
completing and delivering any such form with respect to it and such Person
advises the Company and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax, and in the case of a Form W-8BEN, establishing an exemption from
United States backup withholding tax.
SECTION 8.10 Mitigation. In the
event that any Lender claims any amounts under Sections 2.02(d), 2.06, 2.08,
2.10 or 8.04(b), it shall use all reasonable efforts (consistent with its
internal policies and legal and regulatory restrictions) to take actions
(including, without limitation, changing the jurisdiction of its Applicable
Lending Office) so as to eliminate such additional amounts; provided that such
Lender shall not be required to take any action if, in its reasonable judgment,
such action would be materially disadvantageous to it.
SECTION 8.11 Governing Law; Waiver of Jury
Trial. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12 Execution in
Counterparts. This Agreement may be executed in any number
of counterparts each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
(a) Submission
to Jurisdiction. Each Loan Party hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement and the
Notes.
(b) Service
of Process. Each Designated Borrower agrees that service of process
in any action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to CT Corporation System (the “Process Agent”) as
agent for such Designated Borrower in New York, New York for service of process
at its address at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other address of which the Administrative Agent shall have been
notified in writing by such Designated Borrower; provided that, if the Process
Agent ceases to act as such Designated Borrower’s agent for service of process,
such Designated Borrower will, by an instrument reasonably satisfactory to the
Administrative Agent, appoint another Person (subject to the approval of the
Administrative Agent) in the Borough of Manhattan, New York, New York to
act as such Designated Borrower’s agent for service of process. Each
other party hereto irrevocably consents to service of process in the manner
provided for notices in Section 8.02. Nothing in this Agreement
will affect the right of any party hereto to serve process in any other manner
permitted by applicable law.
(c) Waiver
of Venue. Each Loan Party irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and a claim that
such proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 8.14 Judgment Currency. This is an
international loan transaction in which the specification of Dollars or an
Alternate Currency, as the case may be (the “Specified Currency”),
and any payment in New York City or the country of the Specified Currency, as
the case may be (the “Specified Place”), is
of the essence, and, except as otherwise provided in this Agreement, the
Specified Currency shall be the currency of account in all events relating to
Advances denominated in the Specified Currency. Except as otherwise
provided in this Agreement, the payment obligations of the Designated Borrowers
under this Agreement and the other Loan Documents shall not be discharged by an
amount paid in another currency or in another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on conversion to
the Specified Currency and transfer to the Specified Place under normal banking
procedures does not yield the amount of the Specified Currency at the Specified
Place due hereunder. If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in the Specified Currency
into another currency (the “Second Currency”),
the rate of exchange which shall be applied shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the
Specified Currency with the Second Currency on the Business Day next preceding
that on which such judgment is rendered. The obligation of each
Designated Borrower in respect of any such sum due from it to the Administrative
Agent or any Lender in respect of any judgment in any court shall,
notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Lender, as the case may be, of any
sum adjudged to be due hereunder or under the Notes in the Second Currency to
the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be due;
and the Company hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify the Administrative Agent or such Lender, as the
case may be, against, and to pay the Administrative Agent or such Lender, as the
case may be, on demand in the Specified Currency, any difference between the sum
originally due to the Administrative Agent or such Lender, as the case may be,
for such judgment in the Specified Currency and the amount of the Specified
Currency so purchased and transferred.
SECTION 8.15 USA PATRIOT Act. Each Lender
hereby notifies each Loan Party that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it
is required to obtain, verify and record information that identifies the Loan
Parties, which information includes the name and address of the Borrowers and
other information that will allow such Lender to identify the Loan Parties in
accordance with the Act.
SECTION 8.16 No Fiduciary Duty. The
Administrative Agent, each Lender and their Affiliates (collectively, solely for
purposes of this paragraph, the “Lenders”), may have
economic interests that conflict with those of the Loan Parties. Each of
the Loan Parties agrees that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between the Lenders and any Loan Party, its stockholders or
its affiliates. Each of the Loan Parties acknowledge and agree that (i)
the transactions contemplated by the Loan Documents are arm’s-length commercial
transactions between the Lenders, on the one hand, and each of the Loan Parties,
on the other, (ii) in connection therewith and with the process leading to such
transaction each of the Lenders is acting solely as a principal and not the
agent or fiduciary of any Loan Party, its management, stockholders, creditors or
any other person, (iii) no Lender has assumed an advisory or fiduciary
responsibility in favor of any Loan Party with respect to the transactions
contemplated hereby or the process leading thereto (irrespective of whether any
Lender or any of its affiliates has advised or is currently advising any Loan
Party on other matters) or any other obligation to any Loan Party except the
obligations expressly set forth in the Loan Documents and (iv) each of the Loan
Parties has consulted its own legal and financial advisors to the extent it
deemed appropriate. Each of the Loan Parties further acknowledges and
agrees that it is responsible for making its own independent judgment with
respect to such transactions and the process leading thereto. Each of the
Loan Parties agree that it will not claim that any Lender has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to any
Loan Party, in connection with such transaction or the process leading
thereto.
GUARANTEE
SECTION 9.01 Guarantee; Limitation of
Liability. (a) To induce the other parties to enter
into this Agreement and for other valuable consideration, receipt of which is
hereby acknowledged, each of the Guarantors, jointly and severally, hereby
unconditionally and irrevocably guarantees to the Administrative Agent, each
Lender and their respective successors and permitted assigns the prompt payment
in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Advances to and the
Notes of each other Loan Party and all other amounts whatsoever now or hereafter
payable or becoming payable by each other Loan Party under this Agreement and
each other Loan Document, in each case strictly in accordance with the terms
thereof (collectively, the “Guaranteed
Obligations”). Each Guarantor hereby further agrees that if
any other Loan Party shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations,
such Guarantor will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal. This
Section 9.01 is a continuing guarantee and is a guarantee of payment and is
not merely a guarantee of collection and shall apply to all Guaranteed
Obligations whenever arising.
(b) Each
Guarantor, and by its acceptance of this Article IX, the Administrative
Agent and each Lender, hereby confirms that it is the intention of all such
Persons that this Article IX and the obligations of each Guarantor
hereunder not constitute a fraudulent transfer or conveyance for purposes of any
bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar foreign, federal or state law to the extent
applicable to this guarantee and the obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative
Agent, the Lenders and the Guarantors hereby irrevocably agree that the
obligations of the Subsidiary Guarantor under this Article IX at any time
shall be limited to the maximum amount as will result in the obligations of such
Guarantor under this Article IX not constituting a fraudulent transfer or
conveyance.
(c) Each
Guarantor hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to the Administrative Agent or any Lender
under this Article IX or any other guarantee, such Guarantor will
contribute, to the maximum extent permitted by law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid
to the Administrative Agent and the Lenders under or in respect of the Loan
Documents.
SECTION 9.02 Acknowledgments, Waivers and
Consents. Each Guarantor agrees that its obligations under
Section 9.01 shall be primary, absolute, irrevocable and unconditional
under any and all circumstances and that the guarantee therein is made with
respect to any Guaranteed Obligations now existing or in the future
arising. Without limiting the foregoing, each Guarantor agrees
that:
(a) The
occurrence of any one or more of the following shall not affect the
enforceability or effectiveness of this Article IX in accordance with its
terms or affect, limit, reduce, discharge or terminate the liability of such
Guarantor, or the rights, remedies, powers and privileges of the Administrative
Agent or any Lender, under this Article IX:
(i) any modification or
amendment (including by way of amendment, extension, renewal or waiver), or any
acceleration or other change in the time for payment or performance of the terms
of all or any part of the Guaranteed Obligations or any Loan Document, or any
other agreement or instrument whatsoever relating thereto, or any modification
of the Commitments;
(ii) any
release, termination, waiver, abandonment, lapse or expiration, subordination or
enforcement of the liability of any other guarantee of all or any part of the
Guaranteed Obligations;
(iii) any
application of the proceeds of any other guarantee (including the obligations of
any other guarantor of all or any part of the Guaranteed Obligations) to
all or any part of the Guaranteed Obligations in any such manner and to such
extent as the Administrative Agent may determine;
(iv) any
release of any other Person (including any other guarantor with respect to all
or any part of the Guaranteed Obligations) from any personal liability with
respect to all or any part of the Guaranteed Obligations;
(v) any
settlement, compromise, release, liquidation or enforcement, upon such terms and
in such manner as the Administrative Agent may determine or as applicable law
may dictate, of all or any part of the Guaranteed Obligations or any other
guarantee of (including any letter of credit issued with respect to) all or
any part of the Guaranteed Obligations;
(vi) the
giving of any consent to the merger or consolidation of, the sale of substantial
assets by, or other restructuring or termination of the corporate existence of,
any other Loan Party or any other Person or any disposition of any shares of any
Loan Party;
(vii) any
proceeding against any other Loan Party or any other guarantor of all or any
part of the Guaranteed Obligations or any collateral provided by any other
Person or the exercise of any rights, remedies, powers and privileges of the
Administrative Agent and the Lenders under the Loan Documents or otherwise in
such order and such manner as the Administrative Agent may determine, regardless
of whether the Administrative Agent or the Lenders shall have proceeded against
or exhausted any collateral, right, remedy, power or privilege before proceeding
to call upon or otherwise enforce this Article IX;
(viii) the
entering into such other transactions or business dealings with any other Loan
Party, any Subsidiary or affiliate thereof or any other guarantor of all or any
part of the Guaranteed Obligations as the Administrative Agent or any Lender may
desire; or
(ix) all
or any combination of any of the actions set forth in this
Section 9.02(a).
(b) The
enforceability and effectiveness of this Article IX and the liability of
such Guarantor, and the rights, remedies, powers and privileges of the
Administrative Agent and the Lenders, under this Article IX shall not be
affected, limited, reduced, discharged or terminated, and each Guarantor hereby
expressly waives to the fullest extent permitted by law any defense now or in
the future arising, by reason of:
(i) the
illegality, invalidity or unenforceability of all or any part of the Guaranteed
Obligations, any Loan Document or any other agreement or instrument whatsoever
relating to all or any part of the Guaranteed Obligations;
(ii) any
disability or other defense with respect to all or any part of the Guaranteed
Obligations, including the effect of any statute of limitations that may bar the
enforcement of all or any part of the Guaranteed Obligations or the obligations
of any other guarantor of all or any part of the Guaranteed
Obligations;
(iii) the
illegality, invalidity or unenforceability of any security for or other
guarantee (including any letter of credit) of all or any part of the
Guaranteed Obligations or the lack of perfection or continuing perfection or
failure of the priority of any Lien on any collateral for all or any part of the
Guaranteed Obligations;
(iv) the
cessation, for any cause whatsoever, of the liability of any other Loan Party or
any other guarantor with respect to all or any part of the Guaranteed
Obligations (other than, subject to Section 9.03, by reason of the full
payment of all Guaranteed Obligations);
(v) any
failure of the Administrative Agent or any Lender to marshal assets in favor of
any other Loan Party or any other Person (including any other guarantor of all
or any part of the Guaranteed Obligations), to exhaust any collateral for all or
any part of the Guaranteed Obligations, to pursue or exhaust any right, remedy,
power or privilege it may have against such other Loan Party or any other
guarantor of all or any part of the Guaranteed Obligations or any other Person
or to take any action whatsoever to mitigate or reduce such or any other
Person’s liability, the Administrative Agent and the Lenders being under no
obligation to take any such action notwithstanding the fact that all or any part
of the Guaranteed Obligations may be due and payable and that such other Loan
Party may be in default of its obligations under any Loan Document;
(vi) any
counterclaim, set-off or other claim which any other Loan Party or any other
guarantor of all or any part of the Guaranteed Obligations has or claims with
respect to all or any part of the Guaranteed Obligations, or any counterclaim,
set-off or other claim which such Guarantor may have with respect to all or any
part of any obligations owed to such Guarantor by the Administrative Agent or
any Lender (other than, without prejudice to Section 9.03, any counterclaim
or other claim that the amount of such Guaranteed Obligation which is being
claimed has been finally paid in full);
(vii) any
failure of the Administrative Agent or any Lender or any other Person to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person;
(viii) any
bankruptcy, insolvency, reorganization, winding-up or adjustment of debts, or
appointment of a custodian, liquidator or the like of it, or similar proceedings
commenced by or against any Person, including any discharge of, or bar or stay
against collecting, all or any part of the Guaranteed Obligations (or any
interest on all or any part of the Guaranteed Obligations) in or as a
result of any such proceeding;
(ix) any
action taken by the Administrative Agent or any Lender that is authorized under
this Article IX or by any other provision of any Loan Document or any
omission to take any such action;
(x) any
law, regulation, decree or order of any jurisdiction or Governmental Authority
or any event affecting any term of the Guaranteed Obligations; or
(xi) any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
(c) To
the fullest extent permitted by law, each Guarantor expressly waives, for
the benefit of the Administrative Agent and the Lenders, all diligence,
presentment, demand for payment or performance, notices of nonpayment or
nonperformance, protest, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever, and any requirement that
the Administrative Agent or any Lender exhaust any right, power or remedy or
proceed against any other Loan Party under any Loan Document or other agreement
or instrument referred to herein or therein, or against any other Person under
any other guarantee of, or security for, any of the Guaranteed Obligations, and
all notices of acceptance of this Article IX or of the existence, creation,
incurring or assumption of new or additional Guaranteed
Obligations.
SECTION 9.03 Reinstatement. The
obligations of each Guarantor under this Article IX shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any other Loan Party in respect of the Guaranteed Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any
Lender, whether as a result of insolvency, any proceedings in bankruptcy,
dissolution, liquidation or reorganization or otherwise.
SECTION 9.04 Subrogation. Each Guarantor
hereby agrees that, until the final payment in full of all Guaranteed
Obligations, it shall not exercise any right or remedy arising by reason of any
performance by it of its guarantee in Section 9.01, whether by subrogation,
reimbursement, contribution or otherwise, against any other Loan Party or any
other guarantor of any of the Guaranteed Obligations or any security for any of
the Guaranteed Obligations.
SECTION 9.05 Remedies. Each
Guarantor agrees that, as between such Guarantor and the Administrative Agent
and the Lenders, the obligations of any other Loan Party under this Agreement or
any other Loan Documents may be declared to be forthwith due and payable as
provided in Section 6.01 (and shall be deemed to have become automatically
due and payable in the circumstances provided in said
Section 6.01) for purposes of Section 9.01, notwithstanding any
stay, injunction or other prohibition preventing such declaration (or such
obligations from becoming automatically due and payable) as against such
other Loan Party and that, in the event of such declaration (or such obligations
being deemed to have become automatically due and payable), such obligations
(whether or not due and payable by such other Loan Party) shall forthwith
become due and payable by such Guarantor for purposes of
Section 9.01.
SECTION 9.06 Payments. Each payment
by any Guarantor under this Article IX shall be made in accordance with
Section 2.09 in the Currency in which the Guaranteed Obligations in respect
of which such payment is made in respect of are denominated, without deduction,
set-off or counterclaim at the Administrative Agent’s Account and free and clear
of any and all present and future Taxes.
[remainder
of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their respective signatories
thereunto duly authorized, as of the date first above written.
|
XXXXXXX
XXXXX & XXXXXX, INC.
|
|||
|
|
By
|
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | |||
| Title: VP & Treasurer | |||
|
THE
BLACK & XXXXXX CORPORATION, as Subsidiary Guarantor
|
|||
|
|
By
|
/s/ Xxxx Xxxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxxx | |||
| Title: Assistant Treasurer | |||
|
CITIBANK,
N.A.,
as Administrative Agent and as Lender
|
|||
|
|
By
|
/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
LENDERS
|
BANK
OF AMERICA, N.A.
|
|||
|
|
By
|
/s/ Xxxxxxx X. XxXxxxxxxx | |
| Name: Xxxxxxx X. XxXxxxxxxx | |||
| Title: SVP | |||
|
X.X. XXXXXX XXXXX BANK,
N.A.
|
|||
|
|
By
|
/s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | |||
| Title: Vice President | |||
|
BARCLAYS BANK
PLC
|
|||
|
|
By
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Director | |||
|
BNP
PARIBAS
|
|||
|
|
By
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Managing Director | |||
| By | /s/ Fik Durmus | ||
| Name: Fik Durmus | |||
| Title: Director | |||
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | |||
|
|
By:
|
/s/ Xxxx X. Toronto | |
| Name: Xxxx X. Toronto | |||
| Title: Director | |||
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: Xxxxx Xxxxxx | |||
| Title: Associate | |||
|
XXXXXXX
SACHS BANK USA
|
|||
|
|
By
|
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: Authorized Signatory | |||
| UBS LOAN FINANCE LLC | |||
|
|
By:
|
/s/ Xxxx X. Xxxx | |
| Name: Xxxx X. Xxxx | |||
| Title: Associate Director | |||
| By: | /s/ Xxxx X. Xxxxx | ||
| Name: Xxxx X. Xxxxx | |||
| Title: Associate Director | |||
|
THE BANK OF NEW YORK
MELLON
|
|||
|
|
By
|
/s/ Xxxxxx X. Xxxxxxx, Xx. | |
| Name: Xxxxxx X. Xxxxxxx, Xx. | |||
| Title: Managing Director | |||
|
HSBC BANK USA, NATIONAL
ASSOCIATION
|
|||
|
|
By
|
/s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | |||
| Title: Vice President, Relationship Manager | |||
|
XXXXXX XXXXXXX BANK,
N.A.
|
|||
|
|
By
|
/s/ Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxx | |||
| Title: Authorized Signatory | |||
|
THE BANK OF TOKYO-MITSUBISHI
UFJ, LTD.
|
|||
|
|
By
|
/s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Authorized Signatory | |||
| ING BANK N.V., DUBLIN BRANCH | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: Vice President | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: Xxxxx Xxxxx | |||
| Title: Director | |||
|
ROYAL
BANK OF CANADA
|
|||
|
|
By
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Authorized Signatory | |||
|
THE
BANK OF NOVA SCOTIA
|
|||
|
|
By
|
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: Managing Director | |||
| COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx, Xx. | |
| Name: Xxxxxx X. Xxxxxx, Xx. | |||
| Title: Senior Vice President | |||
| By: | /s/ Xxxxx Xxx | ||
| Name: Xxxxx Xxx | |||
| Title: Assistant Treasurer | |||
|
THE
NORTHERN TRUST COMPANY
|
|||
|
|
By
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Vice President | |||
|
RBS
CITIZENS, N.A.
|
|||
|
|
By
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Senior Vice President | |||
|
MIZUHO
CORPORATE BANK (USA)
|
|||
|
|
By
|
/s/ Xxxxx Xxx | |
| Name: Xxxxx Xxx | |||
| Title: Senior Vice Presiden | |||
|
PNC
BANK, NATIONAL ASSOCIATION
|
|||
|
|
By
|
/s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
| INTESA SANPAOLO SPA | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxxx | |
| Name: Xxxx X. Xxxxxxxxxx | |||
| Title: First Vice President | |||
| By: | /s/ Francesco Di Mario | ||
| Name: Francesco Di Mario | |||
| Title: First Vice President & Credit Manager | |||
| SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxx | |||
| Title: Global Head of Acquisition Finance | |||
| By: | /s/ Xxxxxx Xxxxx | ||
| Name: Xxxxxx Xxxxx | |||
|
SOCIETE
GENERALE
|
|||
|
|
By
|
/s/ Xxxx X.X.Xxxxxxx, Xx. | |
| Name: Xxxx X.X.Xxxxxxx, Xx. | |||
| Title: Managing Director | |||
| STANDARD CHARTERED BANK | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Director | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxxxxx | |||
| Title: AVP/Credit Documentation Credit Risk Control | |||
ADDRESS
AND APPLICABLE LENDING OFFICES
|
Name
of Lenders and Addresses
For
Notices
|
Domestic
Lending Office
|
Eurocurrency
Lending Office
|
|
Citibank,
N.A.
Building
#3
0000
Xxxxx Xx
Xxx
Xxxxxx, XX 00000
Attn: Bank Loan
Syndications
Fax
000-000-0000
|
Citibank,
N.A.
Building
#3
0000
Xxxxx Xx
Xxx
Xxxxxx, XX 00000
Attn: Bank Loan
Syndications
Fax
000-000-0000
|
Citibank,
N.A.
Building
#3
0000
Xxxxx Xx
Xxx
Xxxxxx, XX 00000
Attn: Bank Loan
Syndications
Fax
000-000-0000
|
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxx
XxXxxxxxxx
Tel:
(000) 000.0000
Fax:
(000) 000.0000
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxx
XxXxxxxxxx
Tel:
(000) 000.0000
Fax:
(000) 000.0000
|
Bank
of America, N.A.
000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxx
XxXxxxxxxx
Tel:
(000) 000.0000
Fax:
(000) 000.0000
|
SCHEDULE
I (cont’d)
LENDERS
AND COMMITMENTS
|
Lenders
|
Commitment
|
|||
|
Citibank,
N.A.
|
$ | 40,000,000 | ||
|
Bank
of America, N.A.
|
$ | 5,000,000 | ||
|
XX
Xxxxxx Chase Bank, N.A.
|
55,000,000 | |||
|
Barclays
Bank PLC
|
50,000,000 | |||
|
BNP
Paribas
|
35,000,000 | |||
|
Credit
Suisse AG
|
100,000,000 | |||
|
Xxxxxxx
Xxxxx Bank USA
|
50,000,000 | |||
|
UBS
Loan Finance LLC
|
35,000,000 | |||
|
Xxxxx
Fargo Bank N.A.
|
100,000,000 | |||
|
The
Bank of New York Mellon
|
10,000,000 | |||
|
HSBC
Bank USA, National Association
|
10,000,000 | |||
|
Xxxxxx
Xxxxxxx Bank, N.A. (Xxxxxx Xxxxxxx MUFG Loan Partners,
LLC)
|
10,000,000 | |||
|
The
Bank of Tokyo-Mitsubishi UFJ, Ltd. (Xxxxxx Xxxxxxx MUFG Loan Partners,
LLC)
|
40,000,000 | |||
|
ING
Bank N.V., Dublin Branch
|
40,000,000 | |||
|
Royal
Bank of Canada
|
5,000,000 | |||
|
The
Bank of Nova Scotia
|
30,000,000 | |||
|
Commerzbank
AG, New York and Grand Cayman Branches
|
30,000,000 | |||
|
The
Northern Trust Company
|
5,000,000 | |||
|
RBS
Citizens, N.A.
|
30,000,000 | |||
|
Mizuho
Corporate Bank (USA)
|
20,000,000 | |||
|
PNC
Bank, National Association
|
20,000,000 | |||
|
Intesa
Sanpaolo S.p.A.
|
20,000,000 | |||
|
Skandinaviska
Enskilda Xxxxxx XX
|
20,000,000 | |||
|
Societe
Generale
|
20,000,000 | |||
|
Standard
Chartered Bank
|
20,000,000 | |||
|
TOTAL
|
$ | 700,000,000 | ||
MANDATORY
COST RATE
Calculation
of Mandatory Cost Rate
|
1.
|
The
MCR Cost is an addition to the interest rate to compensate Lenders for the
cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements of the
European Central Bank.
|
|
2.
|
On
the first day of each Interest Period for any Advance denominated in
Pounds Sterling or Euros (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the
“Additional Cost
Rate”) for each Lender participating in such Advance, in accordance
with the paragraphs set out below. The MCR Cost will be
calculated by the Administrative Agent as a weighted average of such
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each such Lender in the relevant Advance) and will be
expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from an Applicable Lending
Office in a Participating Member State (as defined in Section 2.15) will
be the percentage notified by that Lender to the Administrative
Agent. This percentage will be certified by that Lender in its
notice to the Administrative Agent to be its reasonable determination of
the cost (expressed as a percentage of that Lender’s participation in all
Advances made from that Applicable Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of
loans made from that Applicable Lending
Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from an Applicable Lending
Office in the United Kingdom will be calculated by the Administrative
Agent as follows:
|
|
(a)
|
in
relation to an Advance made in Pounds
Sterling:
|
|
AB + C(B – D) + E ×
0.01
|
per cent. per annum
|
|
100
– (A +
C)
|
|
|
(b)
|
in
relation to a Advance made in any Alternate Currency other than Pounds
Sterling:
|
|
E ×
0.01
|
per cent. per annum
|
|
300
|
Where:
|
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which such Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio
requirements.
|
|
|
B
|
is
the percentage rate of interest (excluding the Applicable Margin and the
MCR Cost and, if applicable, any additional amount of interest specified
in Section 2.07(b)) payable for the relevant Interest Period on the
Advance.
|
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which such Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special
Deposits.
|
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Administrative Agent as being the average of the
most recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in Pounds Sterling per
£1,000,000;
|
5. For
the purposes of this Schedule:
|
|
(a)
|
“Eligible
Liabilities” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England.
|
|
|
(b)
|
“Fees Rules”
means the rules on periodic fees contained in the FSA Supervision Manual
or such other law or regulation as may be in force from time to time in
respect of the payment of fees for the acceptance of
deposits.
|
|
|
(c)
|
“Fee Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount
rate).
|
|
|
(d)
|
“Special
Deposits” has the meaning given to it from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England.
|
|
|
(e)
|
“Tariff Base”
has the meaning given to it in, and will be calculated in accordance with,
the Fees Rules.
|
|
6.
|
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal
places.
|
|
7.
|
If
requested by the Administrative Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority,
supply to the Administrative Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that
financial year) and expressed in Pounds Sterling per £1,000,000 of the
Tariff Base of that Reference Bank.
|
|
8.
|
Each
Lender shall supply any information required by the Administrative Agent
for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a
Lender:
|
(a) the
jurisdiction of its Applicable Lending Office; and
(b) any
other information that the Agent may reasonably require for such
purpose.
Each
Lender shall promptly notify the Administrative Agent of any change to the
information provided by it pursuant to this paragraph.
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Administrative Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Administrative Agent to the contrary, each
Lender’s obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of
incorporation with an Applicable Lending Office in the same jurisdiction
as its Applicable Lending Office.
|
|
10.
|
The
Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all
respects.
|
|
11.
|
The
Administrative Agent shall distribute the additional amounts received as a
result of the MCR to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
12.
|
Any
determination by the Administrative Agent pursuant to this
Schedule II in relation to a formula, the MCR, an Additional Cost
Rate or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
|
13.
|
The
Administrative Agent may from time to time, after consultation with the
Company and the Lenders, determine and provide notice to the Company and
the Lenders of any amendments which are required to be made to this
Schedule II in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any
case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be
conclusive and binding on all parties to the Credit
Agreement.
|
DESIGNATED BORROWER
JURISDICTIONS
United
Kingdom
Belgium
RATE
REQUEST
Citibank,
N.A., as Reference Bank
under the Credit Agreement
referred to below
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
[________]
[Date]
Ladies
and Gentlemen:
The undersigned, Xxxxxxx Xxxxx &
Xxxxxx, Inc., refers to the 364-Day Credit Agreement, dated as of March [12],
2010 (as amended, modified or supplemented from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined) among the
undersigned, The Black & Xxxxxx Corporation, certain Lenders parties
thereto, and Citibank, N.A., as Administrative Agent for said Lenders and hereby
requests notification from you pursuant to Section 2.02(a) thereof of the
Eurocurrency Rate which is applicable to the Advance to be made (or converted or
continued) on
, 20 in the
principal amount of [$____] [€____] [£____] with the Interest Period of
months.
|
Very
truly yours,
Xxxxxxx
Xxxxx & Xxxxxx, Inc.
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
________________________
TO BE
COMPLETED AND RETURNED BY
REFERENCE BANK:
The rate
requested above,
determined
as required by
the
Credit Agreement, is
.
|
CITIBANK,
N.A., as Reference Bank
|
|||
|
|
By
|
||
| Authorized Officer | |||
NOTICE OF
BORROWING
Citibank,
N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
[________]
[Date]
Ladies
and Gentlemen:
The undersigned, Xxxxxxx Xxxxx &
Xxxxxx, Inc., refers to the 364-Day Credit Agreement, dated as of March [12],
2010 (as amended, modified or supplemented from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the
undersigned, The Black & Xxxxxx Corporation, certain Designated Borrowers,
certain Lenders parties thereto, and Citibank, N.A., as Administrative
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Borrowing on the following terms under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
“Proposed
Borrowing”) as required by Section 2.02(b) of the Credit
Agreement:
(i) The
Borrower is ________________.
(ii) The
Business Day of the Proposed Borrowing is ,
20 .
|
|
(iii) The
Type of Advances comprising the Proposed Borrowing is [Base Rate]1 [Eurocurrency
Rate].
|
|
|
(iv) The
aggregate amount of the Proposed Borrowing is [$]2 [€]
[£] ______ .
|
|
|
[(v)] The
Initial Interest Period for each Eurocurrency Rate Advance made as part of
the Proposed Borrowing is
month[s]].
|
1 not available for any
Designated Borrower
2 not available for any
Designated Borrower
[(v) The proceeds of the
Proposed Borrowing are to be used to buy or carry Margin Stock, and attached
hereto are the certificates required pursuant to Section 3.02(ii) of the
Credit Agreement and a duly completed Form U-1 or Form G-3.]3
The undersigned hereby certifies that
the following statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
(A) the representations and
warranties contained in Section 4.01 of the Credit Agreement (other than the
Excluded Representation) are correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred
and is continuing, or would result from such Proposed Borrowing or from the
application of the proceeds therefrom, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
|
Very
truly yours,
Xxxxxxx
Xxxxx & Xxxxxx, Inc.
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
NOTICE OF
CONVERSION OR CONTINUATION
[Date]
Citibank,
N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
[________]
Ladies
and Gentlemen:
The undersigned, Xxxxxxx Xxxxx &
Xxxxxx, Inc., refers to the 364-Day Credit Agreement, dated as of March [12],
2010 (as amended, modified or supplemented from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the
undersigned, The Black & Xxxxxx Corporation, certain Lenders parties
thereto, and Citibank, N.A., as Administrative Agent for said Lenders, and
hereby gives you notice, pursuant to Section 2.04(b) of the Credit Agreement
that [the undersigned] [NAME OF DESIGNATED BORROWER] hereby elects to
[convert][continue] the Borrowing consisting of [Base Rate][Eurocurrency Rate]
Advances:
|
|
(i) which
is in the amount of $
;
|
|
|
(ii) which,
in the case of a Borrowing consisting of Eurocurrency Rate Advances, has
an Interest Period of
month(s);4
and
|
|
|
(iii) which
was borrowed (or previously converted or continued) on ________,
20__.
|
Omit clause (ii) if Committed Borrowing consisted of Base Rate
Advances.
Such [conversion][continuation] shall
become effective on ,
20_ , at
which time such Advances shall be [converted into][continued as] [Base
Rate][Eurocurrency Rate] Advances:
|
|
(i) which
is in the amount of $
;5
|
and
|
|
(ii) which
has an Interest Period of
month(s)6.
|
|
Very
truly yours,
Xxxxxxx
Xxxxx & Xxxxxx, Inc.
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
2 Omit clause
(i) if conversion or continuation is for entire amount of Committed
Borrowing.
EXHIBIT
C
EXHIBIT D
EXHIBIT
E
FORM OF
OPINION OF COUNSEL TO THE COMPANY
March
[12], 2010
To each
of the Lenders listed on
Schedule
I hereto and to
Citibank,
N.A., as Administrative Agent
For the
Lenders
|
|
Re:
|
The
$700,000,000 364-Day Credit Agreement among Xxxxxxx Xxxxx & Xxxxxx,
Inc., The Black & Xxxxxx Corporation, the Lenders party thereto and
Citibank, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
We
have acted as special counsel to Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut
corporation (the “Borrower”) in connection with the negotiation, execution and
delivery of that certain $700,000,000 364-Day Credit Agreement, dated as of the
date hereof, by and among the Borrower, The Black & Xxxxxx Corporation, the
lenders party thereto (the “Lenders”) and Citibank, N.A., as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”) (the
“Credit Agreement”).
This
opinion is being delivered pursuant to Section 3.01(d) of the Credit
Agreement. Capitalized terms used herein and not expressly defined
herein have the definitions specified in the Credit Agreement.
In
addition to the Credit Agreement, we have examined originals, certified copies
or copies otherwise identified as being true copies of the
following:
|
|
(a)
|
the
Restated Certificate of Incorporation of the Borrower, dated September 11,
1998, filed with the Connecticut Secretary of State’s office on September
15, 1998, certified by the Secretary of the Borrower as of the date
hereof,
|
|
|
(b)
|
the
Bylaws of the Borrower as in effect as of the date hereof, as certified by
the Secretary of the Borrower as of the date
hereof;
|
|
|
(c)
|
the
resolutions duly adopted at a meeting of the Board of Directors of the
Borrower on ___________, ____ authorizing, among other things, the
execution, delivery and performance by the Borrower of the Credit
Agreement and the transactions contemplated
thereby;
|
|
|
(d)
|
the
Certificate of Legal Existence of the Borrower as of __________, ____
issued by the Connecticut Secretary of
State;
|
|
|
(e)
|
the
Certificate of the General Counsel of the Borrower, dated as of the date
hereof, a copy of which is attached hereto as Exhibit A (the
“Borrower’s Certificate”);
|
|
|
(f)
|
a
copy of the Borrower’s Annual Report on Form 10-K for the year ended
January 1, ____ (the “Form 10-K”) filed with the Securities and Exchange
Commission;
|
With
your concurrence, the opinions hereafter expressed, whether or not qualified by
language such as “to our knowledge”, are based solely upon (1) our
review of the Credit Agreement, (2) inquiry among members of our firm that have
given substantive attention to the negotiation of the Credit Agreement, and (3)
such review of published sources of law as we have deemed
necessary. This firm, in rendering legal opinions, customarily makes
certain assumptions which are described in Schedule A
hereto. In the course of our representation of the Borrower in
connection with this transaction, nothing has come to our attention which causes
us to believe reliance upon any of those assumptions is inappropriate, and, with
your concurrence, the opinions hereafter expressed are based upon those
assumptions. Our opinions hereafter expressed are limited to the laws
of the State of New York, the corporate laws of the State of Connecticut and
Federal law.
The opinions hereafter expressed with
respect to the enforceability of any provisions of the Credit Agreement or any
rights or remedies granted to the Lenders or the Administrative Agent under the
Credit Agreement, are subject to the general qualifications that such rights and
remedies may be subject to and affected by:
(i) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium, or assignment
for the benefit of creditors laws and other laws affecting the rights and
remedies of creditors generally, including without limitation laws regarding
fraudulent transfers, fraudulent conveyances, preferences, avoidance, automatic
stay and turn-over;
(ii) general
principles of equity, including without limitation those governing the
availability of equitable remedies, affording equitable defenses, requiring good
faith, fair dealing and reasonableness in the performance and enforcement of a
contract, and affording defenses based upon unconscionability, lack of notice,
impracticability or impossibility of performance;
(iii) general
rules of contract law with respect to matters such as the election of remedies,
the limits of severability, mutuality of obligations, and opportunity to cure,
limitations on the enforceability of indemnification, contribution or
exculpation provisions under applicable securities laws or otherwise and
limitations on the enforceability of provisions that are in violation of public
policy; and
(iv) determination
by the courts in which litigation may be instituted that certain provisions of
the Credit Agreement pertaining to the payment of legal expenses, including
attorneys’ fees, the waiving of hearings, the designation of federal and state
courts as having jurisdiction and/or venue are reasonable and comply with, or
are permitted by, applicable constitutional provisions and by applicable laws,
regulations and rules of court.
We express no opinion as to the
enforceability of any provision in the Credit Agreement which purports to excuse
or indemnify the Lenders or the Administrative Agent from any liability for
negligent or intentional acts or omissions. We note that our opinion
in paragraph 1 below as to the good standing of the Borrower are limited to the
information provided in the certificate of the Secretary of State of the State
of Connecticut to the effect that Borrower has legal existence.
We express no opinion concerning any
provision in the Credit Agreement which purports to (i) establish evidentiary
standards or make determinations conclusive, (ii) waive any rights which may not
by law be waived (including the rights to notice and hearing), or (iii)
effectuate any provision contained in the Credit Agreement which purports to
limit the Lenders’ or the Administrative Agent’s liability. The
provisions of the Credit Agreement regarding the declaration of a default or
event of default may be subject to enforcement of a court imposed standard of
materiality in determining whether an actionable event of default
exists.
Based upon and subject to the
foregoing, we are of the opinion that:
1. The
Borrower is a corporation validly existing and in good standing under the laws
of the State of Connecticut.
2. The
execution, delivery and performance by the Borrower of the Credit Agreement and
the consummation of the transaction contemplated thereby are within the power
and authority of the Borrower and have been duly authorized by all necessary
proceedings under the organizational documents of the Borrower, and did not and
do not (i) violate or conflict with any provision of the organizational
documents of the Borrower, (ii) violate or conflict with any law, rule or
regulation of any governmental authority applicable to the Borrower, (iii)
require the Borrower to obtain any approval, consent or waiver of, or make any
filing with, any governmental agency or body (other than approvals, consents or
waivers already obtained or filings already made), (iv) require the consent or
authorization of, or approval by, or notice to, any party to any material
contract or agreement of which we have knowledge to which the Borrower is a
party, except for such consents, authorizations, approvals or notices that
(assuming the power and authority of the consenting entity and the authority and
capacity of the person signing on its behalf) have been obtained or made, or (v)
violate or conflict with any judgment, order or decree of which we have
knowledge to which the Borrower is a party or by which any of its assets or
properties is bound.
3. The
Credit Agreement has been duly executed and delivered by the Borrower; and the
Credit Agreement constitutes the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with its terms.
4. The
Borrower is not an “investment
company,” or a company “controlled” by an “investment company,” within
the meaning of the Investment Company Act of 1940, as amended.
This opinion is rendered to you for
your benefit in connection with the transactions contemplated by the Credit
Agreement and may not be delivered to, or relied upon by, any other party
without our prior written consent.
|
Very truly yours,
XXXXX XXXXXXX LLP
|
|||
|
|
|
||
SCHEDULE
A
XXXXX
XXXXXXX LLP
STANDARD
ASSUMPTIONS
In rendering legal opinions in third
party transactions, Xxxxx Xxxxxxx LLP makes certain customary assumptions
described below:
|
|
1.
|
Each
natural person executing the Credit Agreement and has sufficient legal
capacity to enter into the Credit Agreement and perform the transactions
contemplated thereby.
|
|
|
2.
|
Each
person other than the Borrower has all requisite power and authority and
has taken all necessary corporate or other action to enter into the Credit
Agreement, to the extent necessary to make the Credit Agreement
enforceable against it.
|
|
|
3.
|
Each
person other than the Borrower has complied with all legal requirements
pertaining to its status as such status relates to its rights to enforce
the Credit Agreement against the
Borrower.
|
|
|
4.
|
All
documents examined by us in connection with rendering this opinion are
accurate, complete and authentic, each original is authentic, each copy
conforms to an authentic original and (other than signatures on behalf of
the Borrower) all signatures are
genuine.
|
|
|
5.
|
All
official public records are accurate, complete and properly indexed and
filed.
|
|
|
6.
|
There
has not been any mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence by or among any of the parties to the Credit
Agreement.
|
|
|
7.
|
The
conduct of the parties to the Credit Agreement has complied in the past
and will comply in the future with any requirement of good faith, fair
dealing and conscionability.
|
|
|
8.
|
Each
person other than the Borrower has acted in good faith and without notice
of any defense against the enforcement of any rights created by, or
adverse claim to any property or security interest transferred or created
as part of, the Transaction.
|
|
|
9.
|
There
are no agreements or understandings among the parties to or bound by the
Credit Agreement, and there is no usage of trade or course of prior
dealing among such parties, that would define, modify, waive, or qualify
the terms of the Credit Agreement.
|
|
|
10.
|
The
Borrower will not in the future take any discretionary action (including a
decision not to act) permitted under the Credit Agreement that would
result in a violation of law or constitute a breach or default under the
Credit Agreement or court or administrative orders, writs, judgments and
decrees that name the Borrower.
|
|
|
11.
|
The
Borrower will obtain all permits and governmental approvals not required
at the time of the closing of the transactions contemplated by the Credit
Agreement but which are subsequently required, and will take all actions
similarly required, relevant to subsequent consummation of the
transactions or performance of the Credit
Agreement.
|
|
|
12.
|
All
parties to or bound by the Credit Agreement will act in accordance with,
and will refrain from taking any action that is forbidden by, the terms
and conditions of the Credit
Agreement.
|
BORROWER’S
CERTIFICATE
I,
Xxxxx X. Xxxxx, am the General Counsel of Xxxxxxx Xxxxx & Xxxxxx, Inc. (the
“Borrower”). I understand that, pursuant to Section 3.01(d) of that
certain 364-Day Credit Agreement, dated as of the date hereof (the “Credit
Agreement”), among the Borrower, the lenders party thereto (the “Lenders”) and
Citibank, N.A., as administrative agent for the Lenders, Xxxxx Xxxxxxx LLP is
relying upon this certificate and the statements made herein in rendering
certain legal opinions. Capitalized terms used herein but not
otherwise defined shall have the meaning set forth in the Credit
Agreement.
With
regard to the foregoing, on behalf of the Borrower, I certify that, as of the
date hereof:
1. Based
solely and exclusively on conversations with Xxxxx X. Xxxxxxx, Treasurer of the
Borrower:
a. The
value of all securities owned by the Borrower (excluding those by majority-owned
Subsidiaries of the Borrower) does not exceed ten percent (10%) of the value of
the Borrower’s total assets;
b. Less
than twenty-five percent (25%) of the assets of the Borrower on a consolidated
basis and on an unconsolidated basis consist of the margin stock (as such term
is defined in Regulation U of the Board of Governors of the Federal Reserve
System); and
c. The
Borrower is primarily engaged, directly or through a wholly-owned Subsidiary or
Subsidiaries, in a business of businesses other than that of investing,
reinvesting, owning, holding or trading in securities and is not engaged and
does not propose to engage in the business of investing, reinvesting, owning,
holding or trading in securities, and does not own or propose to acquire
investment securities having a value exceeding forty percent (40%) of the value
of the Borrower’s total assets (exclusive of government securities and cash
items) on an unconsolidated basis.
2. Based
solely and exclusively on interviews of the officers of the Borrower responsible
for its financing activities and the lawyers under my supervision, the
execution, delivery and performance by the Borrower of any of its obligations
under the Credit Agreement does not and will not require the Borrower to obtain
any approval, consent or waiver of, or make any filing with, any governmental
agency or body (other than approvals, consents or waivers already obtained or
filings already made), require the consent or authorization of, or approval by,
or notice to, any party to any material contract or agreement to which the
Borrower is a party, except for such consents, authorizations, approvals or
notices that (assuming the power and authority of the consenting entity and the
authority and capacity of the person signing on its behalf) have been obtained
or made, or violate or conflict with any judgment, order or decree to which the
Borrower is a party or by which any of its assets or properties is
bound.
In
Witness Whereof, I have executed this certificate as of March [12],
2010.
|
|
By
|
||
| Name: Xxxxx X. Xxxxx | |||
| Title: Vice President, General Counsel and Secretary | |||
FORM OF
OPINION OF COUNSEL TO THE SUBSIDIARY GUARANTOR
March
[12], 2010
To each
of the Lenders listed on
Schedule
I hereto and to
Citibank,
N.A., as Administrative Agent
For the
Lenders
|
|
Re:
|
The
$700,000,000 364-Day Credit Agreement among Xxxxxxx Xxxxx & Xxxxxx,
Inc., The Black & Xxxxxx Corporation, the Lenders party thereto and
Citibank, N.A., as Administrative
Agent
|
[TO
COME]
FORM
OF OPINION OF SPECIAL NEW YORK COUNSEL TO
THE
ADMINISTRATIVE AGENT
March [12], 2010
To the
Initial Lenders party to the Credit
Agreement
referred to below and to
Citibank,
N.A., as Administrative Agent
Xxxxxxx Xxxxx & Xxxxxx,
Inc.
Ladies
and Gentlemen:
We have acted as counsel to Citibank,
N.A., as Administrative Agent (the “Agent”), in
connection with the 364-Day Credit Agreement, dated as of March [12], 2010 (the
“Credit
Agreement”), among Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut
corporation (the “Company”), The Black
& Xxxxxx Corporation, a Maryland corporation (the “Subsidiary
Guarantor”), and each of you. Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as therein
defined.
In that connection, we have reviewed
originals or copies of the following documents:
(a) A copy of the Credit Agreement
executed by each of the Company and the Subsidiary Guarantor and
(b) The Notes executed by the Company
and delivered on the date hereof.
The
documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the “Opinion Documents.”
We have also reviewed originals or
copies of such other agreements and documents as we have deemed necessary as a
basis for the opinions expressed below.
In our review of the Opinion Documents
and other documents, we have assumed:
|
|
A.
|
The
genuineness of all signatures.
|
|
|
B.
|
The
authenticity of the originals of the documents submitted to
us.
|
|
|
C.
|
The
conformity to authentic originals of any documents submitted to us as
copies.
|
|
|
D.
|
As
to matters of fact, the truthfulness of the representations made in the
Credit Agreement and the other Opinion
Documents.
|
|
|
E.
|
That
each of the Opinion Documents is the legal, valid and binding obligation
of each party thereto, other than the Loan Parties, enforceable against
each such party in accordance with its
terms.
|
|
|
F.
|
That:
|
(i) Each
Loan Party is an entity duly organized and validly existing under the laws of
the jurisdiction of its organization.
(ii) Each
Loan Party has full power to execute, deliver and perform, and has duly executed
and delivered, the Opinion Documents to which it is a party.
(iii) The
execution, delivery and performance by each Loan Party of the Opinion Documents
to which it is a party have been duly authorized by all necessary action
(corporate or otherwise) and do not:
(1) contravene
its certificate or articles of incorporation, by-laws or other organizational
documents;
(2) except
with respect to Generally Applicable Law, violate any law, rule or regulation
applicable to it; or
(3) result
in any conflict with or breach of any agreement or document binding on it of
which any addressee hereof has knowledge, has received notice or has reason to
know.
(iv) Except
with respect to Generally Applicable Law, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or (to the extent the same is required under any agreement or
document binding on it of which an addressee hereof has knowledge, has received
notice or has reason to know) any other third party is required for the due
execution, delivery or performance by any Loan Party of any Opinion Documents to
which it is a party or, if any such authorization, approval, action, notice or
filing is required, it has been duly obtained, taken, given or made and is in
full force and effect.
We have not independently established
the validity of the foregoing assumptions.
“Generally Applicable
Law” means the federal law of the United States of America, and the law
of the State of New York (including the rules or regulations promulgated
thereunder or pursuant thereto), that a New York lawyer exercising customary
professional diligence would reasonably be expected to recognize as being
applicable to the Loan Parties, the Opinion Documents or the transactions
governed by the Opinion Documents. Without limiting the generality of
the foregoing definition of Generally Applicable Law, the term “Generally
Applicable Law” does not include any law, rule or regulation that is applicable
to any Loan Party, the Opinion Documents or such transactions solely because
such law, rule or regulation is part of a regulatory regime applicable to any
party to any of the Opinion Documents or any of its affiliates due to the
specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such
other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that each Opinion Document
is the legal, valid and binding obligation of each Loan Party, enforceable
against such Loan Party in accordance with its terms.
Our opinion expressed above is subject
to the following qualifications:
(a) Our
opinion is subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
(including without limitation all laws relating to fraudulent
transfers).
(b) Our
opinion is subject to the effect of general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law).
(c) We
express no opinion with respect to the enforceability of indemnification
provisions, or of release or exculpation provisions, contained in the Opinion
Documents to the extent that enforcement thereof is contrary to public policy
regarding the indemnification against or release or exculpation of criminal
violations, intentional harm or violations of securities laws.
(d) We
express no opinion with respect to the enforceability of any indemnity against
loss in converting into a specified currency the proceeds or amount of a court
judgment in another currency.
(e) Our
opinion is limited to Generally Applicable Law.
A copy of this opinion letter may be
delivered by any of you to any person that becomes a Lender in accordance with
the provisions of the Credit Agreement. Any such person may rely on
the opinions expressed above as if this opinion letter were addressed and
delivered to such person on the date hereof.
This opinion letter is rendered to you
in connection with the transactions contemplated by the Opinion
Documents. This opinion letter may not be relied upon by you or any
person entitled to rely on this opinion pursuant to the preceding paragraph for
any other purpose without our prior written consent.
This opinion letter speaks only as of
the date hereof. We expressly disclaim any responsibility to advise
you of any development or circumstance of any kind, including any change of law
or fact, that may occur after the date of this opinion letter that might affect
the opinions expressed herein.
Very truly
yours,
SLH
ASSIGNMENT
AND ACCEPTANCE
Reference is made to the 364-Day Credit
Agreement dated as of March [12], 2010 (as amended or modified from time to
time, the “Credit
Agreement”) among Xxxxxxx Xxxxx & Xxxxxx, Inc., a Connecticut
corporation (the “Company”), The Black
& Xxxxxx Corporation, the Lenders (as defined in the Credit Agreement) and
Citibank, N.A., as Administrative Agent for the Lenders (the “Administrative
Agent”). Terms defined in the Credit Agreement are used herein
with the same meaning.
The “Assignor” and the “Assignee”
referred to on Schedule I hereto agree as follows:
1. The Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and assumes from
the Assignor, an interest in and to the Assignor’s rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and obligations under
the Credit Agreement. After giving effect to such sale and
assignment, the Assignee’s Commitment and the amount of the Advances owing to
the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor
(i) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note held by the Assignor and requests that the Administrative Agent
exchange such Note for a new Note payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee
(i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Assignor 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
the Credit Agreement; (iii) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; (v) agrees, for
the benefit of the Company, that it will be bound by the terms and provisions of
the Credit Agreement to the same extent as if it were an original party thereto;
and (vi) attaches any U.S. Internal Revenue Service forms required under
Section 8.09 of the Credit Agreement.
4. Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The
effective date for this Assignment and Acceptance (the “Effective Date”)
shall be the date of acceptance hereof by the Administrative Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and
recording by the Administrative Agent, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon such acceptance and
recording by the Administrative Agent, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest and facility fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and
Acceptance shall be governed by, and construed in accordance with, the law of
the State of New York.
8. This Assignment and
Acceptance may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of
Schedule 1 to this Assignment and Acceptance by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and
the Assignee have caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the date specified
thereon.
|
|
By
|
||
| Name: | |||
| Title: | |||
to
Assignment
and Acceptance
|
Percentage
interest assigned:
|
% | |||
|
Assignee’s
Commitment:
|
$ | |||
|
Aggregate
outstanding principal amount of
Advances
assigned:
|
$ | |||
|
Principal
amount of Note
payable
to Assignee:
|
$ | |||
|
Principal
amount of Note
payable
to Assignor:
|
$ | |||
|
|
||||
|
Effective
Date7:
|
_______________,
|
20__ | ||
|
[NAME
OF ASSIGNOR],
as Assignor
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
| Dated: ____________________, 20___ |
|
[NAME
OF ASSIGNEE],
as Assignor
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
| Dated: ____________________, 20___ |
6 This
date should be no earlier than five Business Days after the delivery of this
Assignment
and Acceptance to the Agent.
Domestic
Lending Office:
[Address]
Eurocurrency
Lending Office:
[Address]
Accepted
this ________________ day
of
_______________, 20__
Citibank,
N.A., as Administrative Agent
By_________________________
Name:
Title:
[Approved
this ________________ day
of
_______________, 20__
Xxxxxxx
Xxxxx & Xxxxxx, Inc.
By_________________________
Name:
Title:
PROMISSORY
NOTE
[$][€][£]___________ Dated:_______________________
FOR VALUE RECEIVED, the undersigned,
[XXXXXXX XXXXX & XXXXXX, INC., a Connecticut corporation] [DESIGNATED
BORROWER, a [________] corporation] (the “Borrower”), HEREBY
PROMISES TO PAY to the order of [NAME OF LENDER] (the “Lender”) the
principal sum of [$][€][£]
or, if less, the aggregate principal amount of all Advances made by the
Lender to the Borrower pursuant to the Credit Agreement referred to below
outstanding on the Termination Date, and such amount shall be paid on or prior
to the Termination Date as provided in the Credit Agreement referred to
below.
Capitalized terms used herein and not
defined herein shall have the meanings provided in the Credit Agreement referred
to below.
The Borrower promises to pay interest
on the principal amount of each Advance from the date of such Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement referred to below.
Both principal of and interest on each
Advance are payable in the Currency in which such Advance was denominated to
Citibank, N.A., as Administrative Agent, at the Administrative Agent’s Account
in the Principal Financial Center for such Currency for the account of the
Lender, in same day funds. Each Advance made by the Lender to the
Borrower and the maturity thereof, and all payments made on account of the
principal amount thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is a part of this
Promissory Note, which recordation shall be conclusive and binding absent
manifest error but the failure to make such recording shall not have any effect
on the Lender’s rights hereunder.
This Promissory Note is one of the
Notes referred to in, and is entitled to the benefits of, the 364-Day Credit
Agreement dated as of March [12], 2010 (as amended, modified or supplemented
from time to time, the “Credit Agreement”),
among [Xxxxxxx Xxxxx & Xxxxxx, Inc./the Borrower], The Black & Xxxxxx
Corporation, certain Designated Borrowers (if any), the Lender and certain other
lenders parties thereto, and Citibank, N.A., as Administrative Agent for the
Lender and such other lenders. The Credit Agreement, among other
things, (i) provides for the making of Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
|
[XXXXXXX
XXXXX & XXXXXX, INC.]
[DESIGNATED
BORROWER]
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
|
|
By
|
||
| Name: | |||
| Title: | |||
FORM OF
DESIGNATION LETTER
[Date]
To
Citibank, N.A.,
as Administrative Agent
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: [__________]
Ladies
and Gentlemen:
We make reference to the $700,000,000
364-Day Credit Agreement dated as of March [12], 2010 (the “Credit Agreement”)
among Xxxxxxx Xxxxx & Xxxxxx, Inc. (the “Company”), The Black
& Xxxxxx Corporation, certain Designated Borrowers (if any), the Lenders
party thereto and Citibank, N.A., as Administrative Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
The Company hereby designates
[____________] (the “Designated
Borrower”), a corporation duly incorporated under the laws of
[_____________] and a Subsidiary, as a Company in accordance with
Section 2.14 of the Credit Agreement.
The Designated Borrower hereby accepts
the above designation and hereby expressly and unconditionally accepts all of
the obligations of a Borrower under the Credit Agreement, adheres to the Credit
Agreement and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this letter, it shall be a Borrower for all
purposes of the Credit Agreement, joins in each of the waivers, appointments and
submissions in Article VIII thereof, and will perform and comply with the
terms and provisions of the Credit Agreement applicable to it as if it had
originally executed the Credit Agreement as a Borrower. The
Designated Borrower hereby authorizes and empowers the Company to act as its
representative and attorney-in-fact for the purposes of signing documents and
giving and receiving notices (including notices of Borrowing under the Credit
Agreement) and other communications in connection with the Credit Agreement and
the transactions contemplated thereby and for the purposes of modifying or
amending any provision of the Credit Agreement and further agrees that the
Administrative Agent and each Lender may conclusively rely on the foregoing
authorization.
The Designated Borrower represents and
warrants to the Administrative Agent and each Lender the following:
|
|
(a)
|
Corporate
Existence. The Designated Borrower is an entity duly
organized and validly existing under the laws of its jurisdiction of
formation.
|
|
|
(b)
|
Corporate
Authorization, Etc. The performance of its obligations
under the Credit Agreement and the execution, delivery and performance by
the Designated Borrower of this Designation Letter and any Note executed
by the Designated Borrower are within the Designated Borrower’s corporate
powers, have been duly authorized by all necessary corporate action and do
not contravene (i) the Designated Borrower’s charter documents of (ii) any
law or contractual restriction binding on or affecting the Designated
Borrower.
|
|
|
(c)
|
No
Approvals. No authorization, approval or action by, and
no notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Designated Borrower’s of this Designation Letter and any Note executed by
the Designated Borrower or the performance of its obligations under the
Credit Agreement.
|
|
|
(d)
|
Enforceability. Each
of the Credit Agreement and this Designation Letter is and, upon issuance
and delivery thereof in accordance with the Credit Agreement, each Note
executed by the Designated Borrower will be the legal, valid and binding
obligations of the Designated Borrower, enforceable against the Designated
Borrower in accordance with their respective
terms.
|
|
|
(e)
|
Investment
Company. The Designated Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.
|
|
|
(f)
|
No
Defaults. The Designated Borrower is not in default
under or with respect to any agreement, instrument or undertaking to which
it is a party or by which it or any of its property is bound in any
respect which could reasonably be expected to result in a Material Adverse
Effect.
|
|
|
(g)
|
Use of Proceeds,
Etc. All proceeds of each Advance made to the Designated
Borrower will be used by it only in accordance with the provisions of
Section 2.12 of the Credit Agreement. It is not, nor will be,
engaged in the business of extending credit for the purpose of buying or
carrying Margin Stock and no proceeds of any Advance will be used by it to
extend credit to others for the purpose of buying or carrying any Margin
Stock. Neither the making of any Advance to the Designated
Borrower nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations U or X issued by the Board
of Governors of the Federal Reserve
System.
|
The Designated Borrower agrees that the
address set forth below its name on its signature page hereto shall be its
“Address for Notices” for all purposes of the Credit Agreement (including
Section 8.13 thereof). The Designated Borrower acknowledges its
receipt of the notice of each Lender, provided pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), set forth in Section 8.15 of the Credit Agreement.
To the extent that the Designated
Borrower or any of its Property has or hereafter may acquire, in any
jurisdiction in which judicial proceedings may at any time be commenced with
respect to the Credit Agreement or any other Loan Document, any immunity from
jurisdiction, legal proceedings, attachment (whether before or after judgment),
execution, judgment or set-off, the Designated Borrower hereby irrevocably
agrees not to claim and hereby irrevocably waives such immunity.
|
XXXXXXX
XXXXX & XXXXXX, INC.
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
|
|
By
|
||
| Name: | |||
| Title: | |||
|
[NAME
OF DESIGNATED BORROWER]
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
Address
for Notices:
[_________________]
[_________________]
[_________________]
Attention: [____________]
Telecopier: [____________]
Telephone: [____________]
ACCEPTED
AND AGREED:
CITIBANK,
N.A.,
as Administrative Agent
By________________________
Name:
Title:
FORM OF
TERMINATION LETTER
[Date]
To
Citibank, N.A.,
as Administrative Agent
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: [__________]
Ladies
and Gentlemen:
We make reference to the $700,000,000
364-Day Credit Agreement dated as of March [12], 2010 (the “Credit Agreement”)
among Xxxxxxx Xxxxx & Xxxxxx, Inc. (the “Company”), The Black
& Xxxxxx Corporation, certain Designated Borrowers (if any), the Lenders
party thereto and Citibank, N.A., as Administrative Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
The Company hereby terminates the
status as a Designated Borrower of [_________________], a corporation
incorporated under the laws of [_______________], in accordance with
Section 2.14 of the Credit Agreement, effective as of the date of receipt
of this notice by the Administrative Agent. The undersigned hereby
represents and warrants that all principal and interest on any Advance of the
above-referenced Designated Borrower and all other amounts payable by such
Designated Borrower pursuant to the Credit Agreement have been paid in full on
or prior to the date hereof. Notwithstanding the foregoing, this
Termination Letter shall not affect any obligation which by the terms of the
Credit Agreement survives termination thereof.
|
XXXXXXX
XXXXX & XXXXXX, INC.
|
|||
|
|
By
|
||
| Name: | |||
| Title: | |||
|
|
By
|
||
| Name: | |||
| Title: | |||
G-1
