Exhibit 10(ee)
Execution Version
Published CUSIP Number: 000000XX0
Revolving A Credit Facility CUSIP Number: 000000XX0
Revolving B Credit Facility CUSIP Number: 000000XX0
$400,000,000
CREDIT AGREEMENT
among
THE BRINK'S COMPANY,
as Parent Borrower,
THE SUBSIDIARY BORROWERS REFERRED TO HEREIN,
CERTAIN OF PARENT BORROWER'S SUBSIDIARIES,
as Guarantors,
VARIOUS LENDERS,
BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY,
as Documentation Agent,
BANK OF AMERICA, N.A.
and
JPMORGAN CHASE BANK, N.A.,
as Syndication Agents,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, an Issuing Lender and Swingline Lender
Dated as of August 11, 2006
WACHOVIA CAPITAL MARKETS, LLC and X.X. XXXXXX SECURITIES INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS, ETC.
Section 1.1 Definitions..................................................1
Section 1.2 General.....................................................25
Section 1.3 Other Definitions and Provisions............................25
Section 1.4 Accounting Terms............................................25
Section 1.5 Redenomination of Certain Foreign Currencies and
Computation of Dollar Equivalents..........................26
ARTICLE II
CREDIT FACILITIES
Section 2.1 Amount and Terms of Credit..................................27
Section 2.2 Procedure for Advances of Revolving Credit Loans............28
Section 2.3 Conversion and Continuation of Revolving Credit Loans.......30
Section 2.4 Repayment of Loans..........................................31
Section 2.5 Competitive Bid Loans and Procedures........................32
Section 2.6 Swingline Loans.............................................37
Section 2.7 Termination of Commitments..................................39
Section 2.8 Commitment Reductions.......................................39
Section 2.9 Commitment Increase.........................................39
Section 2.10 New Class of Commitments....................................40
Section 2.11 Addition or Removal of Foreign Subsidiary Borrowers;
Optional Currencies........................................41
Section 2.12 Parent Borrower as Agent for Subsidiary Borrowers...........43
ARTICLE III
LETTER OF CREDIT FACILITY
Section 3.1 L/C Commitment..............................................43
Section 3.2 Procedure for Issuance of Letters of Credit.................45
Section 3.3 Fees and Other Charges......................................45
Section 3.4 L/C Participations..........................................46
Section 3.5 Reimbursement Obligation of the Revolving Borrowers.........48
Section 3.6 Obligations Absolute........................................49
Section 3.7 Letter of Credit Payments...................................49
Section 3.8 Effect of L/C Application...................................49
i
ARTICLE IV
GENERAL LOAN PROVISIONS
Section 4.1 Interest and Utilization Fee................................50
Section 4.2 Facility Fee................................................52
Section 4.3 Pro Rata Treatment: Manner of Payment.......................53
Section 4.4 Crediting of Payments and Proceeds..........................53
Section 4.5 Adjustments.................................................54
Section 4.6 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent.............54
Section 4.7 Changed Circumstances; Illegality...........................55
Section 4.8 Indemnity...................................................60
Section 4.9 Capital Requirements........................................60
Section 4.10 Taxes.......................................................61
ARTICLE V
CONDITIONS OF CLOSING AND BORROWING
Section 5.1 Conditions to Closing.......................................64
Section 5.2 Conditions to All Extensions of Credit......................67
Section 5.3 Initial Extension of Credit to Each New Foreign Subsidiary
Borrower...................................................68
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties..............................68
Section 6.2 Accuracy and Completeness of Information....................73
Section 6.3 Labor Matters...............................................74
Section 6.4 Survival of Representations and Warranties. Etc.............74
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Section 7.1 Financial Statements. Etc...................................74
Section 7.2 Notice of Litigation and Other Matters......................77
ARTICLE VIII
AFFIRMATIVE COVENANTS
Section 8.1 Payment of Taxes. etc.......................................78
Section 8.2 Maintenance of Insurance....................................78
Section 8.3 Preservation of Corporate Existence, etc....................78
Section 8.4 Compliance with Laws, etc...................................79
ii
Section 8.5 Compliance with ERISA and the Code..........................79
Section 8.6 Compliance with Contracts, etc..............................79
Section 8.7 Access to Properties........................................79
Section 8.8 Conduct of Business.........................................79
Section 8.9 Use of Proceeds.............................................79
Section 8.10 Additional Guarantors.......................................79
ARTICLE IX
NEGATIVE COVENANTS
Section 9.1 Financial Covenants.........................................80
Section 9.2 Limitations on Liens........................................80
Section 9.3 Disposition of Debt and Shares of Restricted Subsidiaries:
Issuance of Shares by Restricted Subsidiaries:
Consolidation. Merger or Disposition of Assets..............82
Section 9.4 Transactions with Affiliates................................83
Section 9.5 Compliance with Regulations T, U and X......................83
Section 9.6 Hedging Agreements..........................................83
Section 9.7 ERISA.......................................................84
Section 9.8 Limitations on Acquisitions.................................84
Section 9.9 Sale Leaseback Transactions.................................84
Section 9.10 Limitations on Investments..................................85
ARTICLE X
GUARANTY
Section 10.1 Guaranty of Payment.........................................86
Section 10.2 Obligations Unconditional...................................86
Section 10.3 Modifications...............................................87
Section 10.4 Waiver of Rights............................................87
Section 10.5 Reinstatement...............................................88
Section 10.6 Remedies....................................................88
Section 10.7 Subrogation.................................................88
Section 10.8 Limitation of Guaranty......................................88
Section 10.9 Termination of Guaranty Upon Divestiture....................88
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1 Events of Default...........................................89
Section 11.2 Remedies....................................................92
Section 11.3 Rights and Remedies Cumulative; Non-Waiver; etc.............93
iii
ARTICLE XII
THE AGENTS
Section 12.1 Appointment.................................................94
Section 12.2 Delegation of Duties........................................94
Section 12.3 Exculpatory Provisions......................................94
Section 12.4 Reliance by the Agents......................................95
Section 12.5 Notice of Default...........................................95
Section 12.6 Non-Reliance on the Agents and Other Lenders................95
Section 12.7 Indemnification.............................................96
Section 12.8 The Administrative Agent in Its Individual Capacity.........96
Section 12.9 Resignation of Agents: Successor Agents.....................97
Section 12.10 Co-Arrangers; Syndication Agents; Documentation Agent.......97
Section 12.11 Issuing Lender and Swingline Lender.........................97
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices.....................................................97
Section 13.2 Expenses, Indemnity.........................................99
Section 13.3 GOVERNING LAW..............................................100
Section 13.4 Consent to Jurisdiction; Waiver............................100
Section 13.5 WAIVER OF JURY TRIAL.......................................101
Section 13.6 Reversal of Payments.......................................101
Section 13.7 Accounting Matters.........................................101
Section 13.8 Successors and Assigns; Participations; Confidentiality....101
Section 13.9 Disclosure of Information; Confidentiality.................106
Section 13.10 Amendments, Waivers and Consents...........................106
Section 13.11 Performance of Duties......................................107
Section 13.12 All Powers Coupled with Interest...........................107
Section 13.13 Acknowledgements...........................................107
Section 13.14 Survival of Indemnities....................................108
Section 13.15 Titles and Captions........................................108
Section 13.16 Severability of Provisions.................................108
Section 13.17 Counterparts...............................................108
Section 13.18 Binding Effect; Amendment and Restatement; Term of
Agreement.................................................108
Section 13.19 Inconsistencies with Other Documents; Independent Effect
of Covenants..............................................109
Section 13.20 Integration................................................109
Section 13.21 Judgment Currency..........................................109
Section 13.22 USA Patriot Act Notice.....................................110
iv
SCHEDULES
---------
Schedule 1.1(a) Commitments as of Closing Date
Schedule 1.1(b) Subsidiary Borrowers
Schedule 1.1(c) Unrestricted Subsidiaries of the Borrower as of Closing Date
Schedule 1.1(d) Mandatory Costs Rate
Schedule 6.1.6 Subsidiaries of the Borrower as of Closing Date
Schedule 9.2 Liens as of Closing Date
EXHIBITS
--------
Exhibit A-1 Form of Notice of Borrowing
Exhibit A-2 Form of Swingline Loan Request
Exhibit B Form of Notice of Account Designation
Exhibit C Form of Notice of Prepayment
Exhibit D Form of New Lender Supplement
Exhibit E Form of Commitment Increase Supplement
Exhibit F Form of Guarantor Joinder Agreement
Exhibit G Form of Notice of Conversion/Continuation
Exhibit H Form of Assignment and Assumption
Exhibit I Form of Exemption Certificate
Exhibit J Form of Foreign Subsidiary Borrower Joinder Agreement
v
CREDIT AGREEMENT dated as of August 11, 2006 among THE BRINK'S COMPANY, a
Virginia corporation (the "Parent Borrower"), certain of the Parent Borrower's
Subsidiaries named on the signature pages hereto or that may hereafter become a
party hereto pursuant to Section 2.11, the Lenders from time to time party
hereto, BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as Documentation Agent (in
such capacity, the "Documentation Agent"), BANK OF AMERICA, N.A. and JPMORGAN
CHASE BANK, N.A., as Syndication Agents (in such capacity, the "Syndication
Agents") and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, an
Issuing Lender and Swingline Lender (all capitalized terms used herein and
defined in Section 1.1 are used herein as therein defined).
STATEMENT OF PURPOSE
WHEREAS, the Parent Borrower is a party to an existing $400,000,000 credit
agreement (the "Existing Credit Agreement"), dated as of October 15, 2004, among
the Parent Borrower, certain of its subsidiaries, various lenders and the agents
named therein;
WHEREAS, the Parent Borrower intends to refinance the Existing Credit
Agreement (the "Refinancing"); and
WHEREAS, to facilitate the Refinancing, and to finance its working capital
needs, capital expenditures, acquisitions and for all other general corporate
purposes, the Parent Borrower and the Foreign Subsidiary Borrowers wish to
establish with the Lenders credit facilities providing for revolving loans and
letters of credit of up to $400,000,000 in the aggregate maximum principal
amount at any time outstanding, and the Lenders and the Administrative Agent are
willing to establish such credit facilities on the terms and conditions set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
Section 1.1 Definitions.
The following terms when used in this Agreement shall have the meanings
assigned to them below:
"Administrative Agent" means Wachovia Bank, National Association in its
capacity as Administrative Agent hereunder, and any successor thereto appointed
pursuant to Section 12.9. It is understood that matters concerning Foreign
Currency Loans will be administered by the applicable Multicurrency Agent.
"Administrative Questionnaire" means an administrative questionnaire in the
form furnished by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person (other than
a Subsidiary) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first
Person or any of its Subsidiaries. The term "control" means the possession,
directly or indirectly, of any power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Agents" means, collectively, the Multicurrency Agents and the
Administrative Agent.
"Aggregate Commitment" means the sum of the Aggregate Revolving A
Commitment, the Aggregate Revolving B Commitment and the new Class of Commitment
established pursuant to Section 2.10.
"Aggregate Credit Exposure" means the sum of the Aggregate Revolving A
Credit Exposure and the Aggregate Revolving B Credit Exposure.
"Aggregate L/C Obligations" means at any time, an amount equal to the
Dollar Equivalent of the sum of (a) the aggregate undrawn and unexpired amount
of the then outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
"Aggregate L/C Sublimit" means $300,000,000.
"Aggregate Revolving A Commitment" means the aggregate Revolving A
Commitment of all Revolving A Lenders to make Revolving A Credit Loans and
participate in Revolving A Letters of Credit and Swingline Loans, as such amount
may be reduced or increased at any time or from time to time pursuant to the
terms hereof. The Aggregate Revolving A Commitment on the Closing Date shall be
$315,000,000.
"Aggregate Revolving A Credit Exposure" means the aggregate Revolving A
Credit Exposure of all Revolving A Lenders.
"Aggregate Revolving B Commitment" means the aggregate Revolving B
Commitment of all Revolving B Lenders to make Revolving B Credit Loans and
participate in Revolving B Letters of Credit, as such amount may be reduced or
increased at any time or from time to time pursuant to the terms hereof. The
Aggregate Revolving B Commitment on the Closing Date shall be $85,000,000.
"Aggregate Revolving B Credit Exposure" means the aggregate Revolving B
Credit Exposure of all Revolving B Lenders.
"Agreement" means this Credit Agreement, as amended, restated, supplemented
or otherwise modified.
"Alternate Base Rate" means, at any time, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the greater
of (a) the Prime Rate in effect on such day, and (b) the Federal Funds Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the
rate of interest per annum publicly announced from time to time by Wachovia as
2
its prime rate in effect at its principal office in Charlotte, North Carolina
(the Prime Rate not necessarily being intended to be the lowest rate of interest
charged by Wachovia in connection with extensions of credit to debtors); Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Alternate Base Rate Loan" means any Loan bearing interest at a rate based
upon the Alternate Base Rate.
"Applicable Law" means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of Governmental Authorities and all orders
and decrees of all courts and arbitrators.
"Applicable LT Rating" means (i) as to Moody's, its rating of the Parent
Borrower's senior, unsecured, long-term, non-credit-enhanced debt for borrowed
money and (ii) as to S&P, its corporate family rating of the Parent Borrower's
senior, unsecured, long-term, non-credit-enhanced debt for borrowed money.
"Applicable Percentage" means, for purposes of calculating (a) the interest
rate applicable to Eurocurrency Rate Loans under Section 4.1.1(a); (b) the
interest rate applicable to Alternate Base Rate Loans under Section 4.1.1(a);
(c) the Utilization Fee under Section 4.1.6; or (d) the Facility Fee under
Section 4.2, the applicable percentage set forth in the following tables
opposite the Applicable LT Rating:
|-----------------------------------------------------------------------------|
| Utilization |
| Alternate Fee with |
| Pricing Applicable Eurocurrency Base Rate Utilization Facility|
| Level LT Rating Rate Loan Loans >50% Fee |
|-----------------------------------------------------------------------------|
| I A/A2 or above 0.140% 0.000% 0.100% 0.060%|
|-----------------------------------------------------------------------------|
| II A-/A3 0.180% 0.000% 0.100% 0.070%|
|-----------------------------------------------------------------------------|
| III BBB+/Baal 0.270% 0.000% 0.100% 0.080%|
|-----------------------------------------------------------------------------|
| IV BBB/Baa2 0.350% 0.000% 0.100% 0.100%|
|-----------------------------------------------------------------------------|
| V BBB-/Baa3 0.475% 0.000% 0.100% 0.125%|
|-----------------------------------------------------------------------------|
| VI BB+/Ba1 or 0.575% 0.000% 0.125% 0.175%|
| below |
|-----------------------------------------------------------------------------|
For purposes of the foregoing, (i) if the Applicable LT Ratings established
by Moody's and S&P are different but correspond to consecutive Pricing Levels,
then the pricing will be based on the higher Applicable LT Rating (e.g., if
Moody's Applicable LT Rating corresponds to Level I and S&P's Applicable LT
Rating corresponds to Level II, then the pricing will be based on Level I), and
(ii) if the Applicable LT Ratings established by Moody's and S&P are more than
one Pricing Level apart, then the pricing will be based on the rating which is
one level higher than the lower rating (e.g., if Moody's and S&P's Applicable LT
Ratings correspond to Pricing Levels I and IV, respectively, then the pricing
will be based on Pricing Level III). As of the Closing Date, the Applicable
Percentage will be based on Level III.
3
The Applicable Percentage shall be adjusted on the date five (5) Business
Days after the date of any change in the Applicable LT Ratings (each such
adjustment date a "Rate Determination Date"). Each Applicable Percentage shall
be effective from a Rate Determination Date until the next such Rate
Determination Date. Adjustments in the Applicable Percentages shall be effective
as to existing Extensions of Credit as well as any new Extension of Credit made
thereafter.
"Approved Fund" has the meaning assigned thereto in Section 13.8.2.
"Arrangers" means Wachovia Capital Markets, LLC and X.X. Xxxxxx Securities
Inc., in their capacity as joint lead arrangers and joint bookrunners under this
Agreement.
"Assignee" has the meaning assigned thereto in Section 13.8.2.
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit H.
"Bankruptcy Code" means 11 U.S.C. xx.xx. 101 et seq., as amended from time
to time, and any successor statute.
"Bankruptcy Event" means any of the Events of Default set forth in Sections
11.1.8, 11.1.9 or 11.1.10, or any of those events which with the passage of
time, the giving of notice or any other condition, would constitute such an
Event of Default.
"Benefited Lender" has the meaning assigned thereto in Section 4.5.
"Board" means the Board of Governors of the Federal Reserve System of the
United States (or any successor thereof).
"Borrowers" means the Parent Borrower and the Foreign Subsidiary Borrowers;
"Borrower" means any one of them.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Charlotte, North Carolina are
authorized or required by law to close; provided that (a) with respect to any
borrowings, disbursements and payments in respect of and calculations, interest
rates and Interest Periods pertaining to Eurocurrency Rate Loans, Letters of
Credit or Swingline Loans denominated in Euros, Sterling or any Optional
Currency, such day is also a day on which banks are open for general business in
the principal financial center of the country of the relevant currency and in
the London interbank market, (b) with respect to notices and determinations in
connection with, and payments of principal and interest on, Loans denominated in
Euros, such day is also a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer System (TARGET) (or, if such clearing system
ceases to be operative, such other clearing system (if any) reasonably
determined by the Administrative Agent to be a suitable replacement) is open for
settlement of payment in Euros and (c) when used in connection with a Loan
denominated in Canadian Dollars or made to a Subsidiary Borrower that is
incorporated or otherwise organized under the laws of Canada or any political
subdivision thereof, such day is also a day on which banks are open for dealings
in deposits in Canadian Dollars in both Toronto and Montreal.
4
"Capital Lease" means, with respect to any Person who is a lessee of
property, any lease of any property that should, in accordance with GAAP, be
classified and accounted for as a capital lease on the lessee's balance sheet.
"Capital Lease Obligation" means the amount of the liability that is
capitalized in respect of any Capital Lease in accordance with GAAP.
"Cash Collateral Account" has the meaning assigned thereto in Section
11.2.2(a).
"Cash Equivalents" means (a) demand deposits maintained in the ordinary
course of business, (b) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition, (c) time deposits, certificates of deposit, master notes and
bankers acceptances of (i) any Lender, (ii) any commercial bank or trust company
(or any Affiliate thereof) having capital and surplus in excess of $500,000,000
or (iii) any bank whose short-term commercial paper rating from S&P is at least
A-2 or the equivalent thereof or from Xxxxx'x is at least P-2 or the equivalent
thereof (any such bank, trust company or Affiliate thereof being an "Approved
Institution"), in each case with maturities of not more than 270 days from the
date of acquisition, (d) commercial paper and variable or fixed rate notes
issued by any Approved Institution (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic corporation rated
A-2 (or similar ratings by successor rating agencies) or better by S&P or P-2
(or similar ratings by successor rating agencies) or better by Moody's and
maturing within six months of the date of acquisition, (e) repurchase agreements
entered into by any Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations, (f) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by Approved
Institutions, (g) obligations of states, municipalities, counties, political
subdivisions, agencies of the foregoing and other similar entities, rated at
least A, MIG-1 or MIG-2 by Moody's or at least A by S&P (or similar ratings by
successor rating agencies), (h) unrated obligations of states, municipalities,
counties, political subdivisions, agencies of the foregoing and other similar
entities, supported by irrevocable letters of credit issued by Approved
Institutions, or (i) unrated general obligations of states, municipalities,
counties, political subdivisions, agencies of the foregoing and other similar
entities, provided that the issuer has other outstanding general obligations
rated at least A, MIG-1 or MIG-2 by Moody's or A by S&P (or similar ratings by
successor rating agencies).
"Change in Control" shall be deemed to have occurred if (i) any person or
group of persons (within the meaning of Section 13(d) of the Securities Exchange
Act, as amended) shall obtain, directly or indirectly, beneficially or of
record, ownership or control in one or more series of transactions of shares
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Parent Borrower, provided that
such person or group of persons shall be deemed to have obtained such ownership
5
or control on the date thirty days after the date that such person or group of
persons actually obtains such ownership or control, (ii) a majority of the seats
on the board of directors of the Parent Borrower shall be occupied by persons
other than (x) directors on the date of this Agreement or (y) directors
initially nominated or appointed by action of the board of directors of the
Parent Borrower or (iii) there shall have occurred under any indenture or other
instrument evidencing Debt of the Parent Borrower or any Restricted Subsidiary
for borrowed money in excess of $25,000,000 a "change in control" (as defined in
such indenture or other instrument evidencing such Debt) beyond any grace period
permitted therein obligating the Parent Borrower or any Restricted Subsidiary to
repurchase, redeem or repay all or any part of such Debt or any capital stock
provided for therein.
"Class" when used in reference to any Loan, refers to whether such Loan, is
a Revolving A Credit Loan, Revolving B Credit Loan, Competitive Bid Loan,
Swingline Loan or a Loan made under Commitments established pursuant to Section
2.10 and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving A Commitment, a Revolving B Commitment or a Commitment
established pursuant to Section 2.10.
"Closing Date" has the meaning assigned thereto in Section 5.1.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified from
time to time.
"Commitment" means, (i) as to any Lender, the Revolving A Commitment and/or
the Revolving B Commitment of such Lender, or a Commitment established pursuant
to Section 2.10, (ii) as to any Issuing Lender, its L/C Commitment and (iii) as
to the Swingline Lender, its Swingline Commitment.
"Commitment Increase Notice" has the meaning assigned thereto in Section
2.9.1.
"Commitment Increase Supplement" means a Commitment Increase Supplement
executed by any Lender, the Parent Borrower and the Administrative Agent,
substantially in the form of Exhibit E, pursuant to Section 2.9.3.
"Competitive Bid Foreign Subsidiary Borrowers" has the meaning assigned
thereto in Section 2.11.2(a).
"Competitive Bid Loan" means any Dollar Competitive Bid Loan made pursuant
to Section 2.5.1 and any Foreign Currency Competitive Bid Loan made pursuant to
Section 2.5.2.
"Conduit Lender" means any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any amount
pursuant to Sections 4.7, 4.8, 4.9, 4.10 or 13.2 that would be greater than the
amount that the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender or (b) be deemed
to have any Commitment.
6
"Confidential Information Memorandum" means the Confidential Information
Memorandum dated July 2006 and furnished to certain Lenders.
"Consolidated Debt" means Debt of the Parent Borrower and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP after
giving appropriate effect to any outside minority interests in Restricted
Subsidiaries.
"Consolidated EBITDA" means, for the Parent Borrower and its Restricted
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense, (iii) depreciation, depletion and amortization, and (iv) all
other non-cash charges, determined on a consolidated basis in accordance with
GAAP after giving appropriate effect to any outside minority interests in the
Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, as applied to the
Parent Borrower and its Restricted Subsidiaries, all interest expense (whether
paid or accrued) and capitalized interest, including without limitation (a) the
amortization of debt discount and premium, (b) the interest component under
Capital Leases, and (c) the implied interest component, discount or other
similar fees or charges in connection with any asset securitization program in
each case determined on a consolidated basis in accordance with GAAP after
giving appropriate effect to any outside minority interests in the Restricted
Subsidiaries.
"Consolidated Lease Rentals" means Lease Rentals of the Parent Borrower and
its Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP after giving appropriate effect to any outside minority interests in
the Restricted Subsidiaries.
"Consolidated Net Income" means, for any period, the net income, after
taxes, of the Parent Borrower and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP after giving
appropriate effect to any outside minority interests in the Restricted
Subsidiaries, but excluding, to the extent reflected in determining such net
income, (a) any extraordinary gains and losses for such period, (b) any non-cash
impairment, valuation allowance, write-down or write-off in the book value of
any assets and (c) any non-cash loss in connection with the disposition of any
assets.
"Consolidated Net Worth" means, as of any date, as applied to the Parent
Borrower and its Restricted Subsidiaries, shareholders' equity or net worth as
determined and computed on a consolidated basis in accordance with GAAP after
giving appropriate effect to any outside minority interests in the Restricted
Subsidiaries, provided that in determining "Consolidated Net Worth" there shall
be (a) included any issuance of preferred stock by the Parent Borrower and (b)
excluded (i) any extraordinary gains and losses, (ii) any non-cash impairment,
valuation allowance, write-down or write-off in the book value of any assets,
(iii) any non-cash loss in connection with the disposition of any assets and
(iv) any other comprehensive income (loss) associated with pension plans or
postretirement benefit plans other than pensions; provided further, that the
items referred to in clauses (i), (ii), (iii) and (iv), shall be excluded only
to the extent that such items are recorded following the date hereof.
7
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Parent Borrower and its Restricted Subsidiaries, determined on
a consolidated basis in accordance with GAAP after giving appropriate effect to
any outside minority interests in the Restricted Subsidiaries.
"Contaminant" means any waste, hazardous material, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste that is regulated under any Environmental Law.
"Credit Facilities" means, collectively, the Revolving A Credit Facility,
the Revolving B Credit Facility and the L/C Facility or any of them, as the
context requires.
"Credit Parties" means, collectively, the Parent Borrower, the Foreign
Subsidiary Borrowers and the Guarantors; "Credit Party" means any one of them.
"Current SEC Reports" means the most recent report on Form 10-K, or any
successor form, and any amendments thereto filed by the Parent Borrower with the
Securities and Exchange Commission (the "Commission") and any reports on Forms
10-Q and/or 8-K, or any successor forms, and any amendments thereto, filed by
the Parent Borrower with the Commission after the date of such report on Form
10-K.
"CUSIP Bureau" means the Standard & Poor's CUSIP Service Bureau.
"Debt" of any Person means at any date, without duplication, the sum of the
following determined and calculated in accordance with GAAP: (a) all obligations
of such Person for borrowed money, (b) all obligations of such Person issued or
assumed as the deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (c) all Debt of others secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, provided that for purposes hereof
the amount of such Debt shall be calculated at the greater of (i) the amount of
such Debt as to which there is recourse to such Person and (ii) the fair market
value of the property which is subject to the Lien, (d) all Support Obligations
of such Person with respect to Debt of others, (e) the principal portion of all
obligations of such Person under Capital Leases, (f) the maximum amount of all
drafts drawn under standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person (to the extent unreimbursed),
and (g) the outstanding attributed principal amount under any asset
securitization program of such Person. The Debt of any Person shall include the
Debt of any partnership or joint venture in which such Person is a general
partner or a joint venturer, but only to the extent to which there is recourse
to such Person for payment of such Debt.
8
"Debtor Relief Laws" means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization,
administration, extraordinary administration or similar debtor relief laws of
the United States or other applicable jurisdictions (U.S. domestic or foreign)
from time to time in effect and affecting the rights of creditors generally.
"Default" means any of the events specified in Section 11.1 which with the
passage of time, the giving of notice or both, would constitute an Event of
Default.
"Defaulting Lender" means at any time any Lender that, within one Business
Day of when due, (i) has failed to make a Loan or purchase a Participation
Interest in a Swingline Loan or L/C Obligation required pursuant to the terms of
this Agreement, (ii) other than as set forth in clause (i) above, has failed to
pay to the Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Agreement or any other Loan Document unless such
amount is subject to a good faith dispute or (iii) has been deemed insolvent or
has become subject to a Bankruptcy Event.
"Documentation Agent" has the meaning assigned thereto in the recitals
hereto.
"Dollar Competitive Bid" means an offer by a Lender to make a Dollar
Competitive Bid Loan in accordance with Section 2.5.1.
"Dollar Competitive Bid Loan" means any Loan denominated in Dollars made
pursuant to Section 2.5.1.
"Dollar Competitive Bid Rate" means the rate of interest per annum
expressed as a percentage rate in the form of a decimal to no more than four
decimal places offered by a Lender making a Dollar Competitive Bid with respect
to any Dollar Competitive Bid Loan.
"Dollar Equivalent" means, on any Business Day with respect to any amount
denominated in Euros, Sterling or any Optional Currency, the amount of Dollars
that would be required to purchase the amount of such currency based upon the
spot selling rate at which the Multicurrency Agent offers to sell such currency
for Dollars in the London foreign exchange market at approximately 11:00 a.m.
London time on such Business Day for delivery two Business Days later, and, with
respect to any amount denominated in Dollars, such amount.
"Dollar Eurocurrency Rate Loans" means Eurocurrency Rate Loans denominated
in Dollars.
"Dollar Revolving Loan" means any Revolving Credit Loan denominated in
Dollars.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EMU Legislation" means the legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or more
member states.
9
"Environmental Laws" means any and all federal, state, local and foreign
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
binding interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
"ERISA Affiliate" means any Person who together with the Parent Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Euro" or "(euro)" means the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency Base Rate" means with respect to each day during each
Interest Period pertaining to a Eurocurrency Rate Loan, the rate per annum
determined on the basis of the rate for deposits in the relevant currency for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Telerate Page 3750 (or any successor page), or with
respect to any Eurocurrency Rate Loan denominated in Australian Dollars or Hong
Kong Dollars, the British Bankers Association Interest Settlement Rate for such
currency and such Interest Period, in each case as of 11:00 A.M., Local Time, on
the Quotation Day for such Interest Period. In the event that no such rate is
available, the "Eurocurrency Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurocurrency rates as
may be reasonably selected by the Administrative Agent or, in the absence of
such availability, by reference to the rate at which the Administrative Agent is
offered deposits in the relevant currency at or about 11:00 A.M., Local Time,
two Business Days prior to the beginning of such Interest Period in the
interbank eurocurrency market where its relevant eurocurrency and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.
"Eurocurrency Rate" means, for any Interest Period, with respect to a
Eurocurrency Rate Loan, the rate of interest per annum (rounded upward to the
next 1/1000th of 1 %) determined by the Administrative Agent as follows:
Eurocurrency Base Rate
-------------------------------------
Eurocurrency Rate = 1.00- Eurocurrency Reserve Percentage
The Eurocurrency Rate shall be adjusted automatically as to all
Eurocurrency Rate Loans then outstanding as of the effective date of any change
in the Eurocurrency Reserve Percentage.
"Eurocurrency Rate Loan" means a Revolving Credit Loan bearing interest at
a rate based upon the Eurocurrency Rate.
10
"Eurocurrency Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/1000th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement" has the meaning assigned thereto in the
recitals hereto.
"Extension of Credit" means, as to any Lender, (a) any component of such
Lender's Extensions of Credit or (b) the making of, or participation in, a Loan
by such Lender or the issuance or extension of, or participation in, a Letter of
Credit or Swingline Loan by such Lender, as the context may require.
"Extensions of Credit" means, as to any Lender at any time, an amount equal
to the sum of (a) the aggregate principal amount of all Revolving Credit Loans
made by such Lender then outstanding, (b) if such Lender is a Revolving A
Lender, such Lender's Revolving A Ratable Share of the Revolving A L/C
Obligations and Swingline Loans made under the Revolving A Credit Facility then
outstanding, (c) if such Lender is a Revolving B Lender, such Lender's Revolving
B Ratable Share of the Revolving X X/C Obligations made under the Revolving B
Credit Facility then outstanding, (d) the aggregate principal amount of all
Competitive Bid Loans made by such Lender then outstanding and (e) if such
Lender is the Swingline Lender, the aggregate principal amount of all Swingline
Loans then outstanding.
"Fee Letter" has the meaning assigned thereto in Section 13.19.1.
"Facility Fee" has the meaning assigned thereto in Section 4.2.
"FDIC" means the Federal Deposit Insurance Corporation, or any successor
thereto.
"Federal Funds Rate" means, for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by Wachovia from three federal funds
brokers of recognized standing selected by it.
"Finance Party" has the meaning assigned thereto in Section 4.10.3(a).
"Financial Letters of Credit" means any Letter of Credit issued to any
Person other than the Parent Borrower or any of its Affiliates to secure the
payment by any such Person of its financial obligations, or to provide counter
or "back-up" guarantees in support of bank guarantees, letters of credit or
other credit facilities afforded to the Parent Borrower or any of its
Subsidiaries, or to support local currency borrowings outside the United States.
11
"Fiscal Year" means the fiscal year of the Parent Borrower ending on
December 31 in any year.
"Foreign Currency Competitive Bid" means an offer by a Lender to make a
Foreign Currency Competitive Bid Loan in accordance with Section 2.5.2.
"Foreign Currency Competitive Bid Loan" means any Loan denominated in a
currency other than U.S. Dollars (as the Parent Borrower and the relevant Lender
may from time to time agree) made pursuant to Section 2.5.2 and all such Loans
collectively as the context requires.
"Foreign Currency Competitive Bid Rate" means the rate of interest per
annum expressed as a percentage rate in the form of a decimal to no more than
four decimal places offered by a Lender making a Foreign Currency Competitive
Bid with respect to any Foreign Currency Competitive Bid Loan.
"Foreign Currency Competitive Bid Request" has the meaning assigned thereto
in Section 2.5.2(b).
"Foreign Currency Loans" means, collectively, each Revolving Loan and
Swingline Loan denominated in Euros, Sterling or any Optional Currency and each
Foreign Currency Competitive Bid Loan.
"Foreign Currency Equivalent" shall mean, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable foreign
currency based upon the spot selling rate at which the Multicurrency Agent
offers to purchase such foreign currency with Dollars in the London foreign
exchange market at approximately 11:00 a.m. London time on such date of
determination for delivery two Business Days later.
"Foreign Lender" means any Lender (including any Participant) that is not a
"U.S. Person" as defined in Section 7701(a)(30) of the Code.
"Foreign Pension Plan" means any plan, fund (including, without limitation,
any superannuation fund) or other similar program established or maintained
outside the United States of America by the Parent Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of the Parent
Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"Foreign Subsidiary" means each Subsidiary of the Parent Borrower that is
not organized under the laws of the United States or any State or territory
thereof.
"Foreign Subsidiary Borrowers" means each Foreign Subsidiary that is a
Revolving Borrower and each Competitive Bid Foreign Subsidiary Borrower.
12
"Foreign Subsidiary Borrower Joinder Agreement" means any Foreign
Subsidiary Borrower Joinder Agreement executed and delivered by any Foreign
Subsidiary Borrower and the Parent Borrower, substantially in the form of
Exhibit J, pursuant to Section 5.3.
"Funding Office" means the office of the Administrative Agent or the
Multicurrency Agent specified in or determined in accordance with the provisions
of Section 13.1.3, or any subsequent office which shall have been specified by
the Administrative Agent for such purpose by written notice to the Borrowers and
the Lenders.
"GAAP" means generally accepted accounting principles in the United States,
as recognized by the American Institute of Certified Public Accountants and the
Financial Accounting Standards Board, consistently applied and maintained on a
consistent basis throughout the period indicated, subject to Section 1.4.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, in each case whether U.S. domestic or foreign, and any corporation
or other entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Guaranteed Obligations" means, without duplication, all of the Obligations
of the Borrowers to the Lenders and the Administrative Agent, whenever arising,
under this Agreement, the Notes or any other Loan Document (including, but not
limited to, obligations with respect to principal, interest and fees).
"Guarantor" means the Parent Borrower and each Subsidiary of the Parent
Borrower identified as a "Guarantor" on the signature pages hereto and any
Material Domestic Subsidiary that becomes a Guarantor hereunder after the
Closing Date by execution of a Guarantor Joinder Agreement pursuant to Section
8.10; provided that each of Pittston Minerals Group Inc. and Pittston Coal
Company shall not be a Guarantor hereunder.
"Guarantor Joinder Agreement" means a Guarantor Joinder Agreement executed
by a Guarantor and the Administrative Agent in substantially the form of Exhibit
F, as amended, restated, supplemented or otherwise modified.
"Hazardous Materials" means any substances or materials (a) which are or
become regulated or defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic substances
under any Environmental Law, (b) which are toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful
to human health or the environment and are or become regulated by any
Governmental Authority, (c) the presence of which require investigation or
remediation under any Environmental Law, (d) the discharge or emission or
release of which requires a permit or license under any Applicable Law or other
Governmental Approval, or (e) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
13
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or forward rate agreement, foreign currency agreement
or other agreement executed to protect the Parent Borrower or any Subsidiary
against fluctuations in the prices of commodities, and any confirming letter
executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified from time to time.
"Information" has the meaning assigned thereto in Section 13.9.
"Initial Loans" has the meaning assigned thereto in Section 2.9.4.
"Interest Coverage Ratio" means, as of the last day of any fiscal quarter,
the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in
each case for the period of four (4) consecutive fiscal quarters ending as of
such day.
"Interest Period" has the meaning assigned thereto in Section 4.1.2.
"Internal Control Event" means a "material weakness" (as defined in
Statement on Auditing Standards No. 60) in, or fraud that involves management or
other employees who have a significant role in, the Parent Borrower's internal
controls over financial reporting, in each case as described in Section 404 of
the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated
thereunder and the accounting and auditing principles, rules, standards and
practices promulgated or approved with respect thereto.
"Investment" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of indebtedness, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of such Person, (b) any deposit with, or
advance, loan or other extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other assets in the
ordinary course of business) or (c) any other capital contribution to or
investment in such Person.
"Issuing Lender" means Wachovia Bank, National Association and any other
Lender mutually acceptable and on terms satisfactory to such Lender, the Parent
Borrower and the Administrative Agent.
"Labor Laws" means any and all federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments and orders relating to
employment, equal employment opportunity, nondiscrimination, immigration, wages,
hours, benefits, collective bargaining, the payment of social security and
similar taxes, occupational safety and health, and plant closing.
"L/C Application" means an application, in the form specified by any
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"L/C Commitment" means the commitment of an Issuing Lender to issue Letters
of Credit as set forth in Article III.
14
"L/C Facility" means the letter of credit facilities established pursuant
to Article III hereof.
"L/C Fees" means the Revolving A L/C Fee and the Revolving X X/C Fee.
"L/C Obligations" means at any time, an amount equal to the sum of the
Revolving A L/C Obligations and the Revolving X X/C Obligations.
"L/C Termination Date" means the earlier of (a) the Termination Date and
(b) August 11, 2011.
"Lease" means a lease, other than a Capital Lease, of real or personal
property.
"Lease Rentals" for any period means the sum of the rental and other
obligations to be paid by the lessee under a Lease during the remaining term of
such Lease (excluding any extension or renewal thereof at the option of the
lessor or the lessee unless such option has been exercised), excluding any
amount required to be paid by the lessee (whether or not therein designated as
rental or additional rental) on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges.
"Lender" means each Person executing this Agreement as a Lender as set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Sections 2.9, 2.10, 4.7.6 or
13.8.2, other than any party hereto that ceases to be a party hereto pursuant to
any Assignment and Assumption; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender, each Issuing Lender and the Swingline Lender, in each case in
such capacity.
"Lending Office" means, with respect to any Lender, the office(s) of such
Lender maintaining such Lender's Loans made hereunder.
"Letters of Credit" means the collective reference to the Revolving A
Letters of Credit and the Revolving B Letters of Credit.
"Leverage Ratio" means, as of the date of any determination with respect to
the Parent Borrower, the ratio of (a) the sum of (i) Consolidated Debt as of
such date, plus (ii) the amount by which (A) the aggregate amount, as of the
preceding December 31 (or as of such date if such date is December 31), of
Consolidated Lease Rentals under non-cancellable Leases entered into by the
Parent Borrower or any of its Subsidiaries, discounted to such December 31 to
present value at 10% and net of aggregate minimum non-cancellable sublease
rentals, determined on a basis consistent with Note 14 to the Parent Borrower's
consolidated financial statements at and for the period ended December 31, 2005,
included in the Parent Borrower's 2005 annual report to shareholders, exceeds
(B) $400,000,000, to (b) the sum of (i) the amount determined pursuant to clause
(a) plus (ii) Consolidated Net Worth as of such date.
"LIBOR Market Index Rate" means, for any date, the rate for one month
Dollar, Sterling or Euro deposits, as applicable, as reported on Telerate page
3750 as of 11:00 a.m. London time, on such day, or if such day is not a London
Banking Day, then the immediately preceding London Banking Day (or if not so
reported, then as determined by the Administrative Agent from another recognized
source or interbank quotation).
15
"LIBOR Market Index Rate Loan" means any Swingline Loan bearing interest at
a rate determined by reference to the LIBOR Market Index Rate.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the L/C
Applications, any Guarantor Joinder Agreement, any Foreign Subsidiary Borrower
Joinder Agreement, the Fee Letter and each other document, instrument and
agreement executed and delivered by any Credit Party for the benefit of the
Administrative Agent or any Lender in connection with this Agreement, all as may
be amended, restated or otherwise modified.
"Loans" means the collective reference to the Revolving Credit Loans, the
Competitive Bid Loans and the Swingline Loans; "Loan" means any one of such
Loans.
"Local Time" means (a) in the case of Foreign Currency Loans (except for
the Foreign Currency Loans described in clause (b) below), London time, (b) in
the case of Foreign Currency Loans denominated in Canadian Dollars and made to a
Subsidiary Borrower that is incorporated or otherwise organized under the laws
of Canada or any political subdivision thereof, Toronto time and (c) in all
other cases, Charlotte, North Carolina time.
"London Banking Day" means any day on which banks in London are open for
general banking business, including dealings in foreign currency and exchange.
"Mandatory Costs Rate" means in relation to any Interest Period or other
period, the cost to any Lender of complying with all reserve, special deposit,
capital adequacy, solvency, liquidity ratios, fees or other requirements of or
imposed by the Bank of England, the Financial Services Authority, the European
Central Bank or any other governmental or regulatory authority for the time
being attributable to each Loan or any unpaid sum (rounded up if necessary to 4
decimal places) as conclusively determined by the applicable Agent.
"Margin Stock" has the meaning given such term under Regulation U of the
Board.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition or results of operations of the Parent Borrower and its
Restricted Subsidiaries taken as a whole that would impair the ability of the
Credit Parties to perform their obligations under the Loan Documents or (b) a
material adverse effect on the rights or remedies of the Lenders or the
Administrative Agent under the Loan Documents.
16
"Material Domestic Subsidiary" means any Subsidiary of the Parent Borrower
which (a) is organized under the laws of the United States, any state thereof or
the District of Columbia and (b) together with its Subsidiaries, (i) owns more
than twenty percent (20%) of Consolidated Total Assets or (ii) accounts for more
than twenty percent (20%) of Consolidated EBITDA.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Multicurrency Agent" means (a) in the case of Foreign Currency Loans
denominated in Canadian dollars, Wachovia Capital Finance Corporation (Canada),
and (b) for all other Foreign Currency Loans, Wachovia Bank, National
Association, London Branch, and any other financial institution designated by
the Administrative Agent (and reasonably acceptable to the Parent Borrower) to
act as its sub-agent and correspondent hereunder in respect of the disbursement
and payment of Foreign Currency Loans.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
400l(a)(3) of ERISA to which the Parent Borrower or any ERISA Affiliate is
making, has made, is accruing or has accrued an obligation to make,
contributions within the preceding six years.
"New Lender" has the meaning assigned thereto in Section 2.9.2.
"New Lender Supplement" means a New Lender Supplement executed by a New
Lender, the Parent Borrower and the Administrative Agent, substantially in the
form of Exhibit D, pursuant to Section 2.9.2.
"Notes" means any promissory note evidencing Loans.
"Notice of Account Designation" has the meaning assigned thereto in Section
2.2.3.
"Notice of Borrowing" has the meaning assigned thereto in Section 2.2.2.
"Notice of Conversion/Continuation" has the meaning assigned thereto in
Section 2.3.
"Notice of Prepayment" has the meaning assigned thereto in Section 2.4.3.
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing after
the filing of any bankruptcy or similar petition) the Loans, (b) the
Reimbursement Obligations in respect of the Letters of Credit and (c) all other
fees and commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Credit Parties to the Lenders or the Administrative Agent, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, in each case under or in respect of this Agreement or
any of the other Loan Documents.
"Offered Increase Amount" has the meaning assigned thereto in Section
2.9.1.
"Operating Lease" means, as to any Person, as determined in accordance with
GAAP, any lease of property (whether real, personal or mixed) by such Person as
lessee which is not a Capital Lease.
17
"Optional Currency" means any Revolving A Optional Currency and/or
Revolving B Optional Currency, as the context may require.
"Other Taxes" has the meaning assigned thereto in Section 4.10.2.
"Parent Borrower" means The Brink's Company, a Virginia corporation.
"Participant" has the meaning assigned thereto in Section 13.8.3.
"Participation Interest" means an Extension of Credit by a Lender by way of
a purchase of a participation interest in Letters of Credit or L/C Obligations
as provided in Section 3.4, in Swingline Loans as provided in Section 2.6(f) or
in any Obligations as provided in Section 4.5.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor agency.
"Pension Plan" means any employee pension benefit plan (within the meaning
of Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to
the provisions of Title IV of ERISA or Section 412 of the Code and is maintained
for the employees of the Parent Borrower or any of its ERISA Affiliates.
"Performance Letters of Credit" means any trade or documentary Letter of
Credit issued to secure the performance by any Person of its obligations, or to
guarantee or otherwise secure any Person's obligations relating to a bid,
advance payment or security deposit, retention release, custom and duty
deferment guaranty or bond, warranty or performance bond or other guaranty.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Plan" means at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Parent Borrower or any ERISA
Affiliate is (or if such plan were terminated at such time, would, under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" has the meaning assigned thereto in the definition of
"Alternate Base Rate".
"Prior Bank Commitment" means the Parent Borrower's committed credit
facility evidenced by the Existing Credit Agreement.
"Quotation Day" means in respect of the determination of the Eurocurrency
Rate for any Interest Period for Eurocurrency Rate Loans in Euros, Sterling or
any Optional Currency, the day on which quotations would ordinarily be given by
prime banks in the London interbank market for deposits in such currency for
delivery on the first day of such Interest Period for such Interest Period;
provided, that if quotations would ordinarily be given on more than one date,
the Quotation Day for such Interest Period shall be the last of such dates. On
the date hereof, the Quotation Day in respect of any Interest Period (i) for any
18
Optional Currency is customarily the last London Banking Day prior to the
beginning of such Interest Period which is (a) at least two London Banking Days
prior to the beginning of such Interest Period and (b) a day on which banks are
open for general banking business in Optional Currency; (ii) for Euros is
customarily the day which is two Target Operating Days prior to the first day of
such Interest Period and (iii) for Sterling is customarily the day which is the
first day of such Interest Period.
"Ratable Share" means, as to any Lender at any time, the ratio of (a) the
amount of the Commitment of such Lender to (b) the Aggregate Commitment.
"Real Property" of any Person means all the right, title and interest of
such Person in and to land, improvements and fixtures, including leaseholds.
"Refinancing" has the meaning assigned thereto in the recitals hereto.
"Register" has the meaning assigned thereto in Section 13.8.2.
"Reimbursement Obligation" means the obligation of any Revolving Borrower
to reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued for the account of such Revolving Borrower.
"Reportable Event" means an event described in Section 4043(c) of ERISA
with respect to a Pension Plan that is subject to Title IV of ERISA other than
those events as to which the thirty (30) day notice period is waived under
subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" means, at any date, any combination of Lenders that hold
more than fifty percent (50%) of the Aggregate Commitment then in effect or, if
the Aggregate Commitment has been terminated, any combination of Lenders who
collectively hold more than fifty percent (50%) of the aggregate unpaid
principal amount of the Extensions of Credit (excluding the aggregate unpaid
principal amount of Competitive Bid Loans); provided that, for purposes of
declaring the Loans to be due and payable pursuant to Article XI, and for all
purposes after the Loans become due and payable pursuant to Article XI, the
outstanding Competitive Bid Loans of the Lenders shall be included in the
Lenders' respective Extensions of Credit in determining the Required Lenders.
"Required Revolving A Lenders" means, at any date, any combination of
Revolving A Lenders that hold more than fifty percent (50%) of the Aggregate
Revolving A Commitment then in effect or, if the Aggregate Revolving A
Commitment has been terminated, any combination of Revolving A Lenders who
collectively hold more than fifty percent (50%) of the Aggregate Revolving A
Credit Exposure.
"Required Revolving B Lenders" means, at any date, any combination of
Revolving B Lenders that hold more than fifty percent (50%) of the Aggregate
Revolving B Commitment then in effect or, if the Aggregate Revolving B
Commitment has been terminated, any combination of Revolving B Lenders who
collectively hold more than fifty percent (50%) of the Aggregate Revolving B
Credit Exposure.
19
"Responsible Officer" means any of the following: the chief executive
officer or chief financial officer of the Parent Borrower or any other officer
of the Parent Borrower proposed by the Parent Borrower and reasonably acceptable
to the Administrative Agent.
"Restricted Subsidiary" means:
(i) any Subsidiary of the Parent Borrower at the date of this
Agreement other than a Subsidiary designated as an Unrestricted Subsidiary
in Schedule 1.1(c);
(ii) any other Material Domestic Subsidiary of the Parent Borrower;
(iii) any other Foreign Subsidiary Borrower;
(iv) any other Subsidiary of the Parent Borrower that is a Guarantor;
(v) any other Subsidiary of the Parent Borrower that owns, directly or
indirectly, any of the capital stock of any Guarantor; and
(vi) any other Person that becomes a Subsidiary of the Parent Borrower
after the date hereof unless prior to such Person becoming a Subsidiary the
board of directors of the Parent Borrower designates such Subsidiary as an
Unrestricted Subsidiary, in accordance with the following paragraph.
A Restricted Subsidiary (other than any Material Domestic Subsidiary, any
Subsidiary that is a Guarantor, Foreign Subsidiary Borrower, or any Subsidiary
that owns, directly or indirectly, any of the capital stock of any Guarantor)
may be designated by the board of directors of the Parent Borrower as an
Unrestricted Subsidiary by written notice to the Administrative Agent, but only
if (a) the Subsidiary owns no shares, directly or indirectly, of the Parent
Borrower or any Restricted Subsidiary and (b) immediately after such
designation, the Leverage Ratio is not greater than 0.60 to 1.00 and the
Interest Coverage Ratio is at least 3.00 to 1.00. An Unrestricted Subsidiary may
be designated by the board of directors of the Parent Borrower as a Restricted
Subsidiary by written notice to the Administrative Agent, but only if
immediately after such designation (x) the Parent Borrower shall be in
compliance with Section 9.2 and (y) the Leverage Ratio is not greater than 0.60
to 1.00 and the Interest Coverage Ratio is at least 3.00 to 1.00.
"Revolving A Borrower" means each of the Parent Borrower, each Subsidiary
Borrower designated as a Revolving A Borrower in Schedule 1.1(b), and any other
Foreign Subsidiary that has been designated as a Revolving A Borrower pursuant
to Section 2.11.1, other than any of the foregoing Subsidiaries that has ceased
to be a Revolving A Borrower as provided in such Section.
"Revolving A Commitment" means as to any Lender, the obligation of such
Lender to make Revolving A Credit Loans for the account of the Borrowers and
participate in Revolving A Letters of Credit and Swingline Loans made under the
Revolving A Credit Facility in an aggregate principal and/or stated amount at
any time outstanding not to exceed the amount set forth under "Revolving A
Commitment" opposite such Lender's name on Schedule 1.1(a) hereto as such amount
may be reduced or modified at any time or from time to time pursuant to the
terms hereof.
20
"Revolving A Credit Exposure" means, with respect to any Revolving A Lender
at any time, the Dollar Equivalent of the sum of (i) the aggregate principal
amount of all Loans made by such Revolving A Lender that are outstanding at such
time, (ii) such Lender's Revolving A Ratable Share of the Revolving A L/C
Obligations at such time and (iii) such Lender's Participation Interest in
Swingline Loans.
"Revolving A Credit Facility" means the multi-year revolving credit
facility established pursuant to Section 2.1.1(a) hereof.
"Revolving A Credit Loans" has the meaning assigned thereto in Section
2.1.1(a).
"Revolving A L/C Fee" has the meaning assigned thereto in Section 3.3.1.
"Revolving A L/C Obligations" means at any time, an amount equal to the
Dollar Equivalent of the sum of (a) the aggregate undrawn and unexpired amount
of the then outstanding Revolving A Letters of Credit and (b) the aggregate
amount of drawings under Revolving A Letters of Credit which have not then been
reimbursed pursuant to Section 3.5.
"Revolving A Lender" means each Lender with a Revolving A Commitment or
that holds a Revolving A Credit Loan.
"Revolving A Letters of Credit" has the meaning assigned thereto in Section
3.1.1.
"Revolving A Optional Currency" means the following currencies made
available to the Revolving A Borrowers for the making of Revolving A Credit
Loans: (i) solely as to each Revolving A Borrower, the local currency of the
jurisdiction in which such Revolving A Borrower is domiciled as set forth on
Schedule 1.1(b) and (ii) any other currency made available by the Revolving A
Lenders pursuant to Section 2.11.3.
"Revolving A Ratable Share" means, with respect to any Revolving A Lender
at any time, the ratio (expressed as a percentage) of (a) the Revolving A
Commitment of such Revolving A Lender at such time to (b) the Aggregate
Revolving A Commitment, provided that, if the Termination Date has occurred, the
Revolving A Ratable Share of each Revolving A Lender shall be determined based
upon the Revolving A Commitments most recently in effect, giving effect to any
assignments.
"Revolving Availability Period" means the period from and including the
Closing Date to but excluding the Termination Date.
"Revolving B Borrower" means each of the Parent Borrower, each Subsidiary
Borrower designated as a Revolving B Borrower in Schedule 1.1(b), and any other
Foreign Subsidiary that has been designated as a Revolving B Borrower pursuant
to Section 2.11.1, other than any of the foregoing Subsidiaries that has ceased
to be a Revolving B Borrower as provided in such Section.
"Revolving B Commitment" means as to any Lender, the obligation of such
Lender to make Revolving B Credit Loans for the account of the Parent Borrower
and participate in Revolving B Letters of Credit in an aggregate principal
and/or stated amount at any time outstanding not to exceed the amount set forth
under "Revolving B Commitment" opposite such Lender's name on Schedule 1.1(a)
hereto as such amount may be reduced or modified at any time or from time to
time pursuant to the terms hereof.
21
"Revolving B Credit Exposure" means, with respect to any Revolving B Lender
at any time, the Dollar Equivalent of the sum of (i) the aggregate principal
amount of all Loans made by such Revolving B Lender that are outstanding at such
time, and (ii) such Lender's Revolving B Ratable Share of the Revolving X X/C
Obligations at such time.
"Revolving B Credit Facility" means the multi-year revolving credit
facility established pursuant to Section 2.1.1(b) hereof.
"Revolving B Credit Loans" has the meaning assigned thereto in Section
2.1.1(b).
"Revolving X X/C Fee" has the meaning assigned thereto in Section 3.3.2.
"Revolving X X/C Obligations" means at any time, an amount equal to the sum
of (a) the aggregate undrawn and unexpired amount of the then outstanding
Revolving B Letters of Credit and (b) the aggregate amount of drawings under
Revolving B Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
"Revolving B Lender" means each Lender with a Revolving B Commitment or
that holds a Revolving B Credit Loan.
"Revolving B Letters of Credit" has the meaning assigned thereto in Section
3.1.2.
"Revolving B Optional Currency" means the following currencies made
available to the Revolving B Borrowers for the making of Revolving B Credit
Loans: (i) solely as to each Revolving B Borrower, the local currency of the
jurisdiction in which such Revolving B Borrower is domiciled as set forth on
Schedule 1.1(b) and (ii) any other currency made available by the Revolving B
Lenders pursuant to Section 2.11.3.
"Revolving B Ratable Share" means, with respect to any Revolving B Lender
at any time, the ratio (expressed as a percentage) of (a) the Revolving B
Commitment of such Revolving B Lender at such time to (b) the Aggregate
Revolving B Commitment, provided that, if the Termination Date has occurred, the
Revolving B Ratable Share of each Revolving B Lender shall be determined based
upon the Revolving B Commitments most recently in effect, giving effect to any
assignments.
"Revolving Borrower" means either a Revolving A Borrower or a Revolving B
Borrower.
"Revolving Credit Facilities" means the collective reference to the
Revolving A Credit Facility and the Revolving B Credit Facility.
"Revolving Credit Loan" means any loan (other than a Competitive Bid Loan)
made to any Revolving Borrower pursuant to Section 2.2.
22
"Sale and Leaseback Transaction" means the sale by the Parent Borrower or a
Restricted Subsidiary to any Person (other than any Credit Party) of any
property or asset and, as part of the same transaction or series of
transactions, the leasing as lessee by the Parent Borrower or any Restricted
Subsidiary of the same or another property or asset which it intends to use for
substantially the same purpose.
"S&P" means Standard & Poor's Ratings Services.
"Specified Maturity Date" means August 11, 2011.
"Sterling" or "(pound)" means the lawful currency of the United Kingdom.
"Subsequent Borrowings" has the meaning assigned thereto in Section 2.9.4.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case of a partnership, more than fifty percent
(50%) of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise qualified, references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the Parent
Borrower.
"Subsidiary Borrowers" means Subsidiaries of the Parent Borrower that are
either a Revolving A Borrower or a Revolving B Borrower.
"Support Obligation" means, with respect to any Person, at any date without
duplication, any Debt of another Person that is guaranteed, directly or
indirectly in any manner, by such Person or endorsed (otherwise than for
collection or deposit in the ordinary course of business) or discounted with
recourse by such Person or any Debt of another Person that has the substantially
equivalent or similar economic effect of being guaranteed by such Person or of
otherwise making such Person contingently liable therefor, through an agreement
or otherwise, including, without limitation, an agreement (i) to purchase, or to
advance or supply funds for the payment or purchase of, such Debt, or (ii) to
make any loan, advance, capital contribution or other investment in such other
Person to assure a minimum equity, asset base, working capital or other balance
sheet condition for any date, or to provide funds for the payment of any
liability, dividend or stock liquidation payment, or otherwise to supply funds
to or in any manner invest in such other Person (unless such investment is
expected to constitute a permitted investment under Section 9.10).
"Swingline Commitment" means the agreement of the Swingline Lender to make
Swingline Loans pursuant to Section 2.6 in an aggregate principal amount at any
time outstanding not to exceed the amount set forth under "Swingline Commitment"
opposite such Lender's name on Schedule 1.1(a) hereto as such amount may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
23
"Swingline Lender" means Wachovia, in its capacity as the Swingline Lender
under Section 2.6, and its successor or successors in such capacity.
"Swingline Loan" means a LIBOR Market Index Loan made by the Swingline
Lender pursuant to Section 2.6.
"Swingline Loan Request" has the meaning set forth in Section 2.6(b).
"Swingline Termination Date" means the earlier of (i) fifth Business Day
prior to the Specified Maturity Date and (ii) the Termination Date.
"Swiss Guidelines" has the meaning assigned thereto in Section 13.8.2(g).
"Swiss Subsidiary" has the meaning assigned thereto in Section 13.8.2(g).
"Syndication Agents" has the meaning assigned thereto in the recitals
hereto.
"Target Operating Day" any day that is not (a) a Saturday or Sunday, (b)
Christmas Day or New Year's Day or (c) any other day on which the Trans-European
Real-time Gross Settlement Operating System (or any successor settlement system)
is not operating (as reasonably determined by the Administrative Agent).
"Taxes" has the meaning assigned thereto in Section 4.10.1.
"Termination Date" means the earliest of the dates referred to in Section
2.7.
"Type" (i) when used in reference to any Loan, refers to whether the rate
of interest on such Loan, or on the Loans comprising any borrowing, is
determined by reference to the Eurocurrency Rate or the Alternate Base Rate and
(ii) when used in reference to any Letter of Credit, refers to whether it is a
Revolving A Letter of Credit or a Revolving B Letter of Credit.
"UCC" means, with respect to any Letter of Credit, the Uniform Commercial
Code as in effect in the State in which the corporate headquarters of the
relevant Issuing Lender is located or such other jurisdiction as is acceptable
to the relevant Issuing Lender, as amended, restated or otherwise modified from
time to time.
"Unfunded Current Liability" of any Pension Plan means the amount, if any,
by which the actuarial present value of the accumulated plan benefits under the
Pension Plan as of the close of its most recent year, determined in accordance
with actuarial assumptions at such time consistent with Statement of Financial
Accounting Standards No. 87 (irrespective of any subsequent changes to or
replacements of such Statement), exceeds the sum of (a) the market value of the
assets allocable thereto and (b) $5,000,000.
"Uniform Customs" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
24
"United States" and "U.S." mean the United States of America.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"USA Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, 107
P.L. 56, as amended.
"Utilization" means, for any day, (i) with respect to the Revolving A
Credit Facility, (a) (x) the Dollar Equivalent of the aggregate principal amount
of all outstanding Loans made by Revolving A Lenders plus (y) the Dollar
Equivalent of the then outstanding Revolving A L/C Obligations and Swingline
Loans divided by (b) the Aggregate Revolving A Commitment, the result being
expressed as a percentage, and (ii) with respect to the Revolving B Credit
Facility, (a) (x) the Dollar Equivalent of the aggregate principal amount of all
outstanding Loans made by Revolving B Lenders plus (y) the Dollar Equivalent of
the then outstanding Revolving X X/C Obligations with respect thereto divided by
(b) the Aggregate Revolving B Commitment, the result being expressed as a
percentage.
"Utilization Fee" means, for any day, a per annum rate equal to the
Applicable Percentage for the Utilization Fee on such day.
"Wachovia" means Wachovia Bank, National Association, and its successors
and assigns.
Section 1.2 General.
Unless otherwise specified, a reference in this Agreement to a particular
section, subsection, Schedule or Exhibit is a reference to that section,
subsection, Schedule or Exhibit of this Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, feminine and neuter. Any reference
herein to "Charlotte, North Carolina time" or "London time" shall refer to the
applicable time of day in Charlotte, North Carolina or London, England, as
applicable.
Section 1.3 Other Definitions and Provisions.
1.3.1. Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
provided herein when used in this Agreement and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
1.3.2. Miscellaneous. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
25
Section 1.4 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Administrative
Agent or the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 7.1 (or, prior to the delivery of the first financial statements
pursuant to Section 7.1, consistent with the annual audited financial statements
referenced in Section 6.1.7); provided, however, if (a) the Parent Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 60 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Parent Borrower to
the Administrative Agent or the Lenders as to which no such objection shall have
been made.
Section 1.5 Redenomination of Certain Foreign Currencies and
Computation of Dollar Equivalents.
(a) Each obligation of a Credit Party to make a payment denominated in
the currency of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euros at
the time of such adoption (in accordance with Applicable Law). If, in relation
to the currency of any such member state, the basis of accrual of interest
expressed in this Agreement in respect of that currency shall be inconsistent
with any convention or practice in the London interbank market for the basis of
accrual of interest in respect of the Euro, such expressed basis shall be
replaced by such convention or practice with effect from the date on which such
member state adopts the Euro as its lawful currency; provided that if any
Foreign Currency Loan in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Foreign Currency Loan, at the end of the then current Interest Period.
(b) Each provision of this Agreement relating solely to payments
denominated in Euros shall be subject to such reasonable changes of construction
as the Administrative Agent and the Parent Borrower may from time to time
mutually specify to be appropriate to reflect the adoption of the Euro by any
member state of the European Union and any relevant market conventions or
practices relating to the Euro.
(c) References herein to minimum Dollar amounts and integral multiples
stated in Dollars, where they shall also be applicable to any other currency,
shall be deemed to refer to approximate Foreign Currency Equivalent. Wherever in
this Agreement an amount, such as a minimum or maximum limitation on Debt
permitted to be incurred or Investments permitted to be made hereunder, is
expressed in Dollars, it shall be deemed to refer to the Dollar Equivalent
thereof.
26
ARTICLE II
CREDIT FACILITIES
Section 2.1 Amount and Terms of Credit.
2.1.1. Description of Facilities. Upon the terms and subject to the
conditions set forth in this Agreement:
(a) the Revolving A Lenders hereby grant to the Revolving A Borrowers
a five-year revolving credit facility (the "Revolving A Credit Facility")
pursuant to which each Revolving A Lender severally agrees to make revolving
credit loans (the "Revolving A Credit Loans"), from time to time during the
Revolving Availability Period, to each Revolving A Borrower in Dollars, Euros,
Sterling or any Revolving A Optional Currency as set forth on Schedule 1.1(b),
in each case in an aggregate principal amount at any time outstanding that will
not result in: (1) the Aggregate Revolving A Credit Exposure exceeding the
Aggregate Revolving A Commitment; or (2) such Lender's Revolving A Credit
Exposure exceeding its Revolving A Commitment. Each Revolving A Credit Loan made
by a Revolving A Lender shall be in a principal amount equal to such Lender's
Revolving A Ratable Share of the aggregate principal amount of Revolving A
Credit Loans requested on such occasion; and
(b) the Revolving B Lenders hereby grant to the Revolving B Borrowers
a five-year revolving credit facility (the "Revolving B Credit Facility")
pursuant to which each Revolving B Lender severally agrees to make revolving
credit loans (the "Revolving B Credit Loans"), from time to time during the
Revolving Availability Period, to each Revolving B Borrower in Dollars, Euros,
Sterling or any Revolving B Optional Currency as set forth on Schedule 1.1(b),
in each case in an aggregate principal amount at any time outstanding that will
not result in (1) the Aggregate Revolving B Credit Exposure exceeding the
Aggregate Revolving B Commitment; or (2) such Lender's Revolving B Credit
Exposure exceeding its Revolving B Commitment. Each Revolving B Credit Loan made
by a Revolving B Lender shall be in a principal amount equal to such Lender's
Revolving B Ratable Share of the aggregate principal amount of Revolving B
Credit Loans requested on such occasion.
2.1.2. Application of Facilities. The Credit Facilities established
hereby shall be used by the Borrowers and their Subsidiaries for any lawful
purpose, including, without being limited to:
(a) refinance existing Debt of the Parent Borrower and its
Subsidiaries outstanding under the Prior Bank Commitment; and
(b) finance the working capital, capital expenditures, acquisitions
permitted under this Agreement and general corporate purposes of the Borrowers
and their Subsidiaries; provided, however, that no portion of the proceeds of
any Loan shall be used to fund any such acquisition unless at such time (to the
extent required by law and/or the corporate governance or other organizational
documents of the subject company) the board of directors of the subject company
shall have either (i) approved such acquisition or recommended it to
shareholders or (ii) taken a position that it will neither recommend for or
against such acquisition; and, accordingly, each of the Borrowers shall apply
all amounts borrowed by it hereunder in conformity with such purposes and
neither the Administrative Agent nor any Lender shall be obligated to see to the
application thereof.
27
2.1.3. Lender Agreement. Each Lender severally agrees, and by making
any advance hereunder shall be deemed severally to represent, that: (i) none of
the funds made available by such Lender with respect to any Revolving Credit
Loan or any Competitive Bid Loan constitute "plan assets" within the meaning of
29 C.F.R. Section 2510.3-101, (ii) it qualifies as a "professional market party"
as defined in the Exemption Decree to the 1992 Credit Supervision Act
(Vrijstellingsregeling wet toezicht kredietwezen 1992), State Gazette
(Staatscourant) 2002, 120, as amended by State Gazette (Staatscourant) 2005,
247, and as amended by the Dutch Central Bank's Policy Guidelines (issued in
relation to the Dutch Exemption Regulation) dated 29 December 2004 (Beleidsregel
2005 kernbegrippen markttoetreding en handhaving Wtk 1992), as amended from time
to time and (iii) under Applicable Law in effect as of the Closing Date, it has
the full power and authority to make Loans and other Extensions of Credit into
the jurisdictions and in the currencies made available in its Class. If the
representation set forth in clause (iii) above at any time proves to be false as
of the Closing Date for any Lender, then such Lender will, at no expense to the
Credit Parties and prior to such Lender becoming a Defaulting Lender hereunder,
(A) promptly give notice thereof to the Administrative Agent and the Parent
Borrower, and (B) either obtain a replacement commitment from an Assignee
pursuant to Section 13.8.2 that is authorized to lend in all such jurisdictions
and currencies made available in its Class or arrange for another Lender or
other financial institution to make or continue Loans on behalf of such Lender,
in each case reasonably acceptable to the Parent Borrower and the Administrative
Agent. The remedy set forth in Section 4.7.6 shall be the Credit Parties' sole
and exclusive remedy for any Lender's breach of the representation set forth in
clause (ii) and (iii) above.
Section 2.2 Procedure for Advances of Revolving Credit Loans.
2.2.1. Borrowing Options.
(a) Each Revolving Credit Loan shall be made as part of a borrowing
consisting of Revolving Credit Loans of the same Class and Type made by the
Lenders ratably in accordance with their Revolving A Ratable Share or Revolving
B Ratable Share, as the case may be. The failure of any Lender to make any
Revolving Credit Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitment of each Lender
is several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 4.7, each borrowing of Revolving Credit Loans
shall be comprised entirely of (A) in the case of a borrowing denominated in
Dollars, Eurocurrency Rate Loans or Alternate Base Rate Loans as the applicable
Borrower may request in accordance herewith, and (B) in the case of a borrowing
denominated in Euros, Sterling or any Optional Currency, Eurocurrency Rate
Loans. Each Lender at its option may satisfy its obligation to make any
Revolving Credit Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Revolving Credit Loan (in which case all payments of
principal and interest with respect to such Loan shall be owed to such branch or
Affiliate); provided that any exercise of such option shall not reduce the
obligation of the applicable Revolving Borrower to repay such Loan in accordance
with the terms of this Agreement.
28
(c) Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
15 borrowings of Eurocurrency Rate Loans outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Revolving Borrower shall be entitled to request, or to elect to convert or
continue, any borrowing of Revolving Credit Loans if the Interest Period
requested with respect thereto would end after the Specified Maturity Date.
2.2.2. Requests for Revolving Credit Loans.
(a) The Parent Borrower (on its own behalf or on behalf of any
Subsidiary Borrower) shall give the Administrative Agent irrevocable prior
written notice in the form attached hereto as Exhibit A (a "Notice of
Borrowing") not later than (i) 11:00 a.m., Charlotte, North Carolina time, on
the same Business Day as each Alternate Base Rate Loan, (ii) 12:00 noon,
Charlotte, North Carolina time, at least three (3) Business Days before each
Dollar Eurocurrency Rate Loan and (iii) 4:00 p.m., Charlotte, North Carolina
time, at least five (5) Business Days before each Revolving Loan denominated in
Euros, Sterling or any Optional Currency, in each case, of its intention to
borrow, specifying (A) the Borrower on whose behalf the Parent Borrower is
requesting such borrowing; (B) the date of such borrowing, which shall be a
Business Day, (C) whether the requested borrowing is to be a borrowing of
Revolving A Credit Loans and/or Revolving B Credit Loans, (D) the amount of such
borrowing, which shall be, (x) with respect to Alternate Base Rate Loans, in an
aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in
excess thereof, and (y) with respect to Eurocurrency Rate Loans, in an aggregate
principal amount of the Dollar Equivalent of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or such other amount as may be satisfactory to the
Administrative Agent), (E) whether such Revolving Credit Loan is to be a
Eurocurrency Rate Loan or an Alternate Base Rate Loan, (F) in the case of a
Eurocurrency Rate Loan, (x) the currency in which such Eurocurrency Rate Loan is
to be denominated and (y) the duration of the Interest Period applicable
thereto, (G) in the case of a requested Revolving Credit Loan to a Foreign
Subsidiary, the name and location of such Foreign Subsidiary, (H) the location
and number of the applicable Revolving Borrower's account to which funds are to
be disbursed and (I) the Dollar Equivalent of the aggregate principal amount (in
each relevant currency) of all Competitive Bid Loans to the Borrowers then
outstanding. Notices received after the applicable time set forth above shall be
deemed received on the next Business Day. The Administrative Agent shall
promptly notify the Lenders of each Notice of Borrowing and in any case, no
later than one Business Day after receipt of a Notice of Borrowing for Revolving
Credit Loans denominated in Euros, Sterling or any Optional Currency.
(b) The Administrative Agent shall calculate the Dollar Equivalent of
each outstanding Foreign Currency Loan (i) as of the date of any Notice of
Borrowing or Notice of Conversion/Continuation, (ii) at the end of each calendar
month and (iii) at such time and from time to time as the Administrative Agent
shall determine or the Required Lenders or Parent Borrower shall require, and in
each case, shall notify the Parent Borrower of such calculation, and such
calculation shall be the basis of any determination of the availability of
credit hereunder.
29
2.2.3. Disbursement of Revolving Credit Loans. Upon receipt of any
notice pursuant to the last sentence of Section 2.2.2(a), each Lender (or its
respective domestic or foreign branch or Affiliate) will make available to the
Administrative Agent, for the account of the relevant Borrower at the relevant
Funding Office, in funds immediately available to the Administrative Agent and
in the applicable currency, such Lender's Revolving A Ratable Share of the
Revolving A Credit Loans to be made on such borrowing date or such Lender's
Revolving B Ratable Share of the Revolving B Credit Loans to be made on such
borrowing date, as applicable, no later than 2:00 p.m., Charlotte, North
Carolina time, on the proposed borrowing date of an Alternate Base Rate Loan or
Dollar Eurocurrency Rate Loan, and no later than 10:00 a.m., Charlotte, North
Carolina time, on the proposed borrowing date of an Eurocurrency Rate Loan
denominated in Euros, Sterling or any Optional Currency. Each Revolving Borrower
hereby irrevocably authorizes the Administrative Agent to disburse the proceeds
of each borrowing requested for such Revolving Borrower pursuant to this Section
2.2 in immediately available funds by crediting or wiring such proceeds to the
deposit account of the such Revolving Borrower identified in the most recent
notice of account designation, substantially in the form of Exhibit B hereto (a
"Notice of Account Designation"), delivered by such Revolving Borrower to the
Administrative Agent, or as may be otherwise agreed upon from time to time by
such Revolving Borrower and the Administrative Agent. Subject to Section 4.6
hereof, the Administrative Agent shall not be obligated to disburse the portion
of the proceeds of any Revolving A Credit Loan or Revolving B Credit Loan
requested pursuant to this Section 2.2 for which any Lender is responsible to
the extent that such Lender has not made available to the Administrative Agent
its Revolving A Ratable Share of such Revolving A Credit Loan or its Revolving B
Ratable Share of such Revolving B Credit Loan, as applicable.
Section 2.3 Conversion and Continuation of Revolving Credit Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, and subject to the terms of this Agreement, each Borrower shall have
the option (a) to convert all or any portion of its outstanding Revolving Credit
Loans made as Alternate Base Rate Loans in a principal amount equal to
$5,000,000 or any whole multiple of $1,000,000 in excess thereof (or such other
amount as may be satisfactory to the Administrative Agent) into one or more
Dollar Eurocurrency Rate Loans and (b)(i) to convert all or any part of its
outstanding Dollar Eurocurrency Rate Loans in a principal amount equal to
$1,000,000 or a whole multiple of $100,000 in excess thereof into Alternate Base
Rate Loans or (ii) to continue Eurocurrency Rate Loans as Eurocurrency Rate
Loans in the same currency for an additional Interest Period; provided that if
any conversion or continuation is made prior to the expiration of any Interest
Period, the relevant Borrower shall pay any amount required to be paid pursuant
to Section 4.8 hereof. Whenever any Borrower desires to convert or continue
Revolving Credit Loans as provided above, such Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit G (a "Notice of Conversion/Continuation") not later than (i) 11:00 a.m.,
Charlotte, North Carolina time, on the same Business Day in the case of a
conversion of a Dollar Eurocurrency Rate Loan to a Alternate Base Rate Loan,
(ii) 12:00 noon, Charlotte, North Carolina time, at least three (3) Business
Days before the proposed conversion into or a continuation of a Dollar
Eurocurrency Rate Loan and (iii) 4:00 p.m., Charlotte, North Carolina time, at
least five (5) Business Days before the proposed continuation of any
Eurocurrency Rate Loan denominated in Euros, Sterling or any Optional Currency.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
30
Section 2.4 Repayment of Loans.
2.4.1. Repayment on Termination Date. Each Borrower agrees to repay
the outstanding principal amount of all Loans made to it under, and its
Reimbursement Obligations under, the Revolving Credit Facilities in full on the
Termination Date, with all accrued but unpaid interest thereon.
2.4.2. Mandatory Repayment of Loans.
(a) If at any time the Aggregate Revolving A Credit Exposure exceeds
105% (or if none of such Aggregate Revolving A Credit Exposure is denominated in
Euros, Sterling or any Optional Currency, 100%) of the Aggregate Revolving A
Commitment, the relevant Borrower or Borrowers agree immediately upon notice
from the Administrative Agent, by payment to the Administrative Agent for the
account of the Revolving A Lenders, to repay Revolving A Credit Loans, Swingline
Loans or Competitive Bid Loans and/or furnish cash collateral as described in
Section 2.4.2(c), in the Dollar Equivalent of the amount of such excess. Any
repayment of Eurocurrency Rate Loans pursuant to this Section 2.4.2(a) other
than on the last day of the Interest Period applicable thereto shall be
accompanied by any amount required to be paid pursuant to Section 4.8 hereof.
(b) If at any time the Aggregate Revolving B Credit Exposure exceeds
105% (or if none of such Aggregate Revolving B Credit Exposure is denominated in
Euros, Sterling or any Optional Currency, 100%) of the Aggregate Revolving B
Commitment, the relevant Borrower or Borrowers agree immediately upon notice
from the Administrative Agent, by payment to the Administrative Agent for the
account of the Revolving B Lenders, to repay Revolving B Credit Loans or
Competitive Bid Loans and/or furnish cash collateral as described in Section
2.4.2(c), in the Dollar Equivalent of the amount of such excess. Any repayment
of Eurocurrency Rate Loans pursuant to this Section 2.4.2(b) other than on the
last day of the Interest Period applicable thereto shall be accompanied by any
amount required to be paid pursuant to Section 4.8 hereof.
(c) (i) As an alternative to repaying Loans as prescribed in Section
2.4.2(a) and Section 2.4.2(b), the Parent Borrower may deposit with the
Administrative Agent cash collateral in the Dollar Equivalent of the amount in
excess as described in such Sections, it being understood that if such excess
remains outstanding for more than 45 days, the Administrative Agent shall apply
any and all such cash collateral to repay the outstanding Loans of the relevant
Class in the amount of such excess. Until such time, such cash collateral shall
be maintained and applied in accordance with Section 11.2.2.
2.4.3. Optional Repayments. Each Revolving Borrower may at any time
and from time to time repay the Revolving Credit Loans made to it, in whole or
in part, upon (i) at least three (3) Business Days irrevocable notice by the
Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary
Borrower) to the Administrative Agent with respect to Eurocurrency Rate Loans
(which shall include Dollar Eurocurrency Rate Loans and/or Eurocurrency Rate
31
Loans denominated in Euros, Sterling or any Optional Currency) and (ii) upon one
(1) Business Day irrevocable notice by the Parent Borrower (on its own behalf or
on behalf of the relevant Subsidiary Borrower) to the Administrative Agent with
respect to Alternate Base Rate Loans, in the form attached hereto as Exhibit C
(a "Notice of Prepayment") specifying the date and amount of repayment and
whether the repayment is of Revolving A Credit Loans and/or Revolving B Credit
Loans and of Eurocurrency Rate Loans and/or Alternate Base Rate Loans, or a
combination thereof, and, if of a combination, the amount allocable to each.
Upon receipt of such notice, the Administrative Agent shall promptly notify each
Revolving A Lender or Revolving B Lender, as applicable. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
set forth in such notice. Partial repayments shall be in an aggregate amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans, and $5,000,000 or a whole multiple of $l,000,000 in
excess thereof (or such other amount as may be satisfactory to the
Administrative Agent) with respect to Eurocurrency Rate Loans.
2.4.4. Limitation on Repayment of Eurocurrency Rate Loans. A Revolving
Borrower may not repay any Eurocurrency Rate Loan on any day other than on the
last day of the Interest Period applicable thereto unless such repayment is
accompanied by any amount required to be paid pursuant to Section 4.8 hereof.
2.4.5. Limitation on Repayment of Competitive Bid Loans. A Borrower
may not repay any Competitive Bid Loan on any day other than on the last day of
the Interest Period applicable thereto except, and on such terms, as agreed to
by the Parent Borrower (on its own behalf or on behalf of the relevant
Subsidiary Borrower) and the Lender which made such Competitive Bid Loan.
Section 2.5 Competitive Bid Loans and Procedures.
2.5.1. Dollar Competitive Bid Loans
(a) Subject to the terms and conditions set forth herein, from time to
time until the expiration or termination of the Aggregate Commitment, each
Lender may (but shall not have any obligation to) submit Dollar Competitive Bids
under its respective Revolving Credit Facility, and the Parent Borrower may (but
shall not have any obligation to) accept Dollar Competitive Bids and borrow
Dollar Competitive Bid Loans (in each case, on its own behalf or on behalf of
the relevant Subsidiary Borrower); provided that after giving effect thereto,
(i) the Dollar Equivalent of the Aggregate Revolving A Credit Exposure or
Aggregate Revolving B Credit Exposure, as the case may be, shall not at any time
exceed the Aggregate Revolving A Commitment or Aggregate Revolving B Commitment,
as the case may be and (ii) there shall not be outstanding at any time more than
5 Competitive Bid Loans. Unless otherwise mutually agreed with the
Administrative Agent, the Parent Borrower shall administer the bidding and
acceptance process for Dollar Competitive Bid Loans in accordance with the terms
and conditions of this Section 2.5.1.
32
(b) Each Dollar Competitive Bid shall be submitted by telecopy or
electronic mail to the Parent Borrower or by telephone (promptly confirmed in
writing to the Parent Borrower) not later than 10:30 a.m. (Charlotte, North
Carolina time) on the proposed date of such borrowing, which shall be a Business
Day, and, unless timely accepted, shall automatically lapse at 11:30 a.m.
(Charlotte, North Carolina time) on such date. A Dollar Competitive Bid may be
for an amount greater than (or less than) such Lender's Commitment. Each Dollar
Competitive Bid shall be irrevocable and shall specify (i) the principal amount
(which shall be a minimum of $500,000 and an integral multiple of $100,000 in
excess thereof) of the Dollar Competitive Bid Loan or Loans that the applicable
Lender is willing to make, (ii) the Dollar Competitive Bid Rate or Rates at
which such Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places), (iii) the Interest Period applicable to each such Loan and the last day
thereof, (iv) the name of the relevant Borrower, (v) the location and number of
the applicable Borrower's account to which funds are to be disbursed and (vi)
the number of all Competitive Bid Loans then outstanding and the Dollar
Equivalent of the aggregate principal amount thereof. The Parent Borrower may
accept or reject any Dollar Competitive Bid; provided that the Parent Borrower
shall not accept a Dollar Competitive Bid made at a particular Dollar
Competitive Bid Rate if the Parent Borrower rejects a Dollar Competitive Bid
made at a lower Dollar Competitive Bid Rate, unless the Parent Borrower
determines in its good faith judgment that the overall cost of accepting the
Dollar Competitive Bid made at the lower Dollar Competitive Bid Rate (due to
fees or other expenses in connection with such Dollar Competitive Bid) exceeds
that of the Dollar Competitive Bid made at the higher Dollar Competitive Bid
Rate.
(c) The provisions of the preceding paragraph notwithstanding, if
Dollar Competitive Bids were made by Lenders on a Business Day with respect to a
particular Interest Period and such bids lapsed at 11:30 a.m. (Charlotte, North
Carolina time) on such Business Day pursuant to the preceding paragraph, the
Parent Borrower may, in its sole and absolute discretion, subject only to the
provisions of this paragraph, contact one or more of such Lenders, by telephone,
telecopy or email, prior to 3:00 p.m. (Charlotte, North Carolina time) on such
Business Day to request that such Lenders reinstate such Dollar Competitive Bids
for such Interest Period or provide new Dollar Competitive Bids for such
Interest Period on such Business Day. Each Dollar Competitive Bid so reinstated
shall be submitted by telecopy or electronic mail to the Parent Borrower or by
telephone (promptly confirmed in writing to the Parent Borrower) on the proposed
date of such borrowing. Notwithstanding anything to the contrary in any Dollar
Competitive Bid reinstated or submitted pursuant to this paragraph, each such
Dollar Competitive Bid shall be irrevocable in respect of the date on which it
is to reinstated or submitted and shall automatically expire at the earlier of
(a) 3:00 p.m. (Charlotte, North Carolina time) on the date submitted and (b) one
hour after such Dollar Competitive Bid is received by the Parent Borrower.
(d) The Parent Borrower may, in its sole and absolute discretion,
subject only to the provisions of this paragraph, accept any Dollar Competitive
Bid submitted under this Section by notifying the Lender submitting such Dollar
Competitive Bid by telephone, telecopy or email not later than the expiration
time of such bid, which acceptance notice shall be further confirmed to such
Lender and to the Administrative Agent in writing by telecopy or email not later
than the close of business on the date of acceptance, indicating the Interest
Period and the agreed interest rate on and principal amount of the Dollar
Competitive Bid Loan to be made by such Lender on such Business Day. A notice
given by the Parent Borrower pursuant to this paragraph shall be irrevocable.
33
(e) Not later than 4:00 p.m. (Charlotte, North Carolina time) on the
proposed borrowing date, each Lender whose Dollar Competitive Bid has been
accepted will disburse its Dollar Competitive Bid Loan in immediately available
funds by crediting or wiring such proceeds to the deposit account of the
relevant Borrower identified in its most recent Notice of Account Designation.
Each such Lender shall furnish account wiring instructions to the Parent
Borrower for the payment of principal and interest.
(f) At the written request of any Lender or the Administrative Agent,
the Parent Borrower shall disclose to the Administrative Agent the Dollar
Competitive Bids received and accepted by the Parent Borrower on any date
specified in such request, provided that such date is not more than 30 days
prior to the date on which such request is received by the Parent Borrower.
(g) Each outstanding Dollar Competitive Bid Loan shall reduce the
Commitment of each Lender ratably in the proportion such Lender's Commitment
bears to the Aggregate Commitment, regardless of which Lender or Lenders make
such Dollar Competitive Bid Loan.
(h) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the relevant Borrower to
such Lender resulting from each Dollar Competitive Bid Loan made by such Lender
to the relevant Borrower from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. The
entries maintained in the accounts maintained pursuant to the immediately
preceding sentence shall be prima facie evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the relevant Borrower
to repay the Obligations in accordance with their terms.
(i) Unless such Dollar Competitive Bid Loan is renewed at the Lender's
option upon request of the Parent Borrower, the relevant Borrower shall repay
the outstanding principal amount of each Dollar Competitive Bid Loan made to it
in full on the last day of the Interest Period applicable thereto, with all
accrued but unpaid interest thereon. Dollar Competitive Bid Loans may not be
repaid prior to the last day of the applicable Interest Period except in
accordance with Sections 2.4.2 and 2.4.5.
2.5.2. Foreign Currency Competitive Bid Loans.
(a) Subject to the terms and conditions set forth herein, from time to
time until the expiration or termination of the Aggregate Commitment, each
Lender may (but shall not have any obligation to) submit Foreign Currency
Competitive Bids under its respective Revolving Credit Facility, and the Parent
Borrower may (but shall not have any obligation to) accept Foreign Currency
Competitive Bids and borrow Foreign Currency Competitive Bid Loans (in each
case, on its own behalf or on behalf of the relevant Subsidiary Borrower);
provided that after giving effect thereto, (i) the Dollar Equivalent of the
Aggregate Revolving A Credit Exposure or Aggregate Revolving B Credit Exposure,
as the case may be, shall not at any time exceed the Aggregate Revolving A
Commitment or Aggregate Revolving B Commitment, as the case may be and (ii)
34
there shall not be outstanding at any time more than 5 Competitive Bid Loans.
Unless otherwise mutually agreed with the Administrative Agent, the Parent
Borrower shall administer the bidding and acceptance process for Foreign
Currency Competitive Bid Loans in accordance with the terms and conditions of
this Section 2.5.2.
(b) When any Borrower wishes to request Foreign Currency Competitive
Bids, the Parent Borrower (on its own behalf or on behalf of the relevant
Subsidiary Borrower) shall transmit to the Lenders, a request for Foreign
Currency Competitive Bids to be received no later than one Business Day prior to
the date on which such Foreign Currency Competitive Bids are to be submitted by
the Lenders specifying: (i) the date and time such Foreign Currency Competitive
Bids must be submitted to the relevant Borrower, (ii) the proposed borrowing
date of such Foreign Currency Competitive Bid Loan, which shall be a Business
Day, (iii) the aggregate principal amount of such requested Foreign Currency
Competitive Bid Loan, (iv) the currency in which such requested Foreign Currency
Competitive Bid Loan shall be made available, (v) the name of the relevant
Borrower, (vi) the location and number of the applicable Borrower's account to
which the proceeds of the Foreign Currency Competitive Bid Loan are to be
disbursed and (vii) any other conditions relevant to such requested Foreign
Currency Competitive Bid Loan (a "Foreign Currency Competitive Bid Request").
(c) Each Foreign Currency Competitive Bid shall be submitted by
telecopy, electronic mail or telephone (promptly confirmed in writing to the
relevant Borrower) to the Parent Borrower (or, at its option, to the relevant
Foreign Subsidiary Borrower) no later than the time specified in the Foreign
Currency Competitive Bid Request, and, unless timely accepted, shall
automatically lapse one hour thereafter. A Foreign Currency Competitive Bid may
be for an amount greater than (or less than) such Lender's Commitment. Each
Foreign Currency Competitive Bid shall be irrevocable and shall specify (i) the
principal amount of the Foreign Currency Competitive Bid Loan or Loans that the
applicable Lender is willing to make, (ii) the Foreign Currency Competitive Bid
Rate or Rates at which such Lender is prepared to make such Foreign Currency
Competitive Bid Loan or Loans (expressed as a percentage rate per annum in the
form of a decimal to no more than four decimal places), (iii) the currency in
which such Foreign Currency Competitive Bid Loan is to be denominated, (iv) the
Interest Period applicable to each such Loan and the last day thereof and (v)
any other information that the Parent Borrower shall have required to be
provided to it in the Foreign Currency Competitive Bid Request. The Parent
Borrower may accept or reject any Foreign Currency Competitive Bid (on its own
behalf or on behalf of the relevant Subsidiary Borrower); provided that the
Parent Borrower shall not accept a Foreign Currency Competitive Bid made at a
particular Foreign Currency Competitive Bid Rate if the Parent Borrower rejects
a Foreign Currency Competitive Bid made at a lower Foreign Currency Competitive
Bid Rate, unless the Parent Borrower determines in its good faith judgment that
the overall cost of accepting the Foreign Currency Competitive Bid made at the
lower Foreign Currency Competitive Bid Rate (due to withholding taxes, fees or
other expenses in connection with such Foreign Currency Competitive Bid) exceeds
that of the Foreign Currency Competitive Bid made at the higher Foreign Currency
Competitive Bid Rate.
35
(d) The provisions of the preceding paragraph notwithstanding, if
Foreign Currency Competitive Bids were made by Lenders on a Business Day with
respect to a particular Interest Period and such Foreign Currency Competitive
Bids lapsed on such Business Day pursuant to the preceding paragraph, the Parent
Borrower may, in its sole and absolute discretion, subject only to the
provisions of this paragraph, contact one or more of such Lenders, by telephone,
telecopy or email, following the lapse of such Foreign Currency Competitive Bid
on such Business Day to request that such Lenders reinstate such Foreign
Currency Competitive Bids for such Interest Period or provide new Foreign
Currency Competitive Bids for such Interest Period on such Business Day. Each
Foreign Currency Competitive Bid so reinstated shall be submitted by telecopy or
electronic mail to the Parent Borrower or by telephone (promptly confirmed in
writing to the Parent Borrower) on the proposed date of such borrowing.
Notwithstanding anything to the contrary in any Foreign Currency Competitive Bid
reinstated or submitted pursuant to this paragraph, each such Foreign Currency
Competitive Bid shall be irrevocable in respect of the date on which it is to
reinstated or submitted and shall automatically expire at one hour after such
Foreign Currency Competitive Bid is received by the Parent Borrower.
(e) The Parent Borrower (on its behalf or on behalf of the any Foreign
Subsidiary Borrower) may, in its sole and absolute discretion, subject only to
the provisions of this paragraph, accept any Foreign Currency Competitive Bid
submitted under this Section by notifying the Lender submitting such Foreign
Currency Competitive Bid by telephone, telecopy or email not later than the
expiration time of such Foreign Currency Competitive Bid, which acceptance
notice shall be further confirmed to such Lender and to the Administrative Agent
in writing by telecopy or email not later than the close of business on the date
of acceptance, indicating the Interest Period and the agreed interest rate on
and principal amount of the Foreign Currency Competitive Bid Loan to be made by
such Lender on such Business Day. A notice given by the relevant Borrower
pursuant to this paragraph shall be irrevocable.
(f) Not later than the time set forth in the relevant Foreign Currency
Competitive Bid Request, each Lender whose Foreign Currency Competitive Bid has
been accepted will disburse its Foreign Currency Competitive Bid Loan in
immediately available funds and in the relevant currency by crediting or wiring
such proceeds to the deposit account of the relevant Borrower identified in its
most recent Notice of Account Designation. Each such Lender shall furnish
account wiring instructions to the relevant Borrower for the payment of
principal and interest.
(g) At the written request of any Lender or the Administrative Agent,
the Parent Borrower shall disclose to the Administrative Agent the Foreign
Currency Competitive Bids received and accepted by the Borrowers on any date
specified in such request, provided that such date is not more than 30 days
prior to the date on which such request is received by such Borrowers.
(h) Each outstanding Foreign Currency Competitive Bid Loan shall
reduce the Commitment of each Lender ratably in the proportion such Lender's
Commitment bears to the Aggregate Commitment, regardless of which Lender or
Lenders make such Foreign Currency Competitive Bid Loan.
(i) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the relevant Borrower to
such Lender resulting from each Foreign Currency Competitive Bid Loan made by
36
such Lender to the relevant Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The entries maintained in the accounts maintained pursuant to the
immediately preceding sentence shall be prima facie evidence of the existence
and amounts of the Obligations therein recorded; provided, however, that the
failure of the Administrative Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the relevant
Borrower to repay the Obligations in accordance with their terms.
(j) Unless such Foreign Currency Competitive Bid Loan is renewed at
the Lender's option upon request of the Parent Borrower, the relevant Borrower
shall repay the outstanding principal amount of each Foreign Currency
Competitive Bid Loan made to it in full on the last day of the Interest Period
applicable thereto, with all accrued but unpaid interest thereon. Foreign
Currency Competitive Bid Loans may not be repaid prior to the last day of the
applicable Interest Period except in accordance with Sections 2.3.2 and 2.3.5.
Section 2.6 Swingline Loans.
(a) The Swingline Lender agrees, on the terms and subject to the
conditions set forth herein, to make a portion of the Revolving A Commitment
available to the Parent Borrower from time to time prior to the Swingline
Termination Date by making Swingline Loans to the Parent Borrower in Dollars,
Sterling or Euros (each such loan, a "Swingline Loan" and collectively, the
"Swingline Loans"), in each case in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate Dollar Equivalent of the
Swingline Loans outstanding at any one time exceeding the Swingline Commitment,
(ii) with regard to each Revolving A Lender individually (other than the
Swingline Lender in its capacity as such), the Dollar Equivalent of such
Lender's Revolving A Credit Exposure exceeding such Lender's Revolving A
Commitment, or (iii) with regard to the Revolving A Lenders collectively, the
Dollar Equivalent of the Aggregate Revolving A Credit Exposure exceeding the
Aggregate Revolving A Commitment. Swingline Loans may be repaid and reborrowed
in accordance with the provisions hereof prior to the Swingline Termination
Date. The proceeds of any Swingline Loan may be used, in whole or in part, to
refund any prior Swingline Loan.
(b) The Parent Borrower shall request a Swingline Loan by irrevocable
written notice (or telephone notice promptly confirmed in writing) substantially
in the form of Exhibit A-2 hereto (a "Swingline Loan Request") to the Swingline
Lender and the Administrative Agent (i) not later than 2:00 p.m. Charlotte,
North Carolina time on the date of funding a Swingline Loan denominated in
Dollars which shall be a Business Day, and (ii) not later than 11:00 a.m.
Charlotte, North Carolina time on the Business Day prior to the date requested
to borrow a Swingline Loan denominated in Sterling or Euros. Each Swingline Loan
shall be made as a LIBOR Market Index Rate Loan and, in each case, subject to
Section 2.6(c), shall have such maturity date as agreed to by the Swingline
Lender and the Parent Borrower.
(c) Swingline Loans shall be due and payable on the earliest of (i)
the maturity date agreed to by the Swingline Lender and the Parent Borrower with
respect to such Swingline Loan, which shall not be longer than 30 days after the
date of borrowing, (ii) the Swingline Termination Date, (iii) the occurrence of
a Bankruptcy Event with respect to the Parent Borrower, any Guarantor or any
Foreign Subsidiary Borrower with Obligations then outstanding under this
Agreement or (iv) the acceleration of any Loan or the termination of the
Aggregate Commitment pursuant to Section 11.2.
37
(d) The Swingline Lender may, at any time in its sole discretion, by
written notice delivered to the Administrative Agent no later than 11:00 a.m.,
Charlotte, North Carolina time, on any Business Day, require the Revolving A
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding, and each Revolving A Lender hereby irrevocably
agrees to purchase, and shall be deemed to have purchased, a Participation
Interest in such outstanding Swingline Loans in an amount equal to its Revolving
A Ratable Share of the unpaid amount together with accrued interest thereon. Not
later than 2:00 p.m. Charlotte, North Carolina time on the Business Day such
notice is given, each Revolving A Lender shall deliver to the Swingline Lender
an amount equal to its respective Participation Interest in such Swingline Loans
in same day funds and in the applicable currency at the office of the Swingline
Lender specified on Section 13.1. In order to evidence such Participation
Interest, each such Revolving A Lender agrees to enter into a participation
agreement at the request of the Swingline Lender in form and substance
reasonably satisfactory to all parties. In the event any Revolving A Lender
fails to make available to the Swingline Lender the amount of its Participation
Interest as provided in this Section 2.6(d), the Swingline Lender shall be
entitled to recover such amount on demand from such Revolving A Lender together
with interest at the Federal Funds Rate for one Business Day and thereafter at
the Alternate Base Rate.
(e) A copy of each notice given by the Swingline Lender pursuant to
this Section 2.6 shall be promptly delivered by the Swingline Lender to the
Administrative Agent and the Parent Borrower.
(f) The obligation of each of the Revolving A Lenders to purchase
Participation Interests in outstanding Swingline Loans pursuant to Section
2.6(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including (without limitation) (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have against the Swingline Lender or any Credit Party, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination or reduction
in the amount of the Aggregate Commitment after any such Swingline Loans were
made, (iii) any adverse change in the condition (financial or otherwise) of any
Credit Party or any other Person, (iv) any breach of this Agreement or any other
Loan Document by any Credit Party or any other Lender, (v) whether any condition
specified in Section 5.2 is then satisfied or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the forgoing. If
such Revolving A Lender does not pay such amount forthwith upon the Swingline
Lender's demand therefor, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid Participation Interest for all
purposes of the Loan Documents other than those provisions requiring the other
Lenders to purchase a participation therein. Further, such Revolving A Lender
shall be deemed to have assigned any and all payments made of principal and
interest on its Loans, and any other amounts due to it hereunder to the
Swingline Lender to fund Swingline Loans in the amount of the Participation
Interest in Swingline Loans that such Revolving A Lender failed to purchase
pursuant to Section 2.6(d) until such amount has been purchased (as a result of
such assignment or otherwise).
38
Section 2.7 Termination of Commitments. The Aggregate Commitment shall
terminate on the earliest of (a) the Specified Maturity Date, (b) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 11.2.1 and (c) the date of termination by the Parent Borrower pursuant
to Section 2.8.
Section 2.8 Commitment Reductions. The Parent Borrower shall have the
right at any time and from time to time, upon at least three (3) Business Days'
prior written notice to the Administrative Agent, to permanently terminate or
reduce the Commitment of any Class; provided that (i) each reduction of the
Commitment of any Class shall be in an aggregate principal amount not less than
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) such
reduction shall not cause the Aggregate Revolving A Credit Exposure to exceed
the Aggregate Revolving A Commitment or the Aggregate Revolving B Credit
Exposure to exceed the Aggregate Revolving B Commitment. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Revolving A Lender
and Revolving B Lender, as applicable. The amount of any termination or
reduction made under this Section 2.8 may not thereafter be reinstated.
Section 2.9 Commitment Increase.
2.9.1. In the event that the Parent Borrower wishes to increase the
Commitment of any Class at any time when no Default or Event of Default has
occurred and is continuing, it shall notify the Administrative Agent in writing
of the amount (the "Offered Increase Amount") of such proposed increase (such
notice, a "Commitment Increase Notice"); provided that (i) any such request
shall be in a minimum amount of $25,000,000 or such lesser amount as agreed upon
by the Parent Borrower and the Administrative Agent, (ii) immediately after
giving effect to any increase, the aggregate amount of increases under all
Classes pursuant to this Section 2.9 shall not exceed an amount equal to
$150,000,000 minus the aggregate amount by which the Aggregate Commitment shall
theretofore have been increased pursuant to Section 2.10, (iii) the Parent
Borrower shall not make more than four requests to increase Commitments pursuant
to this Section and (iv) no existing Lender shall be obligated to increase its
Commitment as a result of any request for a increase by the Parent Borrower
unless it agrees in its sole discretion to do so. The Parent Borrower may, at
its election, (x) offer to one or more of the Lenders the opportunity to
participate in all or a portion of the Offered Increase Amount pursuant to
Section 2.9.3 and/or (y) with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld), offer to one or more additional
banks, financial institutions or other entities the opportunity to participate
in all or a portion of the Offered Increase Amount pursuant to Section 2.9.2
below.
2.9.2. Any additional bank, financial institution or other entity to
which the Parent Borrower offers participation in the Offered Increase Amount
and which elects to become a party to this Agreement and provide a Commitment in
the amount so offered pursuant to Section 2.9.1(y) shall execute a New Lender
Supplement with the Parent Borrower and the Administrative Agent, whereupon such
bank, financial institution or other entity (each a "New Lender") shall become a
Lender for all purposes and to the same extent as if originally a party hereto
and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 1.1(a) shall be deemed to be amended to add the name and Commitment of
such New Lender, provided that the Commitment of any such new Lender shall be in
an amount not less than $15,000,000 or such lesser amount as agreed upon by the
Parent Borrower and the Administrative Agent.
39
2.9.3. Any Lender which accepts an offer to it by the Parent Borrower to
increase its Commitment pursuant to Section 2.9.1 shall, in each case, execute a
Commitment Increase Supplement with the Parent Borrower and the Administrative
Agent, whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased, and Schedule 1.1(a) shall be deemed to be amended to so increase the
Commitment of such Lender.
2.9.4. To the extent necessary to keep the outstanding Loans ratable
in the event of any non-ratable increase in the Aggregate Revolving A Commitment
or Revolving B Commitment, on the effective date of any such increase, (i) all
then outstanding Loans (the "Initial Loans") shall be deemed to be repaid, (ii)
immediately after the effectiveness of any such increase, the relevant Borrowers
shall be deemed to have made new borrowings (the "Subsequent Borrowings") in an
aggregate principal amount equal to the aggregate principal amount of the
Initial Loans and of the Types and for the Interest Periods specified in a
Notice of Conversion/Continuation delivered to the Administrative Agent in
accordance with Section 2.3, (iii) each applicable Lender shall pay to the
Administrative Agent in immediately available funds an amount equal to the
difference, if positive, between (y) such Lender's pro rata share (calculated
after giving effect to the increase) of the Subsequent Borrowings and (z) such
Lender's pro rata share (calculated without giving effect to the increase) of
the Initial Loans, (iv) after the Administrative Agent receives the funds
specified in clause (iii) above, the Administrative Agent shall pay to each
applicable Lender the portion of such funds equal to the difference, if
positive, between (y) such Lender's pro rata share (calculated without giving
effect to the increase) of the Initial Loans and (z) such Lender's pro rata
share (calculated after giving effect to the increase) of the amount of the
Subsequent Borrowings, (v) the applicable Lenders shall be deemed to hold the
Subsequent Borrowings ratably in accordance with their respective Revolving A
Commitment or Revolving B Commitment, as the case may be (calculated after
giving effect to the increase), and (vi) the relevant Borrowers shall pay all
accrued but unpaid interest on the Initial Loans to the Lenders entitled
thereto. The conversion of the Initial Loans pursuant to clause (i) above shall
be subject to indemnification by the relevant Borrowers pursuant to the
provisions of Section 4.8 if the effective date of any increase occurs other
than on the last day of the Interest Period relating thereto.
Section 2.10 New Class of Commitments. Notwithstanding anything in
Section 13.10 or elsewhere in this Agreement to the contrary, in the event the
Parent Borrower shall desire to designate after the date hereof as Foreign
Subsidiary Borrowers hereunder one or more Subsidiaries organized under the laws
of any country outside the United States and shall determine that payments of
interest or fees by any such Subsidiary to one or more of the Lenders would be
subject to withholding taxes if made under the arrangements provided for herein,
the Parent Borrower may request Lenders selected by it and reasonably acceptable
to the Administrative Agent that would be able to receive such payments free of
withholding taxes to establish hereunder an additional Class of Commitments
under which Revolving Credit Loans would be made available to such Foreign
Subsidiary Borrowers and, if the Parent Borrower shall so elect, to the Parent
Borrower and one or more other Foreign Subsidiary Borrowers, and, subject to the
provisions of the following sentence, the Parent Borrower may increase the
40
Aggregate Commitments in connection with the establishment of such Class.
Subject to the provisions of this Section 2.10, any such additional Class of
Commitments may be established by a written amendment to this Agreement entered
into by the Parent Borrower, the Administrative Agent and each Lender that shall
agree to provide a Commitment of such Class, and shall not require the consent
of any other Lender; provided, that: (i) the aggregate outstanding principal
amount of the new Commitments of any Class established pursuant to this
paragraph shall not, without the consent of the Required Lenders, exceed an
amount equal to $150,000,000 minus the aggregate amount by which the Aggregate
Commitment shall theretofore have been increased pursuant to Section 2.9; and
(ii) the terms applicable to the Commitments and Revolving Credit Loans of any
new Class shall be the same as those applicable to the original Classes except
as required or deemed appropriate by the Parent Borrower and the Administrative
Agent to make the Commitments and Revolving Credit Loans of such new Class
available to the intended Foreign Subsidiary Borrowers. Any such amendment
agreement shall, subject to the preceding sentence, amend the provisions of this
Agreement and the other Loan Documents to set forth the terms of such new Class
and the Revolving Credit Loans thereunder and make such other amendments to this
Agreement as shall be necessary or appropriate in the judgment of the Parent
Borrower and the Administrative Agent to make the benefits of this Agreement
available to the Lenders participating in such new Class, including without
limitation amending Section 13.10. Further, any such amendment agreement shall
amend the provisions of this Agreement (including Section 4.10) as shall be
necessary or appropriate in the judgment of the Parent Borrower and the
Administrative Agent to ensure that payments by or to Lenders participating in
such new Class shall not be subject to withholding taxes imposed by any such
foreign country and the United States in effect on the date each such Lender
becomes a participant in the new Class. The Commitments, Loans and borrowings
thereof of any Class established pursuant to this Section 2.10 shall constitute
Commitments, Loans and Revolving Credit Loans under, and shall be entitled to
all the benefits afforded by, this Agreement and the other Loan Documents, and
shall, without limiting the foregoing, benefit equally and ratably from the
undertakings of the Guarantors to the extent provided in Article X.
Section 2.11 Addition or Removal of Foreign Subsidiary Borrowers;
Optional Currencies.
2.11.1. Foreign Subsidiary Borrowers.
(a) The Parent Borrower may at any time, with the prior consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed),
add as a Revolving Borrower to this Agreement any Foreign Subsidiary upon
satisfaction of the conditions specified in Section 5.3, in which case such
Foreign Subsidiary shall for all purposes be a party hereto as a Revolving A
Borrower or Revolving B Borrower, as the case may be, as fully as if it had
executed and delivered this Agreement. Subject to Section 2.11.3, the
Administrative Agent shall notify the applicable Lenders in the Class to which
such Foreign Subsidiary shall be a Revolving Borrower at least five Business
Days prior to granting such consent, and shall withhold such consent if the
Required Revolving A Lenders and/or Required Revolving B Lenders, as the case
may be, notify the Administrative Agent within five Business Days that they are
not permitted by Applicable Law or any other organizational policy to make Loans
to the relevant Foreign Subsidiary. If (i) any Lender shall have notified the
41
Administrative Agent that it is not permitted by Applicable Law or any other
organizational policy to make Loans to the relevant Foreign Subsidiary and (ii)
the Administrative Agent is not required to withhold its consent to the addition
of such Foreign Subsidiary as a Foreign Subsidiary Borrower pursuant to the
immediately preceding sentence, then such Foreign Subsidiary Borrower shall be
added, provided that the Administrative Agent may establish and apply such other
rules and procedures as it deems reasonably necessary for the addition of such
Foreign Subsidiary Borrower pursuant to, and in a manner consistent with, this
Agreement.
(b) So long as the principal of and interest on any Loans made to any
Foreign Subsidiary Borrower under this Agreement shall have been paid in full
and all other Obligations of such Foreign Subsidiary Borrower under this
Agreement shall have been fully performed, the Parent Borrower may, by not less
than five Business Days' prior notice to the Administrative Agent (which shall
promptly notify the relevant Lenders thereof), terminate such Subsidiary's
status as a "Foreign Subsidiary Borrower".
2.11.2. Competitive Bid Foreign Subsidiary Borrowers.
(a) The Parent Borrower may at any time, with the prior consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed),
add as a party to this Agreement any Foreign Subsidiary to be a Foreign
Subsidiary Borrower upon satisfaction of the conditions specified in Section
5.3, in which case such Foreign Subsidiary shall for all purposes be a party
hereto as a Foreign Subsidiary Borrower as fully as if it had executed and
delivered this Agreement; provided that notwithstanding anything to the contrary
contained herein, such Foreign Subsidiary Borrower shall not be permitted to
obtain any Revolving Credit Loans, but shall be permitted to obtain Competitive
Bid Loans hereunder pursuant to Section 2.5 (a "Competitive Bid Foreign
Subsidiary Borrower"). The Administrative Agent shall notify the Lenders at
least 5 Business Days prior to granting such consent. The Administrative Agent
may establish other rules and procedures as it deems reasonably necessary in its
discretion in order to facilitate the addition of such Competitive Bid Foreign
Subsidiary Borrower pursuant to, and in a manner consistent with, this
Agreement.
(b) So long as the principal of and interest on any Loans made to any
Competitive Bid Foreign Subsidiary Borrower under this Agreement shall have been
paid in full and all other obligations of such Competitive Bid Foreign
Subsidiary Borrower under this Agreement shall have been fully performed, the
Parent Borrower may, by not less than 5 Business Days' prior notice to the
Administrative Agent (which shall promptly notify the relevant Lenders thereof),
terminate such Subsidiary's status as a "Competitive Bid Foreign Subsidiary
Borrower".
2.11.3. Addition of Optional Currencies. The Parent Borrower may at
any time and from time to time request that the definition of "Revolving A
Optional Currency" and/or "Revolving B Optional Currency" be amended to add any
other currency that is freely transferable and convertible into Dollars in the
London interbank market and for which a Eurocurrency Base Rate can be determined
by reference to the Telerate screen as provided in the definition of
"Eurocurrency Base Rate". For the avoidance of doubt, the addition of any
Foreign Subsidiary Borrower pursuant to Section 2.11.1(a) shall not be deemed to
amend the definition of "Revolving A Optional Currency" or "Revolving B Optional
Currency", as the case may be, unless approved by all of the relevant Lenders
42
pursuant to this Section 2.11.3. The Administrative Agent shall promptly notify
the affected Lenders in the relevant Class to which such proposed currency is to
be made available for the borrowing of Revolving Credit Loans, and shall
withhold such consent if any Lender in such Class notifies the Administrative
Agent within five Business Days of such notice that it is not permitted by
Applicable Law or any other organizational policy to make Loans in such
currency. If each of the affected Lenders in the relevant Class consents to the
addition of such proposed currency, the definition of "Revolving A Optional
Currency" and/or "Revolving B Optional Currency", as the case may be, and
Schedule 1.1(b) shall automatically be deemed amended to reflect the addition of
such currency and the Parent Borrower and the Administrative Agent, on behalf of
the Required Lenders (or all of the applicable Lenders if required by Section
13.10), shall further amend the provisions of this Agreement (including Section
4.1.4) as shall be necessary or appropriate to provide for the borrowing,
funding, disbursement, computation of interest and repayment of Obligations
denominated in such new currency.
Section 2.12 Parent Borrower as Agent for Subsidiary Borrowers.
(a) Each Subsidiary Borrower hereby irrevocably appoints the Parent
Borrower as the borrowing agent and attorney-in-fact for such Subsidiary
Borrower which appointment shall remain in full force and effect unless and
until Administrative Agent shall have received prior written notice signed by
the Parent Borrower that it has resigned such position. Each Subsidiary Borrower
hereby irrevocably appoints and authorizes the Parent Borrower to (i) provide
all notices and instructions under this Agreement and (ii) take such action as
the Parent Borrower deems appropriate on its behalf to obtain Loans and to
exercise such other powers as are reasonably incidental thereto to carry out the
purposes of this Agreement.
(b) Each Borrower hereby severally agrees to indemnify each Lender and
the Administrative Agent and hold each Lender and the Administrative Agent
harmless against any and all liability, expense, loss or claim of damage or
injury, made against the Lenders and the Administrative Agent by such Borrower
or by any third party whosoever, arising from or incurred by reason of the
Lenders' or the Administrative Agent's relying on any instructions of the Parent
Borrower on behalf of such Borrower, except that such Borrower will have no
liability under this Section 2.12(b) with respect to any liability that has been
finally determined by final non-appealable judgment by a court of competent
jurisdiction to have resulted solely from the gross negligence or willful
misconduct of such Lender or the Administrative Agent.
ARTICLE III
LETTER OF CREDIT FACILITY
Section 3.1 L/C Commitment.
3.1.1. Subject to the terms and conditions hereof, each Issuing
Lender, in reliance on the agreements of the Revolving A Lenders set forth in
Section 3.4.1, agrees to issue letters of credit ("Revolving A Letters of
Credit") for the account of the Parent Borrower or any Restricted Subsidiary (it
being understood that the Parent Borrower shall be a co-applicant for any
43
Revolving A Letter of Credit issued for the account of any Restricted Subsidiary
that is not a Credit Party) on any Business Day from the Closing Date to but not
including the L/C Termination Date in such form as may be requested by the
Parent Borrower (on its own behalf or on behalf of any Restricted Subsidiary)
and approved from time to time by such Issuing Lender; provided, that no Issuing
Lender shall issue, amend, extend or renew any Revolving A Letter of Credit if,
after giving effect to such issuance, amendment, extension or renewal, (i) the
Aggregate Revolving A Credit Exposure would exceed the Aggregate Revolving A
Commitment or (ii) the Aggregate L/C Obligations would exceed the Aggregate L/C
Sublimit. Each Revolving A Letter of Credit may be denominated in Dollars,
Euros, Sterling or in any Revolving A Optional Currency.
3.1.2. Subject to the terms and conditions hereof, each Issuing
Lender, in reliance on the agreements of the other Revolving B Lenders set forth
in Section 3.4.2, agrees to issue letters of credit ("Revolving B Letters of
Credit") for the account of the Parent Borrower or any Restricted Subsidiary (it
being understood that the Parent Borrower shall be a co-applicant for any
Revolving B Letter of Credit issued for the account of a Restricted Subsidiary
that is not a Credit Party) on any Business Day from the Closing Date to but not
including the L/C Termination Date in such form as may be requested by the
Parent Borrower (on its own behalf or on behalf of any Restricted Subsidiary)
and approved from time to time by such Issuing Lender; provided, that no Issuing
Lender shall issue, amend, extend or renew any Revolving B Letter of Credit if,
after giving effect to such issuance, amendment, extension or renewal, (i) the
Aggregate Revolving B Credit Exposure would exceed the Aggregate Revolving B
Commitment or (ii) the Aggregate L/C Obligations would exceed the Aggregate L/C
Sublimit. Each Revolving B Letter of Credit shall be denominated in Dollars,
Euros, Sterling or in any Revolving B Optional Currency.
3.1.3. Each Letter of Credit shall (a) be a letter of credit issued to
support obligations of the Parent Borrower or any of its Restricted
Subsidiaries, contingent or otherwise, (b) expire on a date not later than one
year after the date of issuance thereof and not later than the date which is
five (5) Business Days prior to the Specified Maturity Date, and (c) be subject
to the Uniform Customs and, to the extent not inconsistent therewith, the laws
of the State in which the corporate headquarters of the relevant Issuing Lender
is located or such other jurisdiction as is acceptable to the relevant Issuing
Lender. No Issuing Lender shall at any time be obligated to issue any Letter of
Credit hereunder if such issuance violates any order, judgment or decree of any
Governmental Authority that by its terms enjoins or restrains the issuance of
such Letter of Credit or any Applicable Law applicable to such Issuing Lender,
the Administrative Agent or any Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority with jurisdiction
over it shall prohibit, or request that it refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall impose upon
it or any Lender with respect to such Letter of Credit any restriction or
reserve or capital requirement (for which such Issuing Lender or any Lender is
not otherwise compensated), or any unreimbursed loss, cost or expense which was
not applicable or in effect as of the Closing Date. References herein to "issue"
and derivations thereof with respect to Letters of Credit shall also include any
amendment, extension, renewal or increase in the stated amount of any existing
Letters of Credit, unless the context otherwise requires.
44
3.1.4. Allocation of Letters of Credit. Each Letter of Credit that is
denominated in Dollars may, as requested by the Parent Borrower, be converted
from one Type to another Type, and such determination, shall be binding on the
Lenders. Such determination may be changed from time to time so long as at the
time of any such determination, the conditions specified in Section 5.2 hereof
have been satisfied or waived in writing by the Administrative Agent on behalf
of the Required Lenders as of the date of such determination. The Parent
Borrower shall give notice to the Administrative Agent of any such determination
at the time of its request for the issuance of any Letter of Credit and of any
change in such determination at the time thereof.
Section 3.2 Procedure for Issuance of Letters of Credit.
The Parent Borrower may from time to time request that any Issuing Lender
issue a Letter of Credit (or amend, extend or renew an outstanding Letter of
Credit) by delivering to such Issuing Lender at any address mutually acceptable
to the Parent Borrower and such Issuing Lender an L/C Application therefor,
completed to the satisfaction of such Issuing Lender, and such other
certificates, documents and other papers and information as such Issuing Lender
may reasonably request. The L/C Application will contain a representation and
warranty that the conditions specified in Section 5.2 hereof (and Section 5.3 if
applicable) have been satisfied or waived in writing by the Administrative Agent
on behalf of the Required Lenders as of the date of the L/C Application. Upon
receipt of any L/C Application, such Issuing Lender shall process such L/C
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall, subject to Section 3.1, this Section 3.2 and Article V
hereof, promptly issue the Letter of Credit (or amend, extend or renew the
outstanding Letter of Credit) requested thereby (but in no event shall any
Issuing Lender be required to issue any Letter of Credit (or amend, extend or
renew an outstanding Letter of Credit) earlier than three (3) Business Days
after its receipt of the L/C Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by such Issuing Lender and the Parent Borrower. Within
fifteen (15) Business Days after the end of each calendar quarter, each Issuing
Lender (or the Administrative Agent if the Administrative Agent agrees to
undertake such action) shall report to each Lender all Letters of Credit issued
by it during the previous calendar quarter and the average daily undrawn and
unexpired amounts for all Letters of Credit for each day in such calendar
quarter. Each Issuing Lender (or the Administrative Agent if the Administrative
Agent agrees to undertake such action) shall calculate the Dollar Equivalent of
each outstanding Letter of Credit denominated in Euros, Sterling or any Optional
Currency as of the end of each calendar month and shall notify the
Administrative Agent and the Parent Borrower of such calculation, and such
calculation shall be the basis of any determination of the amount of outstanding
Revolving A L/C Obligations and Revolving X X/C Obligations for purposes hereof
until the next such calculation.
Section 3.3 Fees and Other Charges.
3.3.1. The Parent Borrower agrees to pay to the Administrative Agent,
for the account of each Revolving A Lender, a letter of credit fee (the
"Revolving A L/C Fee") in Dollars with respect to each Revolving A Letter of
Credit issued by any Issuing Lender in an amount determined as follows:
45
(a) as to Performance Letters of Credit, the Dollar Equivalent of the
average daily undrawn amount of such issued Letters of Credit times 50% of the
Applicable Percentage for Eurocurrency Rate Loans then in effect; and
(b) as to Financial Letters of Credit, the Dollar Equivalent of the
average daily undrawn amount of such issued Letters of Credit times the
Applicable Percentage for Eurocurrency Rate Loans then in effect.
3.3.2. The Parent Borrower agrees to pay to the Administrative Agent,
for the account of each Revolving B Lender, a letter of credit fee (the
"Revolving X X/C Fee") in Dollars with respect to each Revolving B Letter of
Credit issued by any Issuing Lender in an amount determined as follows:
(a) as to Performance Letters of Credit, the Dollar Equivalent of the
average daily undrawn amount of such issued Letters of Credit times 50% of the
Applicable Percentage for Eurocurrency Rate Loans then in effect; and
(b) as to Financial Letters of Credit, the Dollar Equivalent of the
average daily undrawn amount of such issued Letters of Credit times the
Applicable Percentage for Eurocurrency Rate Loans then in effect.
The L/C Fees shall be calculated quarterly in arrears on the last Business
Day of each calendar quarter and payable on the third Business Day following
such date, commencing on the first of such dates to occur after the Closing
Date, and on the Termination Date.
3.3.3. The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Revolving A Lenders the Revolving A L/C Fee received
by the Administrative Agent in accordance with their respective Revolving A
Ratable Share. The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Revolving B Lenders the Revolving X X/C Fee received
by the Administrative Agent in accordance with their respective Revolving B
Ratable Share.
3.3.4. In addition to the L/C Fees, the Parent Borrower agrees to pay
to any Issuing Lender that has issued a Letter of Credit at the request of the
Parent Borrower, for such Issuing Lender's own account, (i) a fronting fee in an
amount per annum equal to the lesser of (A) a percentage agreed upon between the
Parent Borrower and each Issuing Lender and (B) 0.125%, multiplied by the Dollar
Equivalent of the aggregate stated amount of such Letter of Credit for the
stated duration thereof, and (ii) customary charges of such Issuing Lender with
respect to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit.
46
Section 3.4 L/C Participations.
3.4.1. Each Issuing Lender irrevocably agrees to grant and hereby
grants to each Revolving A Lender, and, to induce such Issuing Lender to issue
Revolving A Letters of Credit hereunder, each Revolving A Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from such Issuing
Lender, on the terms and conditions hereinafter stated, for such Revolving A
Lender's own account and risk, an undivided interest equal to its Revolving A
Ratable Share of such Issuing Lender's obligations and rights under each
Revolving A Letter of Credit issued hereunder and the amount of each draft paid
by such Issuing Lender thereunder. Each Revolving A Lender unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Revolving A Letter of Credit for which such Issuing Lender is not reimbursed in
full by the Parent Borrower in accordance with the terms of this Agreement, such
Revolving A Lender shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such Revolving
A Lender's Ratable Share of the amount of such draft, or any part thereof, which
is not so reimbursed.
3.4.2. Each Issuing Lender irrevocably agrees to grant and hereby
grants to each Revolving B Lender, and, to induce such Issuing Lender to issue
Revolving B Letters of Credit hereunder, each Revolving B Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from such Issuing
Lender, on the terms and conditions hereinafter stated, for such Revolving B
Lender's own account and risk, an undivided interest equal to its Revolving B
Ratable Share of such Issuing Lender's obligations and rights under each
Revolving B Letter of Credit issued hereunder and the amount of each draft paid
by such Issuing Lender thereunder. Each Revolving B Lender unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Revolving B Letter of Credit for which such Issuing Lender is not reimbursed in
full by the Parent Borrower in accordance with the terms of this Agreement, such
Revolving B Lender shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such Revolving
B Lender's Ratable Share of the amount of such draft, or any part thereof, which
is not so reimbursed.
3.4.3. Upon becoming aware of any amount required to be paid by any
Lender to any Issuing Lender pursuant to Section 3.4.1 or Section 3.4.2 in
respect of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit, the Administrative Agent shall notify each Revolving
A Lender, in the case of Revolving A Letters of Credit, or each Revolving B
Lender, in the case of Revolving B Letters of Credit, of the amount and due date
of such required payment and such Lender shall pay to such Issuing Lender the
amount specified on the applicable due date. If any such amount is paid to such
Issuing Lender after the date such payment is due, such Lender shall pay to such
Issuing Lender on demand, in addition to such amount, the product of (i) such
amount, times (ii) the daily average Federal Funds Rate as determined by the
Administrative Agent during the period from and including the date such payment
is due to the date on which such payment is immediately available to such
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. A
certificate of any Issuing Lender with respect to any amounts owing under this
Section 3.4.3 shall be conclusive in the absence of manifest error. With respect
to payment to any Issuing Lender of the unreimbursed amounts described in this
Section 3.4.3, if the relevant Lenders receive notice that any such payment is
due (A) prior to 1:00 p.m. (Charlotte, North Carolina time) on any Business Day,
such payment shall be due that Business Day, and (B) after 1:00 p.m. (Charlotte,
North Carolina time) on any Business Day, such payment shall be due on the
following Business Day.
47
3.4.4. Whenever, at any time after any Issuing Lender has made payment
under any Letter of Credit and has received from any Lender the Revolving A
Ratable Share or Revolving B Ratable Share, as applicable, of such payment in
accordance with this Section 3.4, such Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the Parent Borrower or
otherwise, or any payment of interest on account thereof), such Issuing Lender
will distribute to such Lender its Revolving A Ratable Share or Revolving B
Ratable Share, as applicable; provided, that in the event that any such payment
received by such Issuing Lender shall be required to be returned by such Issuing
Lender, such Lender shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
Section 3.5 Reimbursement Obligation of the Revolving Borrowers.
Each relevant Revolving Borrower agrees to reimburse the relevant Issuing
Lender on each date such Issuing Lender or the Administrative Agent notifies
such Revolving Borrower of the date and amount of a draft paid under any Letter
of Credit requested by the Parent Borrower for the account of such Revolving
Borrower for the amount of (i) such draft so paid and (ii) any taxes, fees,
charges or other costs or expenses incurred by such Issuing Lender in connection
with such payment. Each such payment shall be made to the appropriate Issuing
Lender at its address for notices specified herein in the currency in which such
Letter of Credit is denominated (except that, in the case of any Letter of
Credit denominated in Euros, Sterling or any Optional Currency, in the event
that such payment is not made to the Issuing Lender on the date of receipt by
such Revolving Borrower of such notice, such payment shall be made in Dollars,
in an amount equal to the Dollar Equivalent of the amount of such payment) and
in immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by such Borrower under this Article III from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the Alternate Base Rate plus 2%. If such
Borrower fails to timely reimburse such Issuing Lender on the date such
Revolving Borrower receives the notice referred to in this Section 3.5, such
Issuing Lender shall promptly notify the Administrative Agent of such failure,
and such Revolving Borrower shall be deemed to have timely given a Notice of
Borrowing pursuant to Section 2.2 (without regard to the minimum and multiples
specified in Section 2.2.2) to the Administrative Agent requesting the Lenders
to make an Alternate Base Rate Loan under the Revolving A Credit Facility or the
Revolving B Credit Facility, as applicable, on such date in Dollars in an amount
equal to the Dollar Equivalent of the amount of such draft paid, together with
any taxes, fees, charges or other costs or expenses incurred by such Issuing
Lender and to be reimbursed pursuant to this Section 3.5 and, regardless of
whether or not the conditions precedent specified in Article V have been
satisfied, the applicable Lenders shall make Alternate Base Rate Loans in such
amount, the proceeds of which shall be applied to reimburse such Issuing Lender
for the amount of the related drawing and costs and expenses. Any conversion by
any Issuing Lender of any payment to be made by such Revolving Borrower in
respect of any Letter of Credit denominated in Euros, Sterling or any Optional
Currency into Dollars in accordance with this Section 3.5 (using the conversion
mechanism set forth in the definition of Dollar Equivalent) shall be conclusive
and binding upon such Revolving Borrower and the Lenders in the absence of
manifest error; provided that upon the request of any Lender, the Issuing Lender
shall provide to such Lender a certificate including reasonably detailed
information as to the calculation of such conversion. Notwithstanding the
foregoing, nothing in this Section 3.5 shall obligate the Lenders to make such
Alternate Base Rate Loans if the making of such Alternate Base Rate Loans would
violate the automatic stay under the Bankruptcy Code.
48
Section 3.6 Obligations Absolute.
Each Revolving Borrower's obligations under this Article III (including
without limitation the Reimbursement Obligation) shall be absolute,
unconditional and irrevocable under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which such Revolving Borrower
may have or have had against any Issuing Lender or any beneficiary or transferee
of a Letter of Credit (or any person for whom any such beneficiary or any such
transferee may be acting). Each Revolving Borrower also agrees with each Issuing
Lender that no Issuing Lender shall be responsible for, and such Revolving
Borrower's Reimbursement Obligation under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent, forged or insufficient in any respect, or any dispute
between or among such Revolving Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of such Revolving Borrower against any beneficiary of such
Letter of Credit or any such transferee. No Issuing Lender shall be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message, advice, or document, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by such Issuing Lender's
gross negligence or willful misconduct. Each Revolving Borrower agrees that any
action taken or omitted by any Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC, shall be binding on such Revolving Borrower and shall not
result in any liability of such Issuing Lender to such Revolving Borrower. The
responsibility of each Issuing Lender to such Revolving Borrower in connection
with any draft presented for payment under any Letter of Credit shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
Section 3.7 Letter of Credit Payments.
If any draft shall be presented for payment under any Letter of Credit, the
Issuing Lender shall promptly notify the Parent Borrower and the relevant
Subsidiary Borrower (if applicable) of the date and the Dollar Equivalent of the
amount thereof.
Section 3.8 Effect of L/C Application.
To the extent that any provision of any L/C Application related to any
Letter of Credit is inconsistent with the provisions of this Article III, the
provisions of this Article III shall apply.
49
ARTICLE IV
GENERAL LOAN PROVISIONS
Section 4.1 Interest and Utilization Fee.
4.1.1. Interest Rate Options.
(a) Subject to the provisions of this Section 4.1, at the election of
the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary
Borrower), the aggregate principal balance of any Dollar Revolving Loan shall
bear interest at (i) the Alternate Base Rate plus the Applicable Percentage for
Alternate Base Rate Loans or (ii) the Eurocurrency Rate plus the Applicable
Percentage for Eurocurrency Rate Loans; provided that such interest rate shall
be increased by any amount required pursuant to Section 4.1.6. The Parent
Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower)
shall select the rate of interest and Interest Period, if any, applicable to any
Revolving Credit Loan at the time a Notice of Borrowing is given pursuant to
Section 2.2 or at the time a Notice of Conversion/Continuation is given pursuant
to Section 2.3. Any Dollar Revolving Loan or any portion thereof as to which the
Parent Borrower has not duly specified an interest rate as provided herein shall
be deemed an Alternate Base Rate Loan.
(b) The aggregate principal balance of any Revolving Loan denominated
in Euros, Sterling or any Optional Currency shall bear interest at the
Eurocurrency Rate plus the Applicable Percentage for Eurocurrency Rate Loans;
provided that such interest rate shall be increased by any amount required
pursuant to Section 4.1.6. The Parent Borrower shall select the Interest Period
applicable to any Revolving Loan denominated in Euros, Sterling or any Optional
Currency at the time a Notice of Borrowing is given pursuant to Section 2.2 or
at the time a Notice of Conversion/Continuation is given pursuant to Section
2.3.
(c) A Competitive Bid Loan will bear interest at the Competitive Bid
Rate specified in the Competitive Bid accepted by the Parent Borrower with
respect to such Competitive Bid Loan.
(d) All Swingline Loans will bear interest at the LIBOR Market Index
Rate plus the Applicable Percentage for Eurocurrency Rate Loans.
4.1.2. Interest Periods. In connection with each Eurocurrency Rate
Loan and each Competitive Bid Loan, the Parent Borrower, by giving notice at the
times described in Section 4.1.1, shall elect an interest period (each, an
"Interest Period") to be applicable to such Revolving Credit Loan or such
Competitive Bid Loan, which Interest Period shall, unless otherwise agreed by
the Administrative Agent and the Lenders, be a period of one, two, three, or six
months with respect to each Eurocurrency Rate Loan, and a period of one day to
183 days with respect to each Competitive Bid Loan; provided that:
(a) the Interest Period shall commence on the date of advance of any
Eurocurrency Rate Loan or conversion to any Eurocurrency Rate Loan and, in the
case of immediately successive Interest Periods, each successive Interest Period
shall commence on the date on which the next preceding Interest Period expires;
50
(b) subject to clause (d) below, if any Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day, unless such Business Day falls in
another calendar month, in which case such Interest Period shall expire on the
next preceding Business Day;
(c) subject to clause (d) below, any Interest Period with respect to a
Eurocurrency Rate Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
the relevant calendar month at the end of such Interest Period; and
(d) no Interest Period shall extend beyond the Termination Date.
4.1.3. Default Rate. Notwithstanding the foregoing provisions of this
Section 4.1 but subject to Section 4.1.5, if any principal of or interest on any
Loan or any fee or other amount payable by any Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the foregoing provisions
of this Section 4.1, or (ii) in the case of any other amount, 2% plus the rate
applicable to Alternate Base Rate Loans made in the United States as provided in
Section 4.1.1(a). Interest shall continue to accrue on the amount of Loans
outstanding after the filing by or against any Borrower of any petition seeking
any relief in bankruptcy or under any act or law pertaining to insolvency or
debtor relief, whether state, federal or foreign.
4.1.4. Interest Payment and Computation.
(a) Interest on each Alternate Base Rate Loan and Swingline Loan shall
be payable by the relevant Borrower in arrears on the last Business Day of each
calendar quarter commencing on the first of such dates to occur after the
Closing Date, and interest on each Eurocurrency Rate Loan and Competitive Bid
Loan shall be payable by the relevant Borrower in arrears on the last day of
each Interest Period applicable thereto, and if such Interest Period exceeds
three (3) months, at the end of each three (3) month interval during such
Interest Period, provided that (i) interest accrued pursuant to Section 4.1.3
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an Alternate Base Rate Loan prior to the
Termination Date), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(b) Interest on all Loans and all fees payable hereunder shall be
computed on the basis of a 360-day year and assessed for the actual number of
days elapsed; provided that interest on Loans bearing interest at a rate based
upon the Prime Rate and Loans denominated in Sterling, Australian Dollars, Hong
Kong Dollars or Canadian Dollars shall be computed on the basis of a 365- or
366-day year, as applicable.
51
4.1.5. Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder charged or collected pursuant
to the terms of this Agreement exceed the highest rate permissible under any
Applicable Law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such a court determines
that the Lenders have charged or received interest hereunder in excess of the
highest applicable rate, the rate in effect hereunder shall automatically be
reduced to the maximum rate permitted by Applicable Law and the Lenders shall at
the Parent Borrower's option (or if an Event of Default has occurred and is then
continuing, at the Administrative Agent's option), (i) promptly refund to the
Parent Borrower any interest received by Lenders in excess of the maximum lawful
rate or (ii) apply such excess to the principal balance of the Obligations. It
is the intent hereof that the Parent Borrower not pay or contract to pay, and
that neither the Administrative Agent nor any Lender receive or contract to
receive, directly or indirectly in any manner whatsoever, interest in excess of
that which may be paid by the Parent Borrower under Applicable Law.
4.1.6. Utilization Fee. In the case of all Revolving Credit Loans made
with respect to either Revolving Credit Facility, on each day that Utilization
thereunder is greater than 50%, the otherwise applicable interest rate for all
Revolving Credit Loans made under such Revolving Credit Facility shall be
increased by the Applicable Percentage for Utilization Fee.
4.1.7. Interest Act (Canada). For purposes of disclosure under the
Interest Act (Canada), where interest is calculated pursuant to this Agreement
at a rate based upon a year consisting of a number of days less than the actual
number of days in such year (the "First Rate"), the rate or percentage of
interest on a yearly basis is equivalent to such First Rate multiplied by the
actual number of days in the year divided by the number of days which such year
is, for the purposes of interest calculations under this Agreement, deemed to
consist of.
4.1.8. Minimum Interest for Swiss Subsidiaries. Without derogation or
duplication of the provision set forth in Section 4.10, all interest payable by
a Swiss Subsidiary under this Agreement is expressed as a minimum payment net of
any deduction or withholding on account of Swiss withholding tax, where
applicable.
Section 4.2 Facility Fee.
The Parent Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders, a non-refundable facility fee (the "Facility Fee") in
Dollars at a rate per annum equal to the Applicable Percentage for Facility Fee
on the average daily amount of the Aggregate Commitment during the applicable
period, regardless of usage (or if any Revolving Credit Loans or L/C Obligations
remain outstanding after the Termination Date on the aggregate average daily
amount thereof). The Facility Fee shall accrue commencing on the Closing Date
and ending on the Termination Date (or, if later, the date of payment in full of
all Revolving Credit Loans and L/C Obligations) and shall be payable in arrears
on the last Business Day of each calendar quarter, beginning with the first such
date to occur after the Closing Date (and on the Termination Date upon demand).
Such Facility Fee shall be distributed by the Administrative Agent to the
Lenders in accordance with the Lenders' respective Ratable Share.
52
Section 4.3 Pro Rata Treatment: Manner of Payment.
(a) Each payment by the Parent Borrower on account of any Facility
Fees shall be allocated according to the respective Revolving A Ratable Share
and Revolving B Ratable Share, as the case may be, of the relevant Lenders. Each
payment on account of principal or interest on the Revolving A Credit Loans and
the Revolving B Credit Loans shall be applied pro rata according to the
respective outstanding principal amounts of the Revolving A Credit Loans and the
Revolving B Credit Loans, as the case may be, then held by the relevant Lenders.
Each Commitment reduction by the Parent Borrower shall be allocated among the
relevant Lenders according to the Revolving A Ratable Share or the Revolving B
Ratable Share, as the case may be.
(b) Each payment by any Credit Party on account of the principal of or
interest on the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement shall be
made on the date specified for payment under this Agreement to the
Administrative Agent at the relevant Funding Office, for the account of the
Lenders, in the currency in which such Obligation is denominated, as the case
may be, in immediately available funds and shall be made without any set-off,
counterclaim or deduction whatsoever (except for the excluded taxes covered by
Section 4.10.1). Such payments shall be made no later than 3:00 p.m., Local
Time. Any payment received after the time set forth in the immediately preceding
sentence shall be deemed to have been made on the next succeeding Business Day
for all purposes. Each payment to the Administrative Agent of the L/C Fees shall
be made in like manner, but for the account of the Issuing Lenders and the
relevant Lenders.
(c) Each payment to the Administrative Agent of Administrative Agent's
fees or expenses shall be made for the account of the Administrative Agent and
any amount payable to any Lender under Sections 4.7, 4.8, 4.9, 4.10 or 13.2
shall be paid to the Administrative Agent for the account of the applicable
Lender. The Administrative Agent shall distribute any payments received by it
under this Section 4.3 for the account of any other Lender to such Lender
promptly following receipt thereof to the appropriate Lending Office or other
address specified by such Lender. Subject to Section 4.1.2(b), if any payment
under this Agreement shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in computing any
interest if payable along with such payment.
Section 4.4 Crediting of Payments and Proceeds.
In the event that any Credit Party shall fail to pay any of the Obligations
when due and the Obligations have been accelerated pursuant to Section 11.2, all
payments received by the Administrative Agent or the Lenders upon the
Obligations and all net proceeds from the enforcement of the Obligations shall
be applied first to all expenses then due and payable by the Credit Parties
hereunder, then to all indemnity obligations then due and payable by the Credit
Parties hereunder, then to all Administrative Agent's fees then due and payable,
then to all commitment and other fees and commissions then due and payable, then
to accrued and unpaid interest on the Loans, then to the principal amount of the
Loans and Reimbursement Obligations (pro rata in accordance with all such
amounts due) and then to the Cash Collateral Account to the extent of any L/C
53
Obligations then outstanding, in that order; provided that to the extent any
payments are received from any Foreign Subsidiary Borrower and applied in
accordance with this Section 4.4, such payments shall only be applied to the
Obligations of such Foreign Subsidiary Borrower. To the extent that any such
payment received by the Administrative Agent or the Lenders is denominated in a
currency which is different from the currency in which any of the Obligations is
denominated, the portion of such payment to be applied to such Obligations shall
be converted by the Administrative Agent in accordance with its customary
practices to the currency of such Obligations and the reasonable costs of any
such conversion shall be for the account of such Foreign Subsidiary Borrower.
Section 4.5 Adjustments.
Except to the extent that this Agreement expressly provides for payments to
be allocated to a particular Lender or to the Lenders under a particular Credit
Facility, if any Lender (a "Benefited Lender") shall at any time receive any
payment of all or part of the Obligations owing to it, or interest thereon, or
if any Lender shall at any time receive any collateral in respect to the
Obligations owing to it (whether voluntarily or involuntarily, by set-off or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Parent
Borrower agrees that each Lender so purchasing a portion of another Lender's
Extensions of Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion. To the extent that any such
payment received by the Benefited Lender is denominated in a currency which is
different from the currency in which such other Lender's Extensions of Credit is
denominated, the portion of such payment to be used to purchase such other
Lender's Extensions of Credit shall be converted by the Administrative Agent in
accordance with its customary practices to the currency of such Lender's
Extensions of Credit and the reasonable costs of any such conversion shall be
for the account of such Foreign Subsidiary Borrower.
Section 4.6 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent
The obligations of the Lenders under this Agreement to make the Loans and
issue or participate in Letters of Credit and Swingline Loans are several and
are not joint or joint and several. Unless the Administrative Agent shall have
received notice from a Lender prior to a proposed borrowing date that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of the Revolving Credit Loans to be borrowed (which notice shall not
release such Lender from its obligations hereunder), the Administrative Agent
may assume that such Lender has made such portion or amount available to the
Administrative Agent on the proposed borrowing date in accordance with Section
2.2.3, and the Administrative Agent may, in reliance upon such assumption, make
54
available to the Parent Borrower on such date a corresponding amount. If such
amount is made available to the Administrative Agent on a date after such
borrowing date, such Lender shall pay to the Administrative Agent on demand an
amount, until paid, equal to the product of (a) the amount not made available by
such Lender in accordance with the terms hereof, times (b) the daily average
Federal Funds Rate or, in the case of an amount in Euros, Sterling or any
Optional Currency, the customary rate for the settlement of interbank
obligations in such Optional Currency as reasonably determined by the
Administrative Agent, in each case, during such period as determined by the
Administrative Agent, times (c) a fraction the numerator of which is the number
of days that elapse from and including such borrowing date to the date on which
such amount not made available by such Lender in accordance with the terms
hereof shall have become immediately available to the Administrative Agent and
the denominator of which is 360. A certificate of the Administrative Agent with
respect to any amounts owing under this Section 4.6 shall be conclusive, absent
manifest error. If such Lender's pro rata share of such Revolving Credit Loans
is not made available to the Administrative Agent by such Lender within three
(3) Business Days of such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to such borrowing, on demand,
from the relevant Borrower. The failure of any Lender to make available its pro
rata share of any Revolving Credit Loan or a Competitive Bid Loan shall not
relieve it or any other Lender of its obligation hereunder to make its pro rata
share of such Revolving Credit Loan or any Competitive Bid Loan respectively,
available on the borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its pro rata share of such Revolving Credit
Loan or any Competitive Bid Loan available on the borrowing date.
Section 4.7 Changed Circumstances; Illegality.
4.7.1. Circumstances Affecting Eurocurrency Rate Availability. If with
respect to any Interest Period: (i) the Administrative Agent or any Lender
(after consultation with the Administrative Agent) shall determine, acting
reasonably and in good faith, that for any reason adequate and reasonable means
do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan or (ii) the Required
Lenders reasonably and in good faith determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurocurrency Base Rate
applicable to a Eurocurrency Rate Loan will not adequately and fairly reflect
the cost to the Required Lenders of funding Eurocurrency Rate Loans for such
Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Parent Borrower. Thereafter, until the Administrative Agent
notifies the Parent Borrower that such circumstances no longer exist, the
obligation of the Lenders to make Eurocurrency Rate Loans and the right of the
Revolving Borrowers to convert any Revolving Credit Loan to or continue any
Revolving Credit Loan as a Eurocurrency Rate Loan shall be suspended, and the
relevant Revolving Borrower shall repay in full (or cause to be repaid in full)
the then outstanding principal amount of each such Eurocurrency Rate Loan
together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such Eurocurrency Rate Loan, as applicable, or, if
such Eurocurrency Rate Loan is denominated in Dollars, convert the then
outstanding principal amount of each such Dollar Eurocurrency Rate Loan to an
Alternate Base Rate Loan as of the last day of such Interest Period.
55
4.7.2. Illegality.
(a) If, after the date hereof, the introduction of, or any change in,
any Applicable Law or any change in the interpretation or administration thereof
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
any of their respective Lending Offices) with any request or directive (whether
or not having the force of law) issued after the date hereof of any such
Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain any
Eurocurrency Rate Loan, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Parent Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Parent Borrower that such circumstances no longer exist, (i)
the obligations of the affected Lender or Lenders to make Eurocurrency Rate
Loans and the right of the relevant Revolving Borrower to convert any Revolving
Credit Loan of the affected Lender or Lenders or continue any Revolving Credit
Loan of the affected Lender or Lenders as a Eurocurrency Rate Loan shall be
suspended and thereafter such Revolving Borrower may select from the affected
Lender or Lenders only Alternate Base Rate Loans denominated in Dollars
hereunder, (ii) if any of the Lenders may not lawfully continue to maintain a
Dollar Eurocurrency Rate Loan to the end of the then current Interest Period
applicable thereto, the applicable Dollar Eurocurrency Rate Loan of the affected
Lender or Lenders shall immediately be converted to a Alternate Base Rate Loan
for the remainder of such Interest Period, (iii) if any of the Lenders may not
lawfully continue to maintain a Eurocurrency Rate Loan denominated in Euros,
Sterling or any Optional Currency to the end of the then current Interest Period
applicable thereto, then the relevant Revolving Borrower shall immediately repay
the applicable Eurocurrency Rate Loan of the affected Lender or Lenders, (iv) if
any of the Lenders may not lawfully continue to maintain a Dollar Competitive
Bid Loan which bears interest at a rate based on the Eurocurrency Rate to the
end of the then current Interest Period applicable thereto at such rate of
interest, such Dollar Competitive Bid Loan of the affected Lender shall
immediately be converted to a Alternate Base Rate Loan for the remainder of such
Interest Period and (v) if any of the Lenders may not lawfully continue to
maintain a Foreign Currency Competitive Bid Loan which bears interest at a rate
based on the Eurocurrency Rate to the end of the then current Interest Period
applicable thereto at such rate of interest, then the relevant Borrower shall
immediately repay the applicable Foreign Currency Competitive Bid Loan of the
affected Lender or Lenders. The Parent Borrower shall repay the outstanding
principal amount of any Dollar Competitive Bid Loans converted into Alternate
Base Rate Loans in accordance with clause (iv) of this Section 4.7.2, together
with all accrued but unpaid interest thereon on the last day of the Interest
Period applicable to such Dollar Competitive Bid Loans.
(b) If, after the date hereof, the introduction of, or any change in,
any Applicable Law or any change in the interpretation or administration thereof
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
any of their respective Lending Offices) with any request or directive (whether
or not having the force of law) issued after the date hereof of any such
Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or maintain Loans in
Euros, Sterling or any Revolving A Optional Currency or Revolving B Optional
56
Currency, as the case may be, and/or into any jurisdiction set forth for its
Class on Schedule 1.1(b), such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to
the Parent Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Parent Borrower that such circumstances no longer exist, (A)
the obligations of the affected Lender or Lenders to make or maintain Loans in
any such currency and/or into such jurisdiction set forth for its Class on
Schedule 1.1(b) and the right of the relevant Revolving Borrower to request or
continue any Revolving Credit Loan of the affected Lender or Lenders in such
currency and/or into such jurisdiction shall be suspended, and (B) if any of the
Lenders may not lawfully continue to maintain Loans in any such currency and/or
into any such jurisdiction to the end of the then current Interest Period
applicable thereto, then the relevant Revolving Borrower shall immediately repay
the applicable Loan of the affected Lender or Lenders.
4.7.3. Increased Costs. If, after the date hereof, the introduction
of, or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any of the Lenders (or any of their respective Lending Offices) with any
request or directive (whether or not having the force of law) issued after the
date hereof of such Authority, central bank or comparable agency:
(a) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any Loan,
Letter of Credit or L/C Application or shall change the basis of taxation of
payments to any of the Lenders (or any of their respective Lending Offices) of
the principal of or interest on any Loan, Letter of Credit or L/C Application or
any other amounts due under this Agreement in respect thereof (except for the
excluded taxes covered by Sections 4.10.1); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board other than those used to calculate
the Eurocurrency Rate), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Loan;
and the result of any event of the kind described in this Section 4.7.3, is to
increase the costs to any of the Lenders of maintaining any Eurocurrency Rate
Loan or Competitive Bid Loan or of issuing or participating in Letters of Credit
or to reduce the yield or amount of any sum received or receivable by any of the
Lenders under this Agreement or any Letter of Credit or L/C Application in an
amount deemed by such Lender to be material, then such Lender may promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify the Parent Borrower of such fact and demand compensation therefor and,
within fifteen (15) days after receipt by the Parent Borrower of such notice
from the Administrative Agent, the Parent Borrower shall pay (or shall cause the
relevant Borrower to pay) to such Lender such additional amount or amounts as
will compensate such Lender or Lenders for such increased cost or reduction;
provided, however, that to the extent any reduction in the rate of return on
such Lender's capital results both from its obligations hereunder and from
developments in its business or financial position not related to this
Agreement, such Lender shall, in determining the amount necessary to compensate
57
it under this Section 4.7.3, attempt in good faith to take account of the
relative contributions of such obligations hereunder and such other developments
or change in its financial position to such reduction. The Administrative Agent
and the applicable Lender will promptly notify the Parent Borrower of any event
of which it has knowledge which will entitle such Lender to compensation
pursuant to this Section 4.7.3; provided that the Administrative Agent shall
incur no liability whatsoever to the Lenders or the Parent Borrower in the event
it fails to do so. The amount of such compensation shall be determined, in the
applicable Lender's reasonable discretion, based upon the assumption that such
Lender funded its Revolving A Ratable Share or Revolving B Ratable Share, as the
case may be, of the Eurocurrency Rate Loans or the amount of any Competitive Bid
Loans made by such Lender, in the interbank eurocurrency market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth in reasonable detail
the basis for determining such amount or amounts necessary to compensate such
Lender shall be forwarded to the Parent Borrower through the Administrative
Agent and shall be conclusively presumed to be correct save for manifest error.
4.7.4. Additional Reserve Costs.
(a) If and so long as any Lender is required to make special deposits
with the Bank of England, to maintain reserve asset ratios or to pay fees, in
each case in respect of such Lender's Loans, such Lender may require the
relevant Borrower to pay, contemporaneously with each payment of interest on
each of such Loans, additional interest on such Loans at a rate per annum equal
to the Mandatory Costs Rate calculated in accordance with the formula and in the
manner set forth in Schedule 1.1(d).
(b) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements reflected in
the Mandatory Costs Rate) in respect of any of such Lender's Loans, such Lender
may require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Lender's Loans subject to such requirements, additional
interest on such Loans at a rate per annum specified by such Lender to be the
cost to such Lender of complying with such requirements in relation to such
Loans.
(c) Any additional interest owed pursuant to paragraphs (a) or (b)
above shall be determined by the relevant Lender, acting in good faith, which
determination shall be conclusive absent manifest error, and notified to the
relevant Borrower (with a copy to the Administrative Agent) at least five (5)
Business Days before each date on which interest is payable for the relevant
Loans, and such additional interest so notified to the relevant Borrower by such
Lender shall be payable to such Lender on each date on which interest is payable
for such Loans.
4.7.5. Mitigation. If any Lender demands compensation under Section
4.7.3 or Section 4.7.4 or if the obligation of any Lender to make Eurocurrency
Rate Loans is suspended under Section 4.7.2, then such Lender will use
reasonable efforts to designate a different Lending Office for each affected
Loan if such designation would avoid the need for, or reduce the amount of, such
compensation or permit such Lender to make and maintain Eurocurrency Rate Loans
58
under Section 4.7.2 and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate of such Lender setting
forth the additional amount or amounts required to compensate such Lender in
respect of any increased costs, the changes as a result of which such amounts
are due and the manner of computing such amounts shall be deemed conclusive,
provided that the determinations set forth in such certificate are made
reasonably and in good faith. If any Lender demands compensation from the Parent
Borrower under this Section 4.7 more than one hundred eighty (180) days after
such Lender had knowledge of the occurrence of the event giving rise to such
compensation, the Parent Borrower shall not be obligated to reimburse such
Lender for amounts incurred as a result of the occurrence of such event more
than one hundred eighty (180) days prior to the date on which the Lender made
such demand (provided that if the event giving rise to the compensation or
indemnification is retroactive, then the one hundred eighty (180) day period
referred to above shall be extended to include the period of retroactive
effect). Notwithstanding any other provisions of this Section 4.7, no Lender
shall demand compensation for any increased cost or reduction referred to above
if it shall not at the time be the general policy or practice of such Lender to
demand such compensation in similar circumstances under comparable provisions of
other credit agreements, if any.
4.7.6. Replacement of a Lender. If (a) any Lender demands compensation
under Section 4.7.3 or Section 4.7.4 (which compensation is not demanded by all
of the Lenders of the same Class) and the Parent Borrower deems such additional
amounts to be material, (b) the obligation of any Lender to make or maintain any
Loan is suspended under Section 4.7.1 or Section 4.7.2 or (c) any Lender is a
Defaulting Lender, then, in each case, the Parent Borrower may, so long as no
Default or Event of Default has occurred and is continuing, obtain, at the
Parent Borrower's expense (or at the expense of a Defaulting Lender whose
representation contained in clause (iii) of Section 2.1.3 proves to be false),
one or more other Lenders or, with the consent of the Administrative Agent, one
or more replacement financial institutions reasonably satisfactory to the
Administrative Agent (if not already a Lender) and willing to replace such
Lender, and such Lender shall execute and deliver to such replacement Lender an
Assignment and Assumption with respect to such Lender's entire interest under
this Agreement for an amount equal to the principal balance of all Loans and L/C
Obligations held by the affected Lender and all accrued interest and fees with
respect thereto through the date of such assignment, provided that (i) a Lender
that demands compensation under Section 4.7.3 or Section 4.7.4 shall not be
required to make any such assignment if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Parent Borrower to
require such assignment pursuant to clause (a) above cease to apply, (ii) the
Parent Borrower shall have paid to such affected Lender the compensation that it
is entitled to receive under Section 4.7 through the date of such assignment and
(iii) such assignment will result in a reduction in such compensation. Upon the
execution by such replacement Lender of such Assignment and Assumption and
compliance with the requirements of Section 13.8.2 hereof, such replacement
Lender shall succeed to all of such Lender's rights and duties under this
Agreement. If the Parent Borrower exercises its election under this Section
4.7.6 to replace a Lender, the Parent Borrower shall pay the registration and
processing fee payable to the Administrative Agent under Section 13.8.2.
59
Section 4.8 Indemnity.
Each Borrower hereby indemnifies each of the Lenders against any loss, cost
or expense incurred by a Lender as a result of (a) any failure by such Borrower
to borrow, convert or repay any amount in connection with any Eurocurrency Rate
Loan hereunder on the date specified therefor in the applicable Notice of
Borrowing or Notice of Conversion/Continuation or any Competitive Bid accepted
by such Borrower in accordance with the terms of this Agreement and (b) any
payment, prepayment or conversion of any Eurocurrency Rate Loan or Competitive
Bid Loan by such Borrower on a date other than the last day of the Interest
Period therefor, other than pursuant to Section 4.7.2. The amount of such loss
or expense shall be determined, in the applicable Lender's reasonable
discretion, based upon the assumption that such Lender funded its Revolving A
Ratable Share or Revolving B Ratable Share, as the case may be, of the
Eurocurrency Rate Loans, in the interbank eurocurrency market and using any
reasonable attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth in reasonable detail
the basis for determining such amount or amounts necessary to compensate such
Lender shall be forwarded to the relevant Borrower through the Administrative
Agent and shall be conclusively presumed to be correct save for manifest error.
The applicable Borrower shall pay the Administrative Agent for the account of
such Lender the amount shown as due on any such certificate within five Business
Days after receipt thereof.
Section 4.9 Capital Requirements.
If either (a) the introduction of, or any change or proposed change in, or
in the interpretation of, any Applicable Law, or (b) compliance with any
guideline or request issued after the date hereof from any central bank or
comparable agency or other Governmental Authority (whether or not having the
force of law), has or would have the effect of reducing the rate of return on
the capital of (other than by reason of the imposition of Taxes covered by
Sections 4.10.1 or 4.10.2), or has affected or would affect the amount of
capital required to be maintained by, any Lender or any corporation controlling
such Lender as a consequence of, or with reference to any Lender's Commitment
and other commitments of this type, below the rate which the Lender or such
other corporation could have achieved but for such introduction, change or
compliance by an amount such Lender deems material, the Parent Borrower shall
pay to such Lender from time to time as specified by such Lender additional
amounts sufficient to compensate such Lender or other corporation for such
reduction; provided, however, that to the extent any reduction in the rate of
return on such Lender's capital results both from its obligations hereunder and
from developments in its business or financial position not related to this
Agreement, such Lender shall, in determining the amount necessary to compensate
it under this Section, attempt in good faith to take account of the relative
contributions of such obligations hereunder and such other developments or
change in its financial position to such reduction. A certificate of such Lender
setting forth in reasonable detail the basis for determining such amounts
necessary to compensate such Lender shall be forwarded to the Parent Borrower
through the Administrative Agent and shall be conclusively presumed to be
correct save for manifest error. The applicable Borrower shall pay the
Administrative Agent for the account of such Lender the amount shown as due on
any such certificate within five Business Days after receipt thereof.
60
Section 4.10 Taxes.
4.10.1. Payments Free and Clear. Any and all payments by any Credit
Party under any Loan Document or under the Letters of Credit shall be made free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholding, and all liabilities with
respect thereto, excluding (i) in the case of each Lender and the Administrative
Agent, income, franchise or similar taxes imposed on (or measured by) its income
imposed by any Governmental Authority, (ii) in the case of each Lender, any
withholding taxes payable with respect to payments hereunder or under the other
Loan Documents under Applicable Laws (including, without limitation, any
statute, treaty, ruling, determination or regulation) in effect on the Closing
Date for such Lender (or such later date on which such Lender becomes a Lender
hereunder) or on the date, if any, on which such Lender changes any applicable
Lending Office by designating a different applicable Lending Office (other than
pursuant to Section 4.10.8(b)), but not excluding any withholding taxes payable
solely as a result of (1) any change in such laws occurring after the Closing
Date (or such later date on which such Lender becomes a Lender hereunder) or
after the date of designation of such new Lending Office, as the case may be, or
(2) the addition of any Foreign Subsidiary Borrower pursuant to Section
2.11.1(a), and (iii) any branch profits tax imposed by the United States of
America or any similar tax imposed by any other jurisdiction (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Credit Party shall
be required by law to deduct any Taxes from or in respect of any sum payable
under any Loan Document or under any Letter of Credit to any Lender or the
Administrative Agent, (A) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.10) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions been made, (B) such Credit
Party shall make such deductions, (C) such Credit Party shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with Applicable Law, and (D) such Credit Party shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 4.10.5. A Credit Party
shall not, however, be required to pay any amounts pursuant to clause (A) of the
preceding sentence to any Lender or the Administrative Agent not organized under
the laws of the United States of America or a state thereof (or the District of
Columbia) if such Lender or the Administrative Agent fails to comply with the
requirements of Section 4.10.6.
4.10.2. Stamp and Other Taxes. In addition, each Credit Party shall
pay any present or future stamp, registration, recordation or documentary taxes
or any other similar fees or charges or excise taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made by such Credit Party hereunder
(except for the excluded taxes covered by Sections 4.10.1) or from the
execution, delivery or registration of, or otherwise similarly with respect to,
this Agreement, the Loans, the Letters of Credit, the other Loan Documents, or
the perfection of any rights or security interest in respect thereto or the
enforcement of the rights of the Lenders under any Loan Document (hereinafter
referred to as "Other Taxes").
61
4.10.3. Indemnity.
(a) The relevant Credit Party shall indemnify each Lender and each
Agent (each a "Finance Party") for the full amount of Taxes that such Credit
Party should have withheld, but failed to withhold, pursuant to Section 4.10.1
and Other Taxes (including, without limitation, any Taxes and Other Taxes
imposed by any jurisdiction on amounts payable under this Section 4.10) paid by
such Finance Party and any liability (including interest and penalties, if any)
arising therefrom or with respect thereto.
(b) (i) In the event a claim against any Finance Party arises that is
covered by the indemnity provisions of this Section 4.10.3, notice shall be
given promptly by such Finance Party to the Parent Borrower (with a copy to the
Administrative Agent).
(ii) If the relevant Credit Party would be liable for the entire
amount of such claim pursuant to this Section 4.10.3, then the relevant
Credit Party and the Parent Borrower shall have the right to contest and
defend by all appropriate legal proceedings any such third-party claim and
to control all settlements of any such third-party claim (unless such
Finance Party agrees to assume the cost of settlement and to forgo such
indemnity) and to select lead counsel to defend any and all such
third-party claims at the sole cost and expense of Parent Borrower, as the
case may be; provided, however, that the Parent Borrower may not effect any
settlement that could result in any cost, expense or liability to any
Finance Party unless such Finance Party consents in writing to such
settlement, which consent shall not be unreasonably withheld. Any Finance
Party may select and engage counsel to participate in any defense, in which
event such counsel shall be at the sole cost and expense of the party
selecting and engaging such counsel. In connection with any such claim,
action or proceeding, the parties shall cooperate with each other and
provide each other with access to relevant books and records in their
possession.
(iii) If the relevant Credit Party would be liable for only a portion
of such claim pursuant to this Section 4.10.3, then the relevant Credit
Party and the Parent Borrower shall have the right to consult with such
Finance Party regarding such claim, any settlement and the selection of
lead counsel to defend such claim.
(iv) If any Finance Party shall become aware that it is or may be
entitled to receive a refund, credit or reduction (including interest and
penalties, if any) in respect of Taxes or Other Taxes, it promptly shall
notify the relevant Credit Party of the availability of such refund, credit
or reduction and shall, within thirty (30) days after receipt of a request
by the relevant Credit Party and the Parent Borrower pursue or timely claim
such refund, credit or reduction at the relevant Credit Party's expense. If
any Finance Party receives a refund or realizes a credit or reduction in
tax in respect of any Taxes or Other Taxes withheld by the relevant Credit
Party or for which such Finance Party has received payment from the
relevant Credit Party hereunder, it promptly shall repay the amount of such
refund to the relevant Credit Party, net of all out-of-pocket expenses of
such Finance Party and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided,
that the relevant Credit Party, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the relevant
62
Credit Party (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender
in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority.
4.10.4. No Requirement to Disclose Tax Returns. Nothing in this
Section 4.10 shall be construed to require any Finance Party to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the relevant Credit Party or any other person.
4.10.5. Evidence of Payment. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the Parent Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
4.10.6. Delivery of Tax Forms.
(a) Each Foreign Lender shall deliver to the Parent Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Foreign Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement substantially in the form of Exhibit I and a Form W-8BEN,
or any subsequent versions thereof or successors thereto, properly completed and
duly executed by such Foreign Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Credit
Parties under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Foreign Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Foreign
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Foreign Lender. Each Foreign Lender shall
promptly notify the Parent Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Parent Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Foreign Lender shall not be required to deliver any form pursuant
to this paragraph that such Foreign Lender is not legally able to deliver.
(b) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized or is not a resident for taxation purposes of such Foreign Subsidiary
Borrower's country of tax residence, shall upon written request by such Foreign
Subsidiary Borrower, deliver to such Foreign Subsidiary Borrower or the
applicable Governmental Authority or taxing authority, as the case may be, any
form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
tax (or to allow any such deduction or withholding to be at a reduced rate)
imposed on such payment under the laws of the jurisdiction under which such
Foreign Subsidiary Borrower is incorporated or organized or is otherwise a
resident for taxation purposes, provided that such Lender is legally entitled to
complete, execute and deliver such form or certificate and such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
63
4.10.7. Survival. Without prejudice to the survival of any other
agreement of the Credit Parties and the Finance Parties hereunder, the
agreements and obligations of the Credit Parties and the Finance Parties
contained in this Section 4.10 shall survive the payment in full of the
Obligations and the termination of the Aggregate Commitment, but shall be
limited in duration to the applicable statute of limitations for Taxes or Other
Taxes for which indemnification or repayment is sought.
4.10.8. Additional Provisions.
(a) The relevant Credit Party shall not be required to indemnify any
Lender or to pay any additional amounts to any Lender in respect of Taxes or
Other Taxes pursuant to this Section 4.10 to the extent that (i) the obligation
to pay such additional amounts would not have arisen but for a failure by such
Lender to comply with the provisions of this Section 4.10 or (ii) the obligation
with respect to such Taxes or Other Taxes existed on the Closing Date (or later
date on which such Lender became a Lender hereunder) in respect of such Lender
or, with respect to payments to a newly designated Lending Office, existed on
the date such Lender designated such new Lending Office with respect to a Loan
(other than pursuant to Section 4.10.8(b)).
(b) Any Lender or the Administrative Agent claiming any additional
amount payable pursuant to this Section 4.10 shall use all reasonable efforts
(consistent with legal and regulatory restrictions) that would avoid the need
for or reduce the amount of any such additional amounts which may thereafter
accrue (including but not limited to filing any certificate or document
reasonably requested by the Parent Borrower or changing the jurisdiction of its
applicable Lending Office).
ARTICLE V
CONDITIONS OF CLOSING AND BORROWING
Section 5.1 Conditions to Closing.
The obligation of each Lender to make Extensions of Credit and the
obligations of the Issuing Lenders to issue Letters of Credit hereunder shall
become effective on the date (such date, the "Closing Date") on which each of
the following conditions precedent is satisfied (or waived in accordance with
Section 13.10):
5.1.1. Executed Loan Documents. This Agreement and all other
applicable Loan Documents shall have been duly authorized, executed and
delivered to the Administrative Agent by the parties thereto, shall be in full
force and effect and no default (including without limitation a Default) shall
exist thereunder, and the Credit Parties shall have delivered original
counterparts thereof to the Administrative Agent.
5.1.2. Closing Certificates; etc.
64
(a) Officers' Certificates. The Administrative Agent shall have
received a certificate from a Responsible Officer (or such other Person as is
reasonably acceptable to the Administrative Agent), in form and substance
reasonably satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Parent Borrower contained in this
Agreement and the other Loan Documents are true and correct in all material
respects; that the Parent Borrower is not in violation of any of the covenants
contained in this Agreement and the other Loan Documents; that, after giving
effect to the transactions contemplated by this Agreement, no Default or Event
of Default has occurred and is continuing; and that each of the closing
conditions has been satisfied or waived (assuming satisfaction of the
Administrative Agent where not advised otherwise).
(b) General Certificates. The Administrative Agent shall have received
a certificate of the secretary, assistant secretary or general counsel of each
Credit Party (or such other Person as is reasonably acceptable to the
Administrative Agent) certifying as to the incumbency and genuineness of the
signature of each officer of such Credit Party executing Loan Documents to which
it is a party and certifying that attached thereto is a true, correct and
complete copy of (A) the articles of incorporation or comparable organizational
documents, if any, of such Credit Party and all amendments thereto, certified as
of a recent date (1) in the case of Credit Parties (other than Foreign
Subsidiary Borrowers), by the appropriate Governmental Authority in its
jurisdiction of incorporation for such Credit Parties and (2) in the case of
each Foreign Subsidiary Borrower, by such Foreign Subsidiary Borrower, (B) the
bylaws or comparable organizational documents, if any, of such Credit Party as
in effect on the date of such certifications, (C) resolutions duly adopted by
the Board of Directors or comparable governing body of such Credit Party
authorizing, as applicable, the borrowings contemplated hereunder and the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 5.1.2(c), except in the case of the Foreign
Subsidiary Borrowers.
(c) Certificates of Good Standing. The Administrative Agent shall have
received long-form certificates as of a recent date of the good standing or
active status, as applicable, of the Credit Parties (other than the Foreign
Subsidiary Borrowers) under the laws of their respective jurisdictions of
organization and short-form certificates as of a recent date of the good
standing of the Parent Borrower under the laws of each other jurisdiction where
the Parent Borrower is qualified to do business and where a failure to be so
qualified would have a Material Adverse Effect.
(d) Opinions of Counsel. The Administrative Agent shall have received
opinions in form and substance reasonably satisfactory to the Administrative
Agent of the Assistant General Counsel of the Parent Borrower, of Hunton &
Xxxxxxxx LLP, counsel to the domestic Credit Parties addressed to the
Administrative Agent and the Lenders with respect to the domestic Credit
Parties, the Loan Documents and such other matters as the Administrative Agent
shall reasonably request.
5.1.3. Consents; Defaults.
65
(a) Governmental and Third Party Approvals. All governmental and third
party approvals necessary or, in the reasonable discretion of the Administrative
Agent, advisable in connection with the Refinancing and the financing
contemplated hereby shall have been obtained and be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the Refinancing or the financing thereof.
Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting the transactions contemplated by this
Agreement and the other Loan Documents or otherwise referred to herein or
therein.
(b) No Event of Default. No Default or Event of Default shall have
occurred and be continuing.
5.1.4. No Material Adverse Effect. Since December 31, 2005 nothing
shall have occurred (and neither the Administrative Agent nor the Lenders shall
have become aware of any facts or conditions not previously known) which has had
a Material Adverse Effect.
5.1.5. Financial Matters.
(a) Financial Statements. The Administrative Agent and each Lender
shall have received the Annual Report on Form 10-K of the Parent Borrower for
the fiscal year ended as of December 31, 2005 and the Quarterly Report on Form
10-Q of the Parent Borrower for the six-month period ended as of June 30, 2006.
(b) Payment at Closing. The Parent Borrower shall have paid any
accrued and unpaid fees or commissions due hereunder (including, without
limitation, reasonable legal fees and expenses) to the Administrative Agent and
Lenders, and to any other Person such amount as may be due thereto in connection
with the transactions contemplated hereby, including all taxes, fees and other
charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents.
5.1.6. Litigation. Except as set forth in the Current SEC Reports, as
of the Closing Date, there shall be no actions, suits or proceedings pending or,
to the best knowledge of the Parent Borrower, threatened (i) with respect to
this Agreement or any other Loan Document or (ii) which the Administrative Agent
or the Required Lenders shall reasonably determine would have a Material Adverse
Effect.
5.1.7. Termination of Prior Bank Commitment. The Prior Bank Commitment
shall have been (or will be upon the initial borrowing hereunder and the
application of the proceeds thereof) (i) paid in full, (ii) the obligations of
the Credit Parties thereunder satisfied and the commitment of the lenders
thereunder terminated and (iii) either (A) all outstanding promissory notes
issued by the Parent Borrower with respect thereto canceled and the originally
executed copies thereof returned to the Parent Borrower or the Administrative
Agent (who shall promptly forward such notes to the Parent Borrower) or (B) the
Administrative Agent otherwise shall have received evidence satisfactory to it
that such Prior Bank Commitment has been terminated.
66
5.1.8. USA Patriot Act. The Parent Borrower shall have delivered to
the Administrative Agent all documentation and other information requested by
the Administrative Agent that is required to satisfy applicable "know your
customer" and anti-money laundering rules and regulations, including without
limitation the USA Patriot Act.
The Administrative Agent shall notify the Parent Borrower and the Lenders
of the Closing Date, and such notice shall be conclusive and binding. The Loan
Documents executed by each of the Credit Parties shall be delivered to the
Administrative Agent at its offices located in Charlotte, North Carolina.
Section 5.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder, if any) is
subject to the satisfaction of the following conditions precedent on the
relevant date of borrowing or date of issuance, as applicable:
5.2.1. Continuation of Representations and Warranties. The
representations and warranties contained in Article VI (other than, after the
Closing Date, in Section 6.1.7(c)) shall be true and correct in all material
respects on and as of such borrowing or issuance date with the same effect as if
made on and as of such date, except for any representation and warranty made as
of an earlier date, which representation and warranty shall remain true and
correct in all material respects as of such earlier date.
5.2.2. No Existing Default. Immediately after the making of the
requested borrowing, no Default or Event of Default shall have occurred and be
continuing hereunder (i) on the date of borrowing with respect to such Loan or
after giving effect to the Loans to be made on such date or (ii) on the date of
issuance with respect to such Letter of Credit or after giving effect to such
Letters of Credit on such date, provided that no Foreign Subsidiary Borrower,
having suffered any event, condition or circumstance that otherwise would
constitute a Bankruptcy Event but for the fact that such Foreign Subsidiary
Borrower has no Obligations then outstanding under this Agreement, shall be
permitted to request any Extension of Credit so long as such event, condition or
circumstance that would otherwise constitute a Bankruptcy Event continues to
exist.
5.2.3. Initial Extension of Credit to Foreign Subsidiary Borrowers. No
later than 5 days prior to the date of the initial Extension of Credit requested
by any Foreign Subsidiary Borrower that is a party to this Agreement as of the
date hereof, the Administrative Agent shall have received the final form of an
opinion to be dated as of the date of such initial Extension of Credit,
addressed to the Administrative Agent and each of the Lenders and dated the date
such Extension of Credit is to take effect, from counsel to such Foreign
Subsidiary Borrower, which opinion shall be in form and substance reasonably
satisfactory to the Administrative Agent.
5.2.4. Delivery of Notice. The Administrative Agent shall have
received a Notice of Borrowing from the Parent Borrower in accordance with
Section 2.2.2 and a Notice of Account Designation specifying the account or
accounts to which the proceeds of any Loans made after the Closing Date are to
be disbursed, or in the case of a request that any Issuing Lender issue a Letter
of Credit (or amend, extend or renew an outstanding Letter of Credit), an
Issuing Lender shall have received an L/C Application from the Parent Borrower
in accordance with Section 3.2.
67
The occurrence of the Closing Date and the acceptance by the Credit Parties of
the benefits of each Extension of Credit hereunder shall constitute a
representation and warranty by the Parent Borrower to the Administrative Agent
and each of the Lenders that all the conditions specified in Section 5.1 and 5.2
and applicable to such borrowing have been satisfied as of that time. All of the
certificates, legal opinions and other documents and papers referred to in
Section 5.1 and 5.2, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Administrative Agent.
Section 5.3 Initial Extension of Credit to Each New Foreign Subsidiary
Borrower.
No Lender shall be required to make any Loans or issue any Letters of
Credit to any Foreign Subsidiary Borrower that was not a party to this Agreement
as of the date hereof unless the Administrative Agent has received (i) a Foreign
Subsidiary Borrower Joinder Agreement, (ii) opinions of counsel to such Foreign
Subsidiary Borrower in form and substance reasonably satisfactory to the
Administrative Agent and (iii) such other documentation or other information as
the Administrative Agent or the Lenders would have otherwise been entitled to
receive under Section 5.1 had such Foreign Subsidiary Borrower been a party to
this Agreement as of the date hereof.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties.
To induce the Administrative Agent, the Issuing Lenders and the Lenders to
enter into this Agreement and to induce the Lenders to make Extensions of
Credit, the Parent Borrower hereby represents and warrants to the Administrative
Agent and Lenders that:
6.1.1. Corporate Existence. Each Credit Party (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation; (b) has the requisite power and authority to own its
property and assets and to carry on its business as now conducted; (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not have a Material
Adverse Effect; and (d) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, except where the failure to have
such Governmental Approvals would not have a Material Adverse Effect.
6.1.2. Non-Contravention. Each Credit Party has the corporate power to
execute and deliver and to perform its obligations under the Loan Documents and
to borrow hereunder. The execution, delivery, and performance by each of the
Credit Parties of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval of the shareholders of such Credit Party, (ii) violate
any provision of any law, rule, regulation (including, without limitation,
Regulation T, U or X of the Board), order, writ, judgment, injunction, decree,
68
determination, or award presently in effect having applicability to such Credit
Party or any Restricted Subsidiary or of the charter or bylaws of such Credit
Party or any Restricted Subsidiary, (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease, or instrument to which such Credit Party or any Restricted Subsidiary is
a party or by which it or its properties may be bound or affected, or (iv)
result in the creation of a Lien of any nature upon or with respect to any of
the properties now owned or hereafter acquired by such Credit Party or any
Restricted Subsidiary; and each Credit Party and each Restricted Subsidiary is
not in default under any such order, writ, judgment, injunction, decree,
determination, or award or any such indenture, agreement, lease, or instrument
or in default under any such law, rule, or regulation, which default would have
a Material Adverse Effect.
6.1.3. No Consent. No authorization, consent, approval, license,
exemption of, or filing or registration with, or any other action in respect of
any Governmental Authority is or will be necessary for the valid execution,
delivery or performance by any Credit Party of the Loan Documents to which it is
a party.
6.1.4. Execution and Delivery; Binding Obligations. Each Loan Document
has been duly executed and delivered by each Credit Party to which it is a
party. The Loan Documents constitute legal, valid, and binding obligations of
the Credit Parties enforceable in accordance with their respective terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
6.1.5. Title to Properties. The Parent Borrower and each Restricted
Subsidiary has good and marketable title to all of the material assets and
properties owned by it, and valid leasehold interests in all material assets and
properties leased by it, free and clear of all Liens except such as are
permitted by Section 9.2 and except for covenants, restrictions, rights,
easements and minor irregularities in title which do not interfere with the
occupation, use and enjoyment by the Parent Borrower or such Restricted
Subsidiary of such properties and assets in the normal course of business as
presently conducted or materially impair the value thereof for such business.
6.1.6. Subsidiaries. Each Subsidiary of the Parent Borrower is listed
on Schedule 6.1.6, including the jurisdiction of organization, classes of
capital stock, ownership and ownership percentages thereof. All the outstanding
capital stock of the Parent Borrower's Subsidiaries shown in Schedule 6.1.6
hereto as being owned by the Parent Borrower or any of its Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable and
are free and clear of any Lien except as set forth on Schedule 9.2. No
Subsidiary owns any capital stock of the Parent Borrower. Each of the Restricted
Subsidiaries of the Parent Borrower is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; and each
Restricted Subsidiary (i) has the requisite power and authority to own its
property and assets and to carry on its business as now conducted, (ii) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not have a Material
Adverse Effect and (iii) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, except where the failure to have
such Governmental Approvals would not have a Material Adverse Effect.
69
6.1.7. Financial Statements.
(a) The consolidated balance sheet of the Parent Borrower and its
Subsidiaries as at December 31, 2005, and the related consolidated statements of
operations, comprehensive income, shareholders' equity and cash flows of the
Parent Borrower and its Subsidiaries for the fiscal year then ended, certified
by KPMG LLP, independent public accountants, copies of which have been delivered
to the Lenders, fairly present the consolidated financial condition of the
Parent Borrower and its Subsidiaries as at such date and the consolidated
results of the operations of the Parent Borrower and its Subsidiaries for the
period ended on such date, all prepared in accordance with GAAP applied on a
consistent basis.
(b) The unaudited consolidated balance sheet of the Parent Borrower
and its Subsidiaries as at March 31, 2006, the related unaudited consolidated
statement of operations, shareholders' equity and cash flows of the Parent
Borrower and its Subsidiaries for the fiscal quarter then ended, copies of which
have been delivered to the Lenders, fairly present the consolidated financial
condition of the Borrower and its Subsidiaries as at such date and the
consolidated results of the operations of the Borrower and its Subsidiaries for
the period ended on such date, subject to normal recurring year-end adjustments,
all prepared in accordance with GAAP (except for the omission of notes) applied
on a consistent basis.
(c) Since December 31, 2005, there has been no material adverse change
in the financial condition or results of operations of the Parent Borrower and
Restricted Subsidiaries taken as a whole that has had a Material Adverse Effect.
6.1.8. Litigation.
(a) There are no actions, suits, or proceedings pending or, to the
knowledge of a Responsible Officer, threatened, against any Credit Party or any
Restricted Subsidiary or the properties of any Credit Party or any Restricted
Subsidiary before any Governmental Authority or arbitrator that would have a
Material Adverse Effect.
(b) Neither any Credit Party nor any Restricted Subsidiary is in
default (in any respect which would have a Material Adverse Effect) with respect
to any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect and applicable to any Credit Party or
any Restricted Subsidiary.
6.1.9. Taxes. The Parent Borrower and each Restricted Subsidiary has
filed all material Tax returns required to be filed and paid all Taxes shown
thereon to be due, including interest and penalties, or provided adequate
reserves, in accordance with GAAP, for the payment thereof.
70
6.1.10. ERISA.
(a) Each Plan has complied with and has been administered in all
material respects in accordance with the applicable provisions of ERISA and the
Code. No Pension Plan has terminated under circumstances giving rise to
liability of the Parent Borrower or any ERISA Affiliate to the PBGC under
Section 4062, 4063 or 4064 of ERISA, which liability remains unpaid in whole or
in part, and no lien under Section 4068 of ERISA exists with respect to the
assets of the Parent Borrower or any ERISA Affiliate. No Reportable Event has
occurred with respect to any Pension Plan, except for Reportable Events that
would not have a Material Adverse Effect. No accumulated funding deficiency
within the meaning of Section 302 of ERISA or Section 412 of the Code (whether
or not waived) exists with respect to any Pension Plan, nor does any lien under
Section 302 of ERISA or Section 412 of the Code exist with respect to any
Pension Plan.
(b) Neither the Parent Borrower nor any ERISA Affiliate has completely
or partially withdrawn from any one or more Multiemployer Plans under
circumstances which have given rise to or would give rise to withdrawal
liability under ERISA which, in the aggregate, would have a Material Adverse
Effect and which has not been fully paid as of the date hereof. Neither the
Parent Borrower nor any ERISA Affiliate has received notice that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has
terminated under Title IV of ERISA, nor, to the best knowledge of the Parent
Borrower, is any such reorganization, insolvency or termination reasonably
likely to occur, where such reorganization, insolvency or termination has
resulted in an increase in the contributions required to be made to such
Multiemployer Plan in an amount that would have a Material Adverse Effect.
Neither the Parent Borrower nor any ERISA Affiliate has failed to make any
contribution to a Multiemployer Plan which is required under ERISA or an
applicable collective bargaining agreement in an amount which is material in the
aggregate (except to the extent there is a good faith dispute as to whether any
contribution is owed, the amount owed or the existence of facts that would give
rise to a withdrawal). Neither the Parent Borrower nor any ERISA Affiliate would
become subject to any liability under ERISA in an amount that would have a
Material Adverse Effect if the Parent Borrower or any such ERISA Affiliate were
to withdraw completely from all Multiemployer Plans as of June 30, 2004.
(c) Each Foreign Pension Plan has been maintained in compliance with
its terms and with the requirements of any and all Applicable Law and has been
maintained, where required, in good standing with applicable Governmental
Authorities except where the failure to do any of the foregoing has not had, or
would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect. All contributions required to be made with
respect to a Foreign Pension Plan have been timely made, except where the
failure to so timely make such contribution has not had, or would not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect. No Credit Party or any Restricted Subsidiary thereof has incurred any
obligation in connection with the termination of, or withdrawal from, any
Foreign Pension Plan, except for any obligations which have not had, or would
not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. The present value of the accumulated benefit
liabilities under each Foreign Pension Plan does not exceed the current fair
market value of the assets of such Foreign Pension Plan allocable to such
benefit liabilities (any such excess a "value shortfall"), except for any such
value shortfalls which have not had, or would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
71
6.1.11. No Default. No Default and no Event of Default has occurred
and is continuing.
6.1.12. Federal Reserve Regulations.
(a) Neither the Parent Borrower nor any Subsidiary of the Parent
Borrower is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(b) No part of the proceeds of the Loans will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for
any purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations of the Board, including, without limitation,
Regulations T, U or X.
6.1.13. Investment Company Act. Neither the Parent Borrower nor any
Subsidiary is an "investment company" or a company controlled by an "investment
company" as each term is defined in the Investment Company Act of 1940 or
subject to regulation thereunder.
6.1.14. Environmental Matters. In the ordinary course of its business,
the Parent Borrower conducts an ongoing review of the effect of Environmental
Laws and laws relating to occupational safety and health on the business,
operations and properties of the Parent Borrower and its Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including any capital or operating expenditures required for clean-up, closure
or restoration of properties presently or previously owned, any capital or
operating expenditures required to achieve or maintain compliance with
environmental protection and occupational health and safety standards imposed by
law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of this review, the Parent Borrower represents and warrants that applicable
Environmental Laws and laws relating to occupational health and safety do not,
and would not have a Material Adverse Effect. The Parent Borrower and each
Restricted Subsidiary has obtained and holds all material permits, licenses and
approvals required under Environmental Laws which are necessary for the conduct
of its business and the operation of its facilities, and the Parent Borrower and
its Restricted Subsidiaries have not received any written notice of any failure
to be in compliance with the terms and conditions of such permits, licenses and
approvals, which failure would have a Material Adverse Effect.
6.1.15. Compliance with Law. Each Credit Party has timely filed all
material reports, documents and other materials required to be filed by it under
all Applicable Law with any Governmental Authority, has retained all material
records and documents required to be retained by it under all Applicable Law,
and is otherwise in compliance with all Applicable Law in respect of the conduct
of its business and the ownership and operation of its properties, except in
each case to the extent that the failure to comply therewith, individually or in
the aggregate, would not have a Material Adverse Effect.
72
6.1.16. Foreign Subsidiary Borrowers.
With respect to any Foreign Subsidiary Borrower from time to time
party hereto:
(a) The Obligations of such Foreign Subsidiary Borrower under this
Agreement, when executed and delivered or otherwise joined by such Foreign
Subsidiary Borrower, will rank at least pari passu with all unsecured Debt for
borrowed money of such Foreign Subsidiary Borrower.
(b) Such Foreign Subsidiary Borrower is subject to civil and
commercial law with respect to its obligations under this Agreement and any
Note, and the execution, delivery and performance by such Foreign Subsidiary
Borrower of this Agreement constitute and will constitute private and commercial
acts and not public or governmental acts. No such Foreign Subsidiary Borrower
nor any of its property, whether or not held for its own account, has any
sovereign immunity from any suit or proceeding, from jurisdiction of any court
or from set-off or any legal process (whether service or notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of
judgment or other similar sovereign immunity) under laws of the jurisdiction in
which such Foreign Subsidiary Borrower is organized and existing in respect of
its obligations under this Agreement or any Note. Such Foreign Subsidiary
Borrower hereby waives, to the extent permitted by Applicable Laws, immunity
(sovereign or otherwise) to which it or any of its properties would otherwise be
entitled from any legal action, suit or proceeding, from jurisdiction of any
court and from set-off or any legal process (whether service or notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) under the laws of the jurisdiction in which
such Foreign Subsidiary Borrower is organized and existing in respect of its
obligations under this Agreement and any Note.
(c) The execution, delivery and performance by each Foreign Subsidiary
Borrower of this Agreement, any Note or the other Loan Documents is, under
applicable foreign exchange control regulations of the jurisdiction in which
such Foreign Subsidiary Borrower is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained or
(ii) such as cannot be made or obtained until a later date (provided any
notification or authorization described in immediately preceding clause (ii)
shall be made or obtained as soon as is reasonably practicable).
(d) Each borrowing by, and Letter of Credit issued for the account of,
any Foreign Subsidiary Borrower hereunder shall constitute a representation and
warranty by each of the Parent Borrower and such Foreign Subsidiary Borrower as
of the date of such borrowing or such issuance (but not as of any other date)
that the representations and warranties contained in this Section 6.1.16 shall
be true as of the date of such borrowing.
Section 6.2 Accuracy and Completeness of Information.
The financial statements referenced in Section 6.1.7, the financial
statements provided to the Administrative Agent pursuant to Sections 7.1.1(a)
and 7.1.1(b) and the written information with respect to the Credit Parties
contained in this Agreement, taken as a whole, does not contain any material
misstatement of fact or omit to state any material fact necessary to make the
73
statements therein, in light of the circumstances under which such statements
were then made not misleading. There is no fact known to any Responsible Officer
of the Parent Borrower or any equivalent officer of any other Credit Party as of
the Closing Date that would have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the Administrative Agent and the Lenders as of the Closing Date for
use in connection with the transactions contemplated hereby.
Section 6.3 Labor Matters.
Neither any Credit Party nor any Restricted Subsidiary is engaged in any
unfair labor practice under the National Labor Relations Act, as amended, that
would have a Material Adverse Effect. There is (a) no unfair labor practice
complaint pending against any Credit Party or any Restricted Subsidiary or, to
the knowledge of any Responsible Officer, threatened against any Credit Party or
any Restricted Subsidiary, before the National Labor Relations Board, except for
any such complaint that would not have a Material Adverse Effect; (b) no strike,
labor dispute, slowdown or stoppage pending against any Credit Party or any
Restricted Subsidiary or, to the knowledge of any Responsible Officer,
threatened against any Credit Party or any Restricted Subsidiary, except for any
such strike, labor dispute, slowdown or stoppage that would not have a Material
Adverse Effect; and (c) no union representation question exists with respect to
the employees of any Credit Party or any Restricted Subsidiary, except for any
such question that would not have a Material Adverse Effect.
Section 6.4 Survival of Representations and Warranties. Etc.
All representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate related hereto, or
any of the Loan Documents (including but not limited to any such representation
or warranty made in or in connection with any amendment thereto) shall
constitute representations and warranties made under this Agreement. All
representations and warranties made under this Article VI shall be made or
deemed to be made at and as of the Closing Date, shall survive the Closing Date
and shall not be waived by the execution and delivery of this Agreement, any
investigation made by or on behalf of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments have expired or been terminated, unless consent has been obtained in
the manner set forth in Section 13.10 hereof, the Parent Borrower will:
Section 7.1 Financial Statements. Etc.
7.1.1. Financial Statements. Furnish or cause to be furnished to the
Administrative Agent at its address as set forth in Section 13.1, or such other
office as may be designated in writing by the Administrative Agent from time to
time for prompt delivery to each Lender:
74
(a) annually, as soon as available, but in any event no later than 120
days after the last day of each Fiscal Year, a consolidated balance sheet of the
Parent Borrower and its Subsidiaries, as at such last day of such Fiscal Year,
and consolidated statements of operations, comprehensive income, shareholders'
equity and cash flow for the Parent Borrower and its Subsidiaries for such
Fiscal Year, each prepared in accordance with GAAP, in reasonable detail, and
audited by KPMG LLP or any other firm of independent certified public
accountants of recognized national standing and whose opinion shall not be
qualified with respect to scope limitations imposed by the Parent Borrower or
any Subsidiary, the status of the Parent Borrower and its Subsidiaries as a
going concern or the accounting principles followed by the Parent Borrower or
any Subsidiary not in accordance with GAAP;
(b) as soon as available, but in any event no later than 60 days after
the end of each of the first three fiscal quarterly periods of each Fiscal Year,
a consolidated balance sheet of the Parent Borrower and its Subsidiaries as at
the last day of such fiscal quarter and consolidated statements of operations,
shareholders' equity and cash flows for the Parent Borrower and its Subsidiaries
for such fiscal quarter, and for the then current Fiscal Year through the end of
such fiscal quarter, prepared in accordance with GAAP (except for omission of
notes and subject to year-end adjustments);
(c) substantially concurrently with the delivery of financial
statements pursuant to clause (a) above (but in any event, no later than the
time such financial statements are required to be delivered pursuant to clause
(a) above), a certificate signed by the chief financial officer or the chief
executive officer of the Parent Borrower to the effect that such officer has
made due inquiry and that to the best of the knowledge of such officer except as
stated therein no Default or Event of Default has occurred hereunder and that
such officer has made due inquiry and that to the best of the knowledge of such
officer except as stated therein no default has occurred under any other
agreement to which the Parent Borrower is a party or by which it is bound, or by
which any of its properties or assets may be affected, which would have a
Material Adverse Effect and specifying in reasonable detail the exceptions, if
any, to such statements;
(d) substantially concurrently with the delivery of financial
statements pursuant to clauses (a) and (b) above (but in any event, no later
than the time such financial statements are required to be delivered pursuant to
clauses (a) and (b) above), a statement of a financial officer of the Parent
Borrower showing the Leverage Ratio and Interest Coverage Ratio by reasonably
detailed calculation thereof as of the last day of the fiscal period to which
such financial statements relate;
(e) substantially concurrently with the delivery of financial
statements pursuant to clause (b) above (but in any event, no later than the
time such financial statements are required to be delivered pursuant to clause
(b) above), a certificate signed by a financial officer of the Parent Borrower
and stating that such officer has made due inquiry and that to the best of his
knowledge no Default or Event of Default has occurred and is continuing, or, if
a Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof;
75
(f) substantially concurrently with the delivery of financial
statements pursuant to clauses (a) and (b) above (but in any event, no later
than the time such financial statements are required to be delivered pursuant to
clauses (a) and (b) above), a statement of a financial officer of the Parent
Borrower showing the aggregate principal amount of Competitive Bid Loans
outstanding as of the last day of the fiscal period as to which such financial
statements relate;
(g) immediately, but in any event within three (3) Business Days after
a Responsible Officer obtains knowledge of the occurrence of any Default or
Event of Default, a certificate of the chief financial officer or the chief
executive officer of the Parent Borrower setting forth the details thereof and
the action which the Parent Borrower is taking or proposes to take with respect
thereto; and
Any financial statement required to be delivered pursuant to this Section
7.1.1 shall be deemed to have been delivered on the date on which the Parent
Borrower posts such financial statement on its website on the Internet at
xxx.xxxxxxxxxxxxx.xxx (or a successor website) or when such financial statement
is posted on the SEC's website on the Internet at xxx.xxx.xxx and, in each case,
such financial statement is readily accessible to the Administrative Agent on
such date; provided that the Parent Borrower shall give notice of any such
posting to the Administrative Agent by electronic mail pursuant to procedures
approved by the Administrative Agent (who shall then give notice of any such
posting to the Lenders); provided, further, that the Parent Borrower shall
deliver paper copies of any such financial statement to the Administrative Agent
if the Administrative Agent or any Lender requests the Parent Borrower to
deliver such paper copies until notice to cease delivering such paper copies is
given by the Administrative Agent.
7.1.2. Books and Records. Keep, and cause each Restricted Subsidiary
to keep, proper books of record and accounts in which full, true and correct
entries in accordance with GAAP shall be made of all dealings or transactions in
relation to its business and activities and the business and activities of its
Restricted Subsidiaries.
7.1.3. Additional Information. Furnish, and cause each Restricted
Subsidiary to furnish, with reasonable promptness such other financial
information as any Lender may reasonably request, provided that the Parent
Borrower shall not be required to furnish any information that would result in
violation of any confidentiality agreement by which it is bound but, at the
request of a Lender, shall use its reasonable best efforts to obtain a waiver of
such agreement to permit furnishing of such information under this provision.
7.1.4. SEC Filings. Promptly after the same are available, furnish or
make available copies of all current reports on Form 8-K, quarterly reports on
Form 10-Q, annual reports on Form 10-K (or similar corresponding reports) and
registration statements or statements which the Parent Borrower or any
Subsidiary may be required to file with the Securities and Exchange Commission
(excluding registration statements filed pursuant to employee stock option or
benefit plans); provided that any reports required to be furnished pursuant to
this Section 7.1.4 shall be deemed to have been furnished on the date on which
the Parent Borrower posts such report on its website on the Internet at
xxx.xxxxxxxxxxxxx.xxx (or a successor website) or when such report is posted on
the SEC's website on the Internet at xxx.xxx.xxx and, in each case, such report
is readily accessible to the Administrative Agent on such date; provided that
the Borrower shall give notice of any such posting to the Administrative Agent
76
by electronic mail pursuant to procedures approved by the Administrative Agent
(who shall then give notice of any such posting to the Lenders); provided,
further, that the Borrower shall deliver paper copies of any such report to the
Administrative Agent if the Administrative Agent or any Lender requests the
Borrower to deliver such paper copies until notice to cease delivering such
paper copies is given by the Administrative Agent.
7.1.5. Change in Debt Rating. Within three (3) Business Days after any
Responsible Officer receives notice of any change in the Applicable LT Rating,
furnish written notice of such change and the new Applicable LT Rating to the
Administrative Agent.
7.1.6. Notice of Environmental Matters. Furnish, and cause each
Restricted Subsidiary to furnish, to the Administrative Agent for prompt
delivery to each Lender, as soon as reasonably practicable after receipt by the
Parent Borrower or any Restricted Subsidiary, a copy of any written notice or
claim to the effect that the Parent Borrower or any Restricted Subsidiary is
liable to any Person as a result of the presence or release of any Contaminant
which claim would have a Material Adverse Effect.
Section 7.2 Notice of Litigation and Other Matters.
Promptly (but in no event later than three (3) Business Days after a
Responsible Officer obtains knowledge thereof) furnish telephonic (confirmed in
writing to the Administrative Agent for delivery to each Lender) or written
notice to the Administrative Agent for delivery to each Lender of:
(a) the commencement of all proceedings by or before any Governmental
Authority and all actions and proceedings in any court or before any arbitrator
against any of the Credit Parties or any Restricted Subsidiary thereof or any of
their respective properties, assets or businesses (i) which in the reasonable
judgment of the Credit Parties would have a Material Adverse Effect, (ii) with
respect to any material Debt of the Credit Parties or any of their Restricted
Subsidiaries or (iii) with respect to any Loan Document;
(b) any notice of any violation received by any of the Credit Parties
or any Restricted Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws, which in the
reasonable judgment of the Credit Parties in any such case would have a Material
Adverse Effect;
(c) the occurrence of any Internal Control Event which in the
reasonable judgment of the Parent Borrower would have a Material Adverse Effect,
together with a written statement of a Responsible Officer specifying the nature
of such Internal Control Event, and the action that the Parent Borrower has
taken and proposes to take with respect thereto; and
(d) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of a Plan under Section 401(a) of the Code
(along with a copy thereof) which would have a Material Adverse Effect, (ii) all
notices received by any of the Credit Parties or any ERISA Affiliate of the
PBGC's intent to terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan, (iii) all notices received by any of the Credit
Parties or any ERISA Affiliate from any Multiemployer Plan sponsor concerning
the imposition or amount of withdrawal liability pursuant to Section 4202 of
77
ERISA which would have a Material Adverse Effect, (iv) the Credit Parties
obtaining knowledge or reason to know that the Credit Parties or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA, (v) the occurrence of a Reportable Event, (vi) a failure to make any
required contribution to a Pension Plan which would have a Material Adverse
Effect, and (vii) the creation of any lien in favor of the PBGC or a Pension
Plan which would have a Material Adverse Effect.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all the Obligations have been paid and satisfied in full and the
Commitments have expired or been terminated, unless consent has been obtained in
the manner set forth in Section 13.10 hereof, the Parent Borrower will:
Section 8.1 Payment of Taxes. etc.
Pay and discharge, and cause each Restricted Subsidiary to pay and
discharge, all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which penalties attach thereto (other than penalties
in the nature of interest), and all lawful material claims which, if unpaid,
might become a lien or charge upon any properties of the Parent Borrower or any
Restricted Subsidiary; provided, however, that neither the Parent Borrower nor
any Restricted Subsidiary shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings and against which it is maintaining adequate reserves in accordance
with GAAP.
Section 8.2 Maintenance of Insurance.
Maintain, and cause each Restricted Subsidiary to maintain, insurance with
responsible and reputable insurance companies or associations (or, to the extent
consistent with prudent business practice, through its own program of
self-insurance) in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Parent Borrower or such Restricted Subsidiary
operates.
Section 8.3 Preservation of Corporate Existence, etc.
Preserve and maintain, and cause each Restricted Subsidiary to preserve and
maintain, its corporate existence and material rights, franchises and
privileges; provided, however, that nothing herein contained shall prevent any
merger or consolidation permitted by Section 9.3; and provided further that the
Parent Borrower shall not be required to preserve or to cause: any Restricted
Subsidiary to preserve its corporate existence or any such rights, franchises or
privileges if the Parent Borrower shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Parent Borrower and
its Restricted Subsidiaries taken as a whole and that the loss thereof is not
disadvantageous in any material respect to the Parent Borrower and its
Restricted Subsidiaries taken as a whole.
78
Section 8.4 Compliance with Laws, etc.
Comply, and cause each Restricted Subsidiary to comply, with the
requirements of all Applicable Laws (other than laws, rules, regulations, and
orders which are not final and are being contested in good faith by proper
proceedings) of any Governmental Authority (including Labor Laws and
Environmental Laws), noncompliance with which would have a Material Adverse
Effect.
Section 8.5 Compliance with ERISA and the Code.
Comply, and cause each of its ERISA Affiliates to comply, with the minimum
funding standards under ERISA with respect to its Pension Plans and use its best
efforts, and cause each ERISA Affiliates to use its best efforts, to comply in
all material respects with all other applicable provisions of ERISA and the Code
and the regulations and interpretations promulgated thereunder.
Section 8.6 Compliance with Contracts, etc.
Perform, and cause each Restricted Subsidiary to perform, all of its
obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other agreement, contract or
instrument by which it is bound, except where the failure to do so would not
have a Material Adverse Effect.
Section 8.7 Access to Properties.
Permit, and cause its Restricted Subsidiaries to permit, any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice to the Parent Borrower, to visit the properties of the
Parent Borrower or any Restricted Subsidiary at reasonable times and as often as
reasonably requested.
Section 8.8 Conduct of Business.
Engage in, and cause its Restricted Subsidiaries to engage in, only those
businesses in which the Parent Borrower and its Restricted Subsidiaries are
engaged on the Closing Date and such other businesses reasonably related or
complementary thereto or in furtherance thereof, or in other lines of business
which are insignificant when viewed in the overall context of the businesses
then engaged in by the Parent Borrower and its Restricted Subsidiaries taken as
a whole.
Section 8.9 Use of Proceeds.
Use the proceeds of the Loans solely for the purposes set forth in Section
2.1.2.
Section 8.10 Additional Guarantors.
In the event that any Person (other than any Subsidiary of the Parent
Borrower existing on the Closing Date) becomes a wholly-owned (directly or
indirectly) Material Domestic Subsidiary after the Closing Date pursuant to an
acquisition (whether of stock or assets), merger, or as a result of the creation
79
of such Person and the subsequent transfer to such Person of any property or
assets, the Parent Borrower shall, within thirty (30) days after the end of the
fiscal quarter in which such Person becomes a Material Domestic Subsidiary,
cause such Material Domestic Subsidiary to become a Guarantor by execution and
delivery of a Guarantor Joinder Agreement and by delivery of such other
documentation as the Administrative Agent may reasonably request in connection
therewith, including, without limitation, certified resolutions of such Material
Domestic Subsidiary, certified organizational and authorizing documents of such
Material Domestic Subsidiary, favorable opinions of counsel to such Material
Domestic Subsidiary (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the Guarantor Joinder Agreement)
and other items of the type required to be delivered pursuant to Section 5.1.2,
all in form, content and scope reasonably satisfactory to the Administrative
Agent; provided, however, that no such Person which becomes a Material Domestic
Subsidiary pursuant to any such acquisition or merger shall be required to
become a Guarantor if the incurrence of such obligation would violate any
material agreement binding on such Person and in existence on the date of such
acquisition or merger.
ARTICLE IX
NEGATIVE COVENANTS
Until all the Obligations have been paid and satisfied in full and the
Commitments have expired or been terminated, unless consent has been obtained in
the manner set forth in Section 13.10 hereof, the Parent Borrower will not:
Section 9.1 Financial Covenants.
9.1.1. Maximum Leverage Ratio. Commencing with the end of the
first fiscal quarter ending after the Closing Date, permit the Leverage Ratio as
of the end of each fiscal quarter to be greater than 60%.
9.1.2. Minimum Interest Coverage Ratio. Commencing with the end
of the first fiscal quarter ending after the Closing Date, permit the Interest
Coverage Ratio as of the end of each fiscal quarter to be less than 3.00 to
1.00.
Section 9.2 Limitations on Liens.
Create, incur, assume or suffer to exist, or permit any Restricted
Subsidiary to create, incur, assume or suffer to exist, any Lien on, or with
respect to, any of their assets or properties (including without limitation
shares of capital stock or other ownership interests), real or personal, whether
now owned or hereafter acquired, except:
(a) Liens existing on the Closing Date and set forth on Schedule 9.2;
(b) Liens for taxes, assessments and other governmental charges or levies
not yet due or as to which the period of grace, if any, related thereto has not
expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
80
(c) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts, or (ii) to secure (or to obtain
letters of credit that secure) the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other than Capital
Leases), performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of any material parcel of real property or
impair the use thereof in the ordinary conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Restricted Subsidiary
existing at the time such Restricted Subsidiary becomes a Subsidiary of a Credit
Party and not incurred in contemplation thereof, as long as the outstanding
principal amount of the Debt secured thereby is not voluntarily increased by
such Restricted Subsidiary after the date such Restricted Subsidiary becomes a
Subsidiary of such Credit Party;
(h) Liens on the property or assets of the Credit Parties or any
Restricted Subsidiary securing Debt which is incurred to finance the
acquisition, construction or improvement on such property or assets, provided
that (i) each such Lien shall be created simultaneously with, or within twelve
months after, the acquisition (or the completion of the construction or
improvement) of the related property or assets; (ii) each such Lien does not at
any time encumber any property other than the related property or assets
financed by such Debt; (iii) the principal amount of Debt secured by each such
Lien is not increased; and (iv) the principal amount of Debt secured by each
such Lien shall at no time exceed 100% of the original purchase price of such
related property or assets at the time acquired and the costs of any such
construction or improvements on such property or assets, as applicable;
(i) Liens consisting of judgment or judicial attachment Liens,
provided that (i) the claims giving rise to such Liens are being diligently
contested in good faith by appropriate proceedings, (ii) adequate reserves for
the obligations secured by such Liens have been established and (iii)
enforcement of such Liens has been stayed;
(j) Liens created or deemed to exist in connection with any asset
securitization program (including any related filings of any financing
statements), but only to the extent that such Liens attach to the assets
actually sold, contributed, financed or otherwise conveyed or pledged in
connection with such securitization program;
81
(k) Liens on property or assets of the Parent Borrower or any
Restricted Subsidiary securing indebtedness owing to the Parent Borrower or any
other Credit Party;
(l) Liens on coal reserves leased by the Borrower or by any Restricted
Subsidiary as lessee, securing Debt to the lessors thereof, arising out of such
leases;
(m) Liens on any Margin Stock purchased or carried by the Parent
Borrower or any of its Subsidiaries;
(n) The extension, renewal or replacement of any Lien permitted by
clauses (a), (g), or (h), but only if the principal amount of Debt secured by
the Lien immediately prior thereto is not increased and the Lien is not extended
to other property; and
(o) In addition to any Lien permitted by clauses (a) through (m),
immediately after giving effect to any concurrent repayment of secured Debt,
Liens securing Debt of the Parent Borrower or any Restricted Subsidiary so long
as the sum of (A) the aggregate principal amount of all such secured Debt plus
(B) the aggregate amount of Consolidated Lease Rentals (excluding Consolidated
Lease Rentals under Leases in effect as of December 31, 2005 (and any renewal,
extension or replacement thereof) and Leases with respect to property not owned
by the Parent Borrower on such date), discounted to present value at ten percent
(10%), compounded annually, arising out of all Sale and Leaseback Transactions
to which the Parent Borrower or any of its Restricted Subsidiaries is then a
party (including Sale and Leaseback Transactions, if any, entered into pursuant
to Section 9.9), does not exceed 10% of Consolidated Net Worth; provided that
the sale or transfer of (i) coal, oil, gas or other minerals in place for a
period of time until, or in an amount such that, the transferee will realize
therefrom a specified amount of money (however determined) or a specified amount
of such coal or other minerals or (ii) any other interest in property of the
character commonly referred to as a "production payment" shall not be deemed to
constitute Debt secured by a Lien.
Section 9.3 Disposition of Debt and Shares of Restricted Subsidiaries:
Issuance of Shares by Restricted Subsidiaries: Consolidation. Merger or
Disposition of Assets.
(a) Sell or otherwise dispose of, or permit any Restricted Subsidiary
to sell or otherwise dispose of, any capital stock or any Debt of any Restricted
Subsidiary, (b) in the case of any Restricted Subsidiary, issue, sell or
otherwise dispose of any of such Restricted Subsidiary's capital stock (other
than directors' qualifying shares, to satisfy preemptive rights or in connection
with a split or combination of shares or a dividend in shares) except to the
Parent Borrower or another Restricted Subsidiary, (c) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or permit any
Restricted Subsidiary to liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or (d) directly or indirectly, or permit any
Restricted Subsidiary to directly or indirectly, consolidate with or merge with
or into or sell, lease or otherwise dispose of all or substantially all of its
assets to any Person, unless, after giving effect thereto, all of the following
conditions shall be met:
82
(i) the Leverage Ratio shall not be greater than 0.60 to 1.00 and the
Interest Coverage Ratio shall not be less than 3.00 to 1.00;
(ii) in the case of a merger, amalgamation or consolidation, (A) if
the Parent Borrower is a party thereto, the Parent Borrower shall be the
surviving corporation, (B) if the Parent Borrower is not a party thereto
and another Credit Party is a party thereto, a Credit Party shall be the
surviving corporation and (C) if no Credit Party is a party thereto, a
Restricted Subsidiary shall be the surviving corporation;
(iii) in the case of a liquidation, winding-up or dissolution, any
Credit Party (other than the Parent Borrower) or any Restricted Subsidiary
may liquidate, wind-up or dissolve itself into a Credit Party or a
Restricted Subsidiary; and
(iv) no Default or Event of Default has occurred and is continuing.
Provided that the conditions of this Section 9.3 are satisfied, none of the
foregoing provisions shall be deemed to prohibit the Parent Borrower or any of
its Restricted Subsidiaries from selling, transferring, assigning or otherwise
disposing of Margin Stock for fair market value or selling, contributing,
financing or otherwise conveying or pledging assets in connection with any asset
securitization program permitted by Section 9.2(j).
Section 9.4 Transactions with Affiliates.
Except as permitted in Section 9.10(j), engage, or permit any Restricted
Subsidiary to engage, directly or indirectly, in any material transaction with
an Affiliate (other than a Credit Party) on terms more favorable to the
Affiliate than would have been obtainable in arm's-length dealing.
Section 9.5 Compliance with Regulations T, U and X.
In the case of the Parent Borrower and any Subsidiary of the Parent
Borrower, purchase or carry any Margin Stock or incur, create or assume any
obligation for borrowed money or other liability or make any investment, capital
contribution, loan, advance or extension of credit or sell or otherwise dispose
of any assets or pay any dividend or make any other distribution to its
shareholders or take or permit to be taken any other action or permit to occur
or exist any event or condition if such action, event or condition would result
in this Agreement, the Loans, the use of the proceeds thereof or the other
transactions contemplated hereby violating Regulation T, U or X.
Section 9.6 Hedging Agreements.
Enter into or permit to exist, or permit any Restricted Subsidiary to enter
into or permit to exist, Hedging Agreements for the purpose of speculation and
not for the purpose of hedging risks associated with the businesses of the
Parent Borrower and its Restricted Subsidiaries.
83
Section 9.7 ERISA.
(a) Terminate, or permit any of its ERISA Affiliates to terminate, any
Pension Plan under circumstances which would reasonably result in a material
liability of the Parent Borrower or any ERISA Affiliate to the PBGC, or permit
to exist the occurrence of any Reportable Event or any other event or condition
which presents a material risk of such a termination by the PBGC; (b) engage, or
permit any of its Subsidiaries or any Pension Plan to engage, in a "prohibited
transaction" (within the meaning of Section 406 of ERISA or Section 4975 of the
Code) that would reasonably result in material liability of the Parent Borrower
or any of its Restricted Subsidiaries; (c) fail, or permit any of its Restricted
Subsidiaries to fail, to make any contribution to a Multiemployer Plan which is
required by ERISA or an applicable collective bargaining agreement in an amount
which is material (except to the extent there is a good faith dispute as to
whether any contribution is owed, the amount owed or the existence of facts that
would give rise to a withdrawal); or (d) completely or partially withdraw, or
permit any of its ERISA Affiliates to completely or partially withdraw, from a
Multiemployer Plan, if such complete or partial withdrawal will result in any
material withdrawal liability under Title IV of ERISA; or (e) enter into any new
Plan or modify any existing Plan so as to increase its obligations thereunder
which could result in any material liability to the Parent Borrower or any ERISA
Affiliate. For purposes of this Section 9.7, an amount is material if it would
have a Material Adverse Effect after aggregation with all other liabilities
described in this Section 9.7.
Section 9.8 Limitations on Acquisitions. Acquire, or permit any
Restricted Subsidiary to acquire, all or any portion of the capital stock or
other ownership interest in any Person which is not then a Restricted Subsidiary
or any assets collectively constituting a business unit of a Person which is not
then a Restricted Subsidiary, unless after giving effect to such acquisition on
a pro forma basis, no Default or Event of Default has occurred and is
continuing.
Section 9.9 Sale Leaseback Transactions.
Sell or transfer, or permit any Restricted Subsidiaries to sell or
transfer, any material property or assets owned by the Parent Borrower or any
Restricted Subsidiary on the Closing Date to any Person (other than any Credit
Party) with the intention of taking back a lease of such property or assets or
any similar property or assets, if the sum of (A) the amount of Consolidated
Lease Rentals, discounted to present value at 10%, compounded annually, which
would arise out of such proposed Sale and Leaseback Transaction, plus (B) the
aggregate amount of Consolidated Lease Rentals (excluding Consolidated Lease
Rentals under Leases in effect as of December 31, 2005 (and any renewal,
extension or replacement thereof) and Leases with respect to property not owned
by the Parent Borrower on such date), discounted to present value at ten percent
(10%), compounded annually, arising out of all other Sale and Leaseback
Transactions to which the Parent Borrower or any of its Restricted Subsidiaries
is then a party, plus (C) the aggregate principal amount of all Debt of the
Parent Borrower or any Restricted Subsidiary secured by Liens incurred in
reliance on Section 9.2(o), would exceed 10% of Consolidated Net Worth.
84
Section 9.10 Limitations on Investments.
Make or permit to exist, or permit any Restricted Subsidiary to make or
permit to exist, any Investment, other than Investments which are:
(a) cash and Cash Equivalents;
(b) current assets generated in the ordinary course of business;
(c) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;
(d) Investments consisting of capital stock, obligations, securities
or other property received in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(e) advances to employees for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business;
(f) advances or loans to directors, officers and employees that do not
exceed $25,000,000 in the aggregate at any one time outstanding;
(g) advances or loans to customers and suppliers in the ordinary
course of business in an aggregate amount consistent with the past practice of
the Person making such advance or loan;
(h) loans to shareholders intended to constitute dividends on, or
payment on account of, any capital stock;
(i) Investments or Support Obligations by the Parent Borrower and its
Restricted Subsidiaries existing on the Closing Date;
(j) Investments by the Parent Borrower or its Restricted Subsidiaries
in any Credit Party or any other Subsidiary (provided that such Investment would
not otherwise constitute a breach of Section 9.8);
(k) Support Obligations of the Parent Borrower or its Restricted
Subsidiaries for the benefit of any Credit Party or any other Subsidiary;
(l) acquisitions permitted by Section 9.8 and Investments consisting
of capital stock, obligations, securities or other property received in
connection with any merger or sale permitted by Section 9.3;
(m) Investments in connection with the management of Pension Plans and
other benefit plans of the Parent Borrower and its Subsidiaries (including
without limitation The Pittston Company Employee Welfare Benefit Trust);
(n) Hedging Agreements permitted by Section 9.6;
85
(o) advances or loans to any Person with respect to the deferred
purchase price of property, services or other assets in dispositions permitted
by Section 9.3; and
(p) Investments of a nature not contemplated in the foregoing
subsections in an amount not to exceed 10% of Consolidated Net Worth as of the
end of the Fiscal Year most recently ended for which audited financial
statements are available.
ARTICLE X
GUARANTY
Section 10.1 Guaranty of Payment.
Subject to Section 10.8 below, each Guarantor hereby unconditionally and
irrevocably guarantees to each Lender and the Administrative Agent the prompt
payment of the Guaranteed Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise). Any such
payment shall be made at such place and in the same currency as such relevant
Guaranteed Obligation is payable. This guaranty is a guaranty of payment and not
solely of collection and is a continuing guaranty and shall apply to all
Guaranteed Obligations whenever arising.
Section 10.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of this Agreement, or any other agreement or instrument referred to herein, to
the fullest extent permitted by Applicable Law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor. Each Guarantor agrees that this
guaranty may be enforced by the Lenders without the necessity at any time of
resorting to or exhausting any security or collateral and without the necessity
at any time of having recourse to this Agreement or any other Loan Document or
any collateral, if any, hereafter securing the Guaranteed Obligations or
otherwise and each Guarantor hereby waives the right to require the Lenders to
proceed against any other Guarantor or any other Person (including a
co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against any other
Guarantor (or any other guarantor of the Guaranteed Obligations) for amounts
paid under this guaranty until such time as the Lenders have been paid in full,
all Commitments under this Agreement have been terminated and no Person or
Governmental Authority shall have any right to request any return or
reimbursement of funds from the Lenders in connection with monies received under
this Agreement. Each Guarantor further agrees that nothing contained herein
shall prevent the Lenders from suing in any jurisdiction on this Agreement or
any other Loan Document or foreclosing its security interest in or Lien on any
collateral, if any, securing the Guaranteed Obligations or from exercising any
other rights available to it under this Agreement or any instrument of security,
if any, and the exercise of any of the aforesaid rights and the completion of
any foreclosure proceedings shall not constitute a discharge of any Guarantor's
obligations hereunder; it being the purpose and intent of each Guarantor that
its obligations hereunder shall be absolute, independent and unconditional under
86
any and all circumstances. Neither a Guarantor's obligations under this guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever (i) by an impairment, modification, change,
release or limitation of the liability of any other Guarantor, (ii) by reason of
the bankruptcy or insolvency of such other Guarantor, (iii) by reason of the
application of the laws of any foreign jurisdiction or (iv) by reason of the
location of such other Guarantor in any foreign jurisdiction. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Guaranteed Obligations and notice of or proof of reliance of by the
Administrative Agent or any Lender upon this guaranty or acceptance of this
guaranty. The Guaranteed Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this guaranty. All dealings between the
Parent Borrower and the Guarantors, on the one hand, and the Administrative
Agent and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this guaranty.
Section 10.3 Modifications.
Each Guarantor agrees that (a) all or any part of the security which
hereafter may be held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests or
Liens which hereafter may be held, if any, for the Guaranteed Obligations or the
properties subject thereto; (c) the time or place of payment of the Guaranteed
Obligations may be changed or extended, in whole or in part, to a time certain
or otherwise, and may be renewed, increased or accelerated, in whole or in part;
(d) the Parent Borrower and any other party liable for payment under this
Agreement may be granted indulgences generally; (e) any of the provisions of
this Agreement or any other Loan Document may be modified, amended or waived;
(f) any party (including any co-guarantor) liable for the payment thereof may be
granted indulgences or be released; and (g) any deposit balance for the credit
of the Parent Borrower or any other party liable for the payment of the
Guaranteed Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Guaranteed Obligations, all without notice to or further assent
by such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
Section 10.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this guaranty by the Lenders and of
all Extensions of Credit to the Parent Borrower by the Lenders; (b) presentment
and demand for payment or performance of any of the Guaranteed Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
this Agreement) with respect to the Guaranteed Obligations or with respect to
any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any Lien, if any, hereafter
securing the Guaranteed Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such Liens, if any; (e) all other notices
to which the Parent Borrower might otherwise be entitled in connection with the
guaranty evidenced by this Article X; and (f) demand for payment under this
guaranty.
87
Section 10.5 Reinstatement.
The obligations of each Guarantor under this Article X shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent, each Issuing Lender and each Lender on demand for all
reasonable costs and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by the Administrative Agent, such Issuing
Lender or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
Section 10.6 Remedies.
Each Guarantor agrees that, as between such Guarantor, on the one hand, and
the Administrative Agent, the Issuing Lenders and the Lenders, on the other
hand, the Guaranteed Obligations may be declared to be forthwith due and payable
as provided in Section 11.2 (and shall be deemed to have become automatically
due and payable in the circumstances provided in Section 11.2) notwithstanding
any stay, injunction or other prohibition preventing such declaration (or
preventing such Guaranteed Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration
(or such Guaranteed Obligations being deemed to have become automatically due
and payable), such Guaranteed Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by such Guarantor.
Section 10.7 Subrogation. Each Guarantor hereby agrees that until
the payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments it shall not exercise any right or
remedy arising by reason of any performance by it of its guarantee in Section
10.1, whether by subrogation or otherwise, against any Credit Party, any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
Section 10.8 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein, to the
extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
Applicable Law relating to fraudulent conveyances or transfers) then the
obligations of such Guarantor hereunder shall be limited to the maximum amount
that is permissible under Applicable Law (as now or hereinafter in effect).
Section 10.9 Termination of Guaranty Upon Divestiture.
The obligations of any Guarantor under this Article X shall automatically
terminate as to such Guarantor upon any consolidation, merger, sale or other
disposition made in accordance with Section 9.3 as a result of which such
Guarantor is no longer a Subsidiary of the Parent Borrower immediately after the
consummation of such transaction and any outstanding amounts owing in respect of
such obligations shall have been paid in full.
88
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1 Events of Default.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any Governmental Authority or otherwise:
11.1.1. Default in Payment of Principal of or Interest or Fees on
Loans and Reimbursement Obligation. Any Borrower shall default in any payment of
principal of, or any interest or fees on, any Loan or Reimbursement Obligation
when and as due (whether at maturity, by reason of acceleration or otherwise),
and such default shall continue unremedied for three (3) Business Days.
11.1.2. Other Payment Default. Any Borrower shall default in the
payment when and as due (whether at maturity, by reason of acceleration or
otherwise) of any other amounts owing on any Loan or Reimbursement Obligation or
the payment of any other Obligation, and such default shall continue unremedied
for three (3) Business Days after written notice thereof from the Administrative
Agent or any Lender.
11.1.3. Misrepresentation. Any representation, warranty or statement
made or deemed to be made by any Credit Party under this Agreement, any Loan
Document or any amendment hereto or thereto or in any certificate delivered to
the Administrative Agent or to any Lender pursuant hereto and thereto, shall at
any time prove to have been incorrect in any material respect when made or
deemed made.
11.1.4. Default in Performance of Certain Covenants. The Parent
Borrower shall default in the performance or observance of any covenant or
agreement contained in Sections 9.1, 9.3, 9.5, or 9.8.
11.1.5. Default in Performance of Other Covenants and Conditions. Any
Credit Party shall default in the performance or observance of any term,
covenant, condition or agreement contained in this Agreement (other than as
specifically provided for in Sections 11.1.1 through 11.1.4) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
the earlier of a Responsible Officer having actual knowledge of such default or
receipt by the Parent Borrower of written notice thereof from the Administrative
Agent or any Lender.
11.1.6. Debt Cross-Default. The Parent Borrower or any Restricted
Subsidiary shall (a) default in the payment when due, beyond any grace period
permitted from time to time, of any Debt (other than Debt incurred by any Credit
Party under this Agreement) heretofore or hereafter issued, assumed, guaranteed,
contracted or incurred by it, and the aggregate amount of such Debt equals or
89
exceeds $25,000,000 (or equivalent), (b) default in the performance or
observance of any other covenant or provision of any agreement or instrument
under or by which any Debt (other than Debt incurred by any Credit Party under
this Agreement) is created, evidenced or secured, if the effect of such default
pursuant to this clause (b) is to cause, or to permit the holder or holders of
such Debt (or a trustee or agent on its or their behalf) to cause, and such
holder or holders (or a trustee or agent on its or their behalf) does cause,
such Debt to become due prior to its stated maturity, and the aggregate amount
of the Debt the maturity of which is so accelerated pursuant to this clause (b)
equals or exceeds $25,000,000 (or equivalent), or (c) be required to prepay,
repurchase, defease or redeem any Debt (other than (A) Debt incurred by any
Credit Party under this Agreement, (B) the redemption of any preferred stock
classified as Debt pursuant to any mandatory redemption provision, and (C) any
conversion of Debt (including preferred stock classified as Debt) to capital
stock pursuant to any conversion right or option) prior to the maturity thereof
other than by regularly scheduled principal payments if the aggregate amount of
such Debt which is required to be prepaid, repurchased, defeased or redeemed
equals or exceeds $25,000,000.
11.1.7. Change in Control. A Change in Control shall have occurred.
11.1.8. Voluntary Bankruptcy Proceeding. The Parent Borrower, any
Guarantor or any Foreign Subsidiary Borrower with Obligations then outstanding
under this Agreement shall (i) commence a voluntary case under any Debtor Relief
Laws (as now or hereafter in effect), (ii) file a petition seeking to take
advantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such Debtor Relief Laws, (iv) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its
inability to pay its debts as they become due, (vi) make a general assignment
for the benefit of creditors, or (vii) take any corporate action for the purpose
of authorizing any of the foregoing.
11.1.9. Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against the Parent Borrower, any Guarantor or any Foreign
Subsidiary Borrower with Obligations then outstanding under this Agreement in
any court of competent jurisdiction seeking (i) relief under any Debtor Relief
Law, (ii) any writ or warrant of attachment, distraint or execution or similar
process against all or any substantial part of the assets of the Parent
Borrower, any Guarantor or any Foreign Subsidiary Borrower with Obligations then
outstanding under this Agreement and is not released, vacated or fully bonded
within sixty (60) days after its issue or levy or (iii) the appointment of a
trustee, receiver, custodian, liquidator or the like for the Parent Borrower,
any Guarantor or any Foreign Subsidiary Borrower with Obligations then
outstanding under this Agreement or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall
continue without dismissal or stay for a period of sixty (60) consecutive days,
or an order granting the relief requested in such case or proceeding (including,
but not limited to, an order for relief under any such Debtor Relief Laws) shall
be entered.
11.1.10. Similar Events. Any event occurs or any proceeding is taken
with respect to the Parent Borrower, any Guarantor or any Foreign Subsidiary
Borrower with Obligations then outstanding under this Agreement in any
jurisdiction to which it is subject which has an effect equivalent or similar to
any of the events set forth in Sections 11.1.8 or 11.1.9.
90
11.1.11. Judgment. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $25,000,000 in any
Fiscal Year shall be entered against the Parent Borrower or any Restricted
Subsidiary by any court and such judgment or order shall not, within sixty (60)
days after entry thereof, be bonded, discharged or stayed pending appeal, or
shall not be discharged within sixty (60) days after the expiration of such
stay.
11.1.12. Guaranty. At any time after the execution and delivery
thereof, the guaranty given by a Guarantor hereunder or any provision thereof
shall cease to be in full force or effect as to such Guarantor, except as
provided in Sections 10.8 and 10.9, or such Guarantor or any Person acting by or
on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under such guaranty.
11.1.13. ERISA. An event described in each clause (i), (ii) and (iii)
below shall have occurred: (i) any Pension Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof under
Section 412 of the Code or Section 302 of ERISA or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or Section 303 or 304 of ERISA, a Reportable Event shall have occurred,
a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Pension
Plan subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 and an event described in
subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043
shall be reasonably expected to occur with respect to such Pension Plan within
the following thirty (30) days, any Pension Plan which is subject to Title IV of
ERISA shall have had or is likely to have a trustee appointed to administer such
Pension Plan, any Pension Plan which is subject to Title IV of ERISA is, shall
have been or is likely to be terminated or to be the subject of termination
proceedings under ERISA, any Pension Plan shall terminate for purposes of Title
IV of ERISA, any Pension Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Pension Plan or a Foreign
Pension Plan has not been timely made, the Credit Parties or any of their
Subsidiaries or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Pension Plan under Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401 (a)(29),
4971 or 4975 of the Code or on account of a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code, or the Credit Parties or any of their Subsidiaries has incurred or
is likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Pension Plans or Foreign Pension Plans; (ii) there shall result from
any such event or events the imposition of a Lien, the granting of a security
interest or a liability or a material risk of such a Lien being imposed, such
security interest being granted or such liability being incurred, and (iii) such
Lien, security interest or liability, individually, or in the aggregate, has a
Material Adverse Effect.
91
Section 11.2 Remedies.
Upon the occurrence of an Event of Default, with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Parent
Borrower and each of the other Credit Parties:
11.2.1. Acceleration: Termination of Facilities. Declare the principal
of and interest on the Loans and the Reimbursement Obligations at the time
outstanding, and all other amounts owed to the Lenders and to the Administrative
Agent under this Agreement or any of the other Loan Documents (including,
without limitation, all L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents required
thereunder) and all other Obligations, to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Credit Facilities and any right of any
Borrower to request borrowings or Letters of Credit thereunder; provided, that
upon the occurrence of an Event of Default specified in Sections 11.1.8, 11.1.9
or 11.1.10 with respect to any of the Credit Parties, the Credit Facilities
shall be automatically terminated and all Obligations shall automatically become
due and payable.
11.2.2. Letters of Credit.
(a) (i) With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph and (ii) in the event of a repayment under
Section 2.4.2, require the relevant Borrower at such time to deposit or cause to
be deposited in a cash collateral account opened by the Administrative Agent
(the "Cash Collateral Account") an amount equal to the Dollar Equivalent of the
aggregate then undrawn and unexpired amount of such Letters of Credit (or in the
amount required under Section 2.4.2). In the case of any such Letter of Credit
denominated in Euros, Sterling or any Optional Currency, the Dollar Equivalent
of the amount deposited in respect of such Letter of Credit shall be calculated
at the end of each calendar month in accordance with the last sentence of
Section 3.2. In the event that the Dollar Equivalent of such amount at the time
of any such calculation exceeds the amount deposited in such Cash Collateral
Account with respect to such Letter of Credit, the Parent Borrower agrees to
promptly deposit or cause to be deposited into such Cash Collateral Account an
amount equal to such excess. Amounts held in such Cash Collateral Account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof, if any, remaining after all
such Letters of Credit shall have expired or been fully drawn upon shall be
applied to repay any other unpaid Obligations. After all such Letters of Credit
shall have expired or been fully drawn upon, the Reimbursement Obligations shall
have been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such Cash Collateral Account shall be promptly returned to
the relevant Borrower. If any Borrower is required to provide cash collateral
pursuant to Section 2.4.2, such amount, to the extent not applied as aforesaid,
shall be returned to the relevant Borrower on demand, provided that after giving
effect to such return (a) no repayment is required under Sections 2.4.2(a) or
2.4.2(b) and (b) no Default or Event of Default shall have occurred and be
continuing at such time.
92
(b) Each Borrower hereby grants to the Administrative Agent, for the
benefit of the Lenders, a Lien upon and security interest in its Cash Collateral
Account and all amounts held therein from time to time as security for the
Extensions of Credit for the account of such Borrower, and for application to
its Reimbursement Obligations and as set forth in Section 2.4.2(c) as and when
the same shall arise. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account for the
benefit of the Lenders and such Borrower shall have no interest therein. Other
than any interest on the investment of such amounts in Cash Equivalents, which
investments shall be made at the direction of such Borrower (unless a Default or
Event of Default shall have occurred and be continuing, in which case the
determination as to investments shall be made at the option and in the
discretion of the Administrative Agent), amounts in the Cash Collateral Account
shall not bear interest. Interest and profits, if any, on such investments shall
accumulate in such account.
11.2.3. Rights of Collection. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Obligations.
11.2.4. Prepayment and Conversion of Foreign Currency Loans. Demand
that any or all of the then outstanding Foreign Currency Loans be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on
the last day of the then current Interest Period with respect thereto and on and
after such date all amounts accruing and owed to the Lenders in respect of such
Foreign Currency Loans shall accrue and be payable in Dollars at the rates
otherwise applicable hereunder; provided, that upon the occurrence of an Event
of Default specified in Sections 11.1.8, 11.1.9 or 11.1.10 with respect to any
of the Credit Parties, outstanding Foreign Currency Loans shall be automatically
redenominated into Dollars in the amount of the Dollar Equivalent thereof.
Section 11.3 Rights and Remedies Cumulative; Non-Waiver; etc.
The enumeration of the rights and remedies of the Administrative Agent and
the Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Credit Parties, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
93
ARTICLE XII
THE AGENTS
Section 12.1 Appointment.
Each of the Lenders hereby irrevocably designates and appoints Wachovia as
Administrative Agent and Wachovia Bank, National Association, London Branch, and
Wachovia Capital Finance Corporation (Canada) as Multicurrency Agents of such
Lender under this Agreement and the other Loan Documents for the term hereof and
each such Lender irrevocably authorizes each Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Agents by the terms of this Agreement and such other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or
such other Loan Documents, the Agents shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the other Loan Documents or otherwise exist against the Agents. Any
reference to the Agents in this Article XII shall be deemed to refer to Wachovia
solely in its capacity as Administrative Agent and not in its capacity as a
Lender.
Section 12.2 Delegation of Duties.
The Agents may execute any of their respective duties under this Agreement
and the other Loan Documents by or through any agent or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agents shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by such Agent with reasonable care.
Section 12.3 Exculpatory Provisions.
Neither any Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or the other Loan Documents (except for actions
occasioned solely by its or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Credit Party or
any of its Subsidiaries or any officer thereof contained in this Agreement or
the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by any Agent under or in
connection with, this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents or for any failure of any Credit Party or
any of its Subsidiaries to perform its obligations hereunder or thereunder. No
Agent shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
any Credit Party or any of its Subsidiaries.
94
Section 12.4 Reliance by the Agents.
Each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or communications believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Credit Parties), independent accountants and other
experts selected by such Agent. Each Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.8 hereof. Each Agent shall be fully
justified in failing or refusing to take any action under this Agreement and the
other Loan Documents unless it shall first receive such advice or concurrence of
the Required Lenders (or, when expressly required hereby or by the relevant
other Loan Document, all the Lenders) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders (or, when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
Section 12.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless it has
received notice from a Lender or the Credit Parties referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, it shall promptly give notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders, except
to the extent that other provisions of this Agreement expressly require that any
such action be taken or not be taken only with the consent and authorization or
the request of the Lenders or Required Lenders, as applicable.
Section 12.6 Non-Reliance on the Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by any Agent hereafter taken, including any review of the affairs of
the Credit Parties or any of their respective Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries and
95
made its own decision to make its Loans and issue or participate in Letters of
Credit hereunder and enter into this Agreement. Each Lender also represents that
it will, independently and without reliance upon any Agent 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 analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Subsidiaries. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder or by the other Loan
Documents, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of any
Credit Party or any of its Subsidiaries which may come into the possession of
the Administrative Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
Section 12.7 Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Credit Parties and without limiting any obligation
of the Credit Parties to do so), ratably according to the respective amounts of
their Ratable Share in effect on the date on which indemnification is sought
under this Section (or, if indemnification is sought after the date upon which
the Aggregate Commitment shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Ratable Share immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Obligations or any Reimbursement
Obligation) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of the Aggregate Commitment, this Agreement or the
other Loan Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent they result from such Agent's bad
faith, gross negligence or willful misconduct. The agreements in this Section
12.7 shall survive the payment of the Loans, any Reimbursement Obligation and
all other amounts payable hereunder and the termination of this Agreement.
Section 12.8 The Administrative Agent in Its Individual Capacity.
The Administrative Agent and its respective Subsidiaries and Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Credit Parties as though the Administrative Agent were not an
Administrative Agent hereunder. With respect to any Loans made or renewed by it
and with respect to any Letter of Credit issued by it or participated in by it,
the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
96
Section 12.9 Resignation of Agents: Successor Agents.
Subject to the appointment and acceptance of a successor as provided below,
any Agent may resign at any time and, so long as no Default or Event of Default
has occurred and is continuing, shall resign upon the request of the Parent
Borrower, in each case, by giving notice thereof to the Lenders and the Credit
Parties. Upon any such resignation, the Required Lenders shall have the right,
subject to the approval of the Parent Borrower so long as no Default or Event of
Default has occurred and is continuing (which approval will not be unreasonably
withheld), to appoint from among the other Lenders a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and been
approved by the Parent Borrower (if the approval of the Parent Borrower is
required) or have accepted such appointment within thirty (30) days after such
Agent's giving of notice of resignation, then such Agent may appoint, subject to
the approval of the Parent Borrower so long as no Default or Event of Default
has occurred and is continuing (which approval will not be unreasonably
withheld), a successor Agent, which successor shall have minimum capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as an
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as an Agent, the provisions of this
Section 12.9 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as an Agent.
Section 12.10 Co-Arrangers; Syndication Agents; Documentation Agent.
The Arrangers, Documentation Agent and the Syndication Agents, in their
capacities as such, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement and the other Loan Documents.
Section 12.11 Issuing Lender and Swingline Lender. The provisions of
this Article XII (other than Section 12.8) shall apply to the Issuing Lenders
and the Swingline Lender mutatis mutandis to the same extent as such provisions
apply to the Agents.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices.
13.1.1. Method of Communication. Except as otherwise provided in
Article II, all notices and communications hereunder shall be in writing. Any
notice shall be effective if delivered by hand delivery or sent via telecopy,
recognized overnight courier service or certified mail, return receipt
requested, and shall be deemed to have been delivered (i) on the date of
delivery if delivered by hand, (ii) on the Business Day of (or next following)
transmission when transmitted or sent by telecopy, (iii) on the next Business
Day after delivery to a recognized overnight courier service and (iv) on the
fifth Business Day following the date sent by certified mail, return receipt
requested. A telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written
97
notice. Notices and other communications to the Lenders hereunder may also be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Parent Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
13.1.2. Addresses for Notices. Notices to any party shall be sent to
it at the following addresses, or any other address as to which all the other
parties (or the Administrative Agent and the Parent Borrower in the case of any
Lender) are notified in writing.
If to any Credit Party: The Brink's Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Treasurer
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza Building
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx XX 0680
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndication Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Wachovia Bank, National Association
One Wachovia Center, 15th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Lender: To the address (or telecopy number) set
forth in its Administrative Questionnaire
13.1.3. Funding Office.
The Administrative Agent hereby designates the office of (a) Wachovia
located at the address set forth in Section 13.1.2 as the Funding Office with
respect to any Dollar Revolving Loan, (b) Wachovia Bank, National Association,
London Branch, 0 Xxxxxxxxxxx, Xxxxxx XX0X 0XX, Attention of Ms. Xxxxxxxx Xxxxx,
(Telecopy No. 011 44 207 929 4645) or Mr. Xxx Xxxx, (Telecopy No. 011 44 207 929
4645), as the Funding Office with respect to any Foreign Currency Loan, in each
case, to which payments due are to be made and at which Loans will be disbursed
98
and (c) Wachovia Capital Finance Corporation (Canada), 000 Xxxxxxxx Xxxxxx Xxxx,
Xxxxx 0000 Xxxxxxx, Xxxxxxx, X0X 0X0, Attention of Xx. Xxxx Xxxxxx, (Telecopy
No. (000) 000-0000) as the Funding Office with respect to any Foreign Currency
Loan denominated in Canadian Dollars and made to a Subsidiary Borrower that is
incorporated or otherwise organized under the laws of Canada or any political
subdivision thereof.
Section 13.2 Expenses, Indemnity.
Each party to this Agreement agrees to pay all its own fees and expenses in
connection with the Loan Documents and any amendment, modification or waiver of
the terms thereof; provided, however, that the Parent Borrower agrees to (a) pay
all reasonable out-of-pocket expenses of each Agent and the Arrangers in
connection with (i) the preparation, execution and delivery of this Agreement
and each other Loan Document, whenever the same shall be executed and delivered,
including without limitation the reasonable out-of-pocket syndication
(including, without limitation, all CUSIP fees for registration with the CUSIP
Bureau) and due diligence expenses and reasonable fees and disbursements of one
counsel representing the Administrative Agent and (ii) where applicable, the
preparation, execution and delivery of any waiver, amendment or consent by the
Agents, the Arrangers, the Issuing Lenders or the Lenders relating to this
Agreement or any other Loan Document, including without limitation reasonable
fees and disbursements of counsel representing the Agents and the Lenders, and
(b) pay all reasonable out-of-pocket expenses of the Agents, the Arrangers, each
Issuing Lender and each Lender actually incurred in connection with the
enforcement of any rights and remedies of the Agents, the Arrangers, the Issuing
Lenders and the Lenders under the Credit Facilities, including, to the extent
reasonable under the circumstances, consulting with accountants, attorneys and
other Persons concerning the nature, scope or value of any right or remedy of
the Agents, the Arrangers, any Issuing Lender or any Lender hereunder or under
any other Loan Document or any factual matters in connection therewith, which
expenses shall include without limitation the reasonable fees and disbursements
of such Persons. The Parent Borrower hereby indemnifies, exonerates and holds
the Agents, the Arrangers, the Issuing Lenders and the Lenders, and each of
their respective Affiliates, officers, directors, employees and agents (each an
"Indemnitee") free and harmless from and against any and all losses, penalties,
fines, liabilities, settlements, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements, reasonable
consultants' fees and settlement costs) (collectively, the "Indemnified
Liabilities") incurred by any Indemnitee in connection with any claim,
investigation, litigation or other proceeding (whether or not the Agents, the
Arrangers, any Issuing Lender or any Lender is a party thereto) and the
prosecution and defense thereof, arising out of or in any way connected with the
Credit Facilities, the Loans, the Letters of Credit, this Agreement or any other
Loan Document or as a result of the breach of any of the Credit Parties'
obligations hereunder or arising from the use by others of Information or other
materials obtained through internet, SyndTrak or other similar transmission
systems in connection with the Credit Facilities, except for any such
Indemnified Liabilities arising for the account of a particular Indemnitee by
reason of the relevant Indemnitee's gross negligence or willful misconduct as
determined by a final and nonappealable decision of a court of competent
jurisdiction. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Parent Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The parties hereto
acknowledge and agree that, in the case of any claim, litigation, investigation
or other proceeding to which the indemnity in this Section 13.2 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by a third party, the Parent Borrower or any other Credit
Party.
99
Section 13.3 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Section 13.4 Consent to Jurisdiction; Waiver.
Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process to any Credit Party in any such
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
the Parent Borrower at its address set forth in Section 13.1 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto, it being agreed that, for purposes of this Agreement, the Parent
Borrower is hereby appointed as the agent for each Guarantor and each Subsidiary
Borrower to receive on its behalf and its property service of copies of the
summons and complaint and any other process which may be served in any such
action or court;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction;
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, indirect, consequential or punitive damages (as
opposed to direct or actual damages); and
(f) to the extent that any Foreign Subsidiary Borrower has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property, such Foreign Subsidiary Borrower
hereby irrevocably waives and agrees, to the extent permitted by Applicable Law,
not to plead or claim such immunity in respect of its Obligations under this
Agreement and any Note.
100
Section 13.5 WAIVER OF JURY TRIAL.
EACH CREDIT PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section 13.6 Reversal of Payments.
To the extent any Credit Party makes a payment or payments to the
Administrative Agent for the ratable benefit of the Lenders or the
Administrative Agent receives any payment or proceeds of the collateral which
payments or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or federal
law , common law or equitable cause, then, to the extent of such payment or
proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
Section 13.7 Accounting Matters.
Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time, provided that, if the Parent Borrower notifies the
Administrative Agent that the Credit Parties request an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Credit Parties that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance therewith.
Section 13.8 Successors and Assigns; Participations; Confidentiality.
13.8.1. Benefit of Agreement. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
any Issuing Lender that issues any Letter of Credit), except that (i) the Credit
Parties may not assign or otherwise transfer any of their rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Credit Party without such consent shall be null
and void), (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section and (iii) except as
permitted by Section 12.9, the Administrative Agent may not assign or transfer
any of its rights or obligations under this Agreement.
101
13.8.2. Assignment by Lenders. (a) Subject to the conditions set forth
in Sections l3.8.2(b) and l3.8.2(g), any Lender may assign to one or more
assignees (each, an "Assignee") all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:
(i) the Parent Borrower, provided that no consent of the Parent
Borrower shall be required for an assignment to (1) a Lender, (2) an
Affiliate of a Lender, (3) an Approved Fund (as defined below) or (4) if an
Event of Default under Sections 11.1.1, 11.1.2, 11.1.8, 11.1.9, or 11.1.10
has occurred and is continuing, any other Person (unless such Person is
engaged in one or more lines of business as the Parent Borrower or any of
its Subsidiaries or is an Affiliate of such Person, other than as a result
of the holding of securities of such Person solely as a passive investment,
in which case the Parent Borrower's consent shall be required under all
circumstances), provided, further, that it is reasonable for the Parent
Borrower to withhold its consent to the assignment to any prospective
Assignee requiring compensation under this Agreement pursuant to Sections
4.7.3, 4.7.4 or 4.10; and
(ii) the Administrative Agent and the Issuing Lenders, provided that
no consent of the Administrative Agent or the Issuing Lenders shall be
required for an assignment to an Assignee that is a Lender immediately
prior to giving effect to such assignment.
(b) Assignments shall be subject to the following additional
conditions:
(i) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender's Commitments or Loans under any Credit Facility,
the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000 and the remaining
Commitment or Loans of such Lender shall not be less than $10,000,000,
unless each of the Parent Borrower and the Administrative Agent otherwise
consent, provided that (A) no such consent of the Parent Borrower shall be
required if an Event of Default has occurred and is continuing and (B) such
amounts shall be aggregated in respect of each Lender and its Affiliates or
Approved Funds, if any;
(ii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 for each assignment;
(iii) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire;
(iv) such assignment shall not, without the consent of the Parent
Borrower, on behalf of itself and the other Credit Parties, require the
Parent Borrower or any other Credit Party to file a registration statement
with the Securities and Exchange Commission (or any securities exchange) or
apply to qualify the Loans (or any Notes) under the blue sky laws of any
state;
102
(v) the Assignee shall represent in the Assignment and Assumption as
of the date of such assignment that it has the full power and authority to
make Loans and other Extensions of Credit into the jurisdictions and in the
currencies made available in the Credit Facility under which it is
committing; and
(vi) in the event of an assignment of any Commitment or Loan under any
Credit Facility which was made available to Brink's International, C.V.,
Brink's Nederland B.V., or any other Subsidiary of the Parent Borrower
organized under the laws of The Netherlands, the Assignee must qualify as a
"professional market party" as defined in the Exemption Decree to the 1992
Credit Supervision Act (Vrijstellingsregeling wet toezicht kredietwezen
1992), State Gazette (Staatscourant) 2002, 120, as amended by State Gazette
(Staatscourant) 2005, 247, and as amended by the Dutch Central Bank's
Policy Guidelines (issued in relation to the Dutch Exemption Regulation)
dated 29 December 2004 (Beleidsregel 2005 kernbegrippen markttoetreding en
handhaving Wtk 1992), as amended from time to time.
For the purposes of this Section 13.8.2, the term "Approved Fund" means any
Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender; provided that no Approved Fund
shall be entitled to receive any amount pursuant to Sections 4.7, 4.8, 4.9, 4.10
or 13.2 that would be greater than the amount the assigning Lender would have
been entitled to receive in respect of the portion of the Commitment and Loans
assigned to such Approved Fund by such Lender.
(c) Subject to acceptance and recording thereof pursuant to Section
13.8.2(d), from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits and subject to
the requirements of Sections 4.7, 4.8, 4.9, 4.10 or 13.2). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 13.8.2 shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with Section 13.8.3.
(d) The Administrative Agent, acting for this purpose as an agent of
the Parent Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, in the absence of manifest error, and the Parent Borrower,
103
the Administrative Agent, the Issuing Lenders and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Parent
Borrower, the Issuing Lenders and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
Administrative Questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)(ii)
of this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Parent Borrower or the Administrative Agent and
without regard to the limitations set forth in Section 13.8.2, and any such
assignment shall be effective upon being recorded in the Register in accordance
with Section 13.8.2(d). Each of the Parent Borrower, each Lender and the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period of
forbearance. The foregoing shall not limit the rights of any Credit Party, any
Lender, any Issuing Lender and the Administrative Agent to file any claim in or
otherwise take any action with respect to any existing insolvency proceeding
that was not instituted by such party.
(g) Notwithstanding anything to the contrary contained in this Section
13.8.2, no Lender may assign all or any portion of Loans made to or Letters of
Credit issued for the account of Brink's International Holdings AG, a company
formed under the laws of Switzerland, or any other Subsidiary of the Parent
Borrower formed under the laws of Switzerland (each, a "Swiss Subsidiary") to
any Assignee other than a Qualifying Bank (as defined herein) without the prior
written consent of the Parent Borrower if, as a result of any such assignment
(i) the total number of Lenders (other than Qualifying Banks) with respect to
Loans and Letters of Credit made to or for the account of such Swiss Subsidiary
under this Agreement would at any time exceed 10 under the Swiss Guidelines (as
defined herein), or (ii) the total number of creditors (other than Qualifying
Banks) in relation to all outstanding loans to such Swiss Subsidiary (including
Loans and Letters of Credit made to or issued for the account of such Swiss
Subsidiary under this Agreement) would at any time exceed 20 under the Swiss
Guidelines, in each case as certified to the relevant Lenders by the Parent
Company. For purposes of this Section 13.8.2(g), the term "Swiss Guidelines"
shall mean the guidelines in relation to bonds dated April 1999 as issued by the
Swiss Federal Tax Administration (Merkblatt "Obligationen" vom April 1999 der
Eidgenossischen Steuerverwaltung) and "Qualifying Bank" shall mean any Person
that is a bank according to the banking legislation in effect at the corporate
domicile of such bank.
104
13.8.3. Participation.
(a) Any Lender may, without the consent of the Parent Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (i) such participation shall be in an amount
not less than $5,000,000, (ii) such Lender's obligations (including, without
limitation, its Commitment) under this Agreement shall remain unchanged, (iii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iv) the Parent Borrower, the Administrative
Agent, the Issuing Lenders and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (A) requires the consent of each Lender
directly affected thereby pursuant to clauses (a), (b), (c) or (d) of the first
proviso to the first sentence of Section 13.10 and (B) directly affects such
Participant. Subject to paragraph (b) of this Section, the Parent Borrower
agrees that each Participant shall be entitled to the benefits and subject to
the requirements of Sections 4.7, 4.8, 4.9, 4.10 or 13.2 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.8.2.
(b) No Participant shall be entitled to receive any greater payment
under Sections 4.7, 4.8, 4.9 or 4.10 than the applicable participating Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the Parent Borrower specifically consents to such
right. Any Participant that is a Foreign Lender shall not be entitled to the
benefits of Section 4.10 unless such Participant complies with Section 4.10.6.
13.8.4. Certain Pledges or Assignments.
(a) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall (i) release a Lender from any of its obligations
hereunder, (ii) substitute any such pledgee or assignee for such Lender as a
party hereto or (iii) grant any such pledgee or assignee any rights as a Lender
or Participant.
(b) The Parent Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (a) above.
105
Section 13.9 Disclosure of Information; Confidentiality.
Each of the Administrative Agent, the Issuing Lenders and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates, directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (after providing notice
to the Parent Borrower, to the extent practicable, to permit an opportunity to
seek a protective order or injunctive relief), (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement, (g) with the prior written consent
of the Parent Borrower, (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section by the disclosing
party or (ii) becomes available to the Administrative Agent, the Issuing Lender
or any Lender on a nonconfidential basis from a source other than the Credit
Parties unless the Administrative Agent, the Issuing Lender or such Lender, as
applicable, has actual knowledge that the disclosure of such Information by such
source constituted a breach of an obligation of such source to maintain
confidentiality of such Information, (i) to Gold Sheets and other similar bank
trade publications, such information to consist of deal terms and other
information (customarily found in such publications) upon the Parent Borrower's
prior review and approval or (j) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender. For the purposes
of this Section, "Information" means all information received from the Credit
Parties or any of their Subsidiaries relating to the Credit Parties or their
business, other than any such information that is available to the
Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis prior to disclosure by the Credit Parties. 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.
Section 13.10 Amendments, Waivers and Consents.
(a) Except as set forth below, any term, covenant, agreement or condition
of this Agreement or any of the other Loan Documents may be amended or waived by
the Lenders and any consent may be given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by
the Administrative Agent with the consent of the Required Lenders) and delivered
to the Administrative Agent and, in the case of an amendment, signed by the
Credit Parties; provided, that no amendment, waiver or consent shall, without
the consent of each Lender affected thereby, (a) except as expressly
contemplated in Section 2.10, increase the amount or extend the time of the
obligation of the Lenders to make Loans or issue or participate in Letters of
Credit, (b) extend the originally scheduled time or times of payment of the
106
principal of any Loan or Reimbursement Obligation or the time or times of
payment of interest or fees on any Loan or Reimbursement Obligation, (c) reduce
the rate of interest or fees payable on any Loan or Reimbursement Obligation,
(d) reduce the principal amount of any Loan or Reimbursement Obligation, (e)
permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation or (f) permit any assignment (other than as
specifically permitted or contemplated in this Agreement) of any of the Credit
Parties' rights and obligations hereunder; provided further, no amendment,
waiver or consent shall (1) without the consent of each Lender, (A) release any
Guarantor from its guaranty hereunder other than upon the disposition by the
Parent Borrower of its interest in such Guarantor in accordance with the terms
of this Agreement or (B) amend the provisions of this Section or the definition
of "Required Lenders", (2) without the consent of each Revolving A Lender, amend
the definition of "Required Revolving A Lenders" or "Revolving A Optional
Currency", (3) without the consent of each Revolving B Lender, amend the
definition of "Required Revolving B Lenders" or "Revolving B Optional Currency"
and (4) without the consent of each Lender and the Administrative Agent, (A)
amend the definition of "Optional Currency", or (B) amend the provisions of
Section 2.11.1(a) or Section 2.11.3. In addition, no amendment, waiver or
consent to the provisions of (i) Article XII or Section 13.1.3 shall be made
without the written consent of the Administrative Agent, (ii) Article III shall
be made without the written consent of each Issuing Lender and (iii) Section 2.6
shall be made without the written consent of the Swingline Lender.
(b) Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (a) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Federal Bankruptcy Code (as now or hereafter in effect)
supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
Section 13.11 Performance of Duties.
The Credit Parties' obligations under this Agreement and each of the Loan
Documents shall be performed by the Credit Parties at their sole cost and
expense.
Section 13.12 All Powers Coupled with Interest.
All powers of attorney and other authorizations granted to the Lenders, the
Administrative Agent and any Persons designated by the Administrative Agent or
any Lender pursuant to any provisions of this Agreement or any of the other Loan
Documents shall be deemed coupled with an interest and shall be irrevocable so
long as any of the Obligations remain unpaid or unsatisfied or the Credit
Facilities have not been terminated.
Section 13.13 Acknowledgements.
Each of the Credit Parties hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
107
(b) neither the Administrative Agent, any Issuing Lender, the
Swingline Lender nor any Lender has any fiduciary relationship with or duty to
any Credit Party arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative Agent,
Issuing Lenders, Swingline Lender and Lenders, on one hand, and the Credit
Parties, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Credit Parties and the Lenders.
Section 13.14 Survival of Indemnities.
Notwithstanding any termination of this Agreement, the indemnities to which
the Administrative Agent, the Issuing Lenders and the Lenders are entitled under
the provisions of this Article XIII and any other provision of this Agreement
and the Loan Documents shall continue in full force and effect after the
termination of the Lenders' Commitments hereunder and shall protect the
Administrative Agent, the Issuing Lenders and the Lenders against events arising
after such termination as well as before, including after the Parent Borrower's
acceptance of the Lenders' commitments for the Credit Facilities,
notwithstanding any failure of such facility to close.
Section 13.15 Titles and Captions.
Titles and captions of Articles, Sections and subsections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
Section 13.16 Severability of Provisions.
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining provisions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 13.17 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns, and all of which taken together shall
constitute one and the same agreement. Delivery of any executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
108
Section 13.18 Binding Effect; Amendment and Restatement; Term of
Agreement.
13.18.1. This Agreement shall become effective at such time, on or
after the Closing Date, that the conditions precedent set forth in Section 5.1
have been satisfied or waived and when it shall have been executed by each of
the Credit Parties and the Administrative Agent, and the Administrative Agent
shall have received copies of the signature pages hereto (telefaxed or
otherwise) which, when taken together, bear the signatures of each Lender
(including the Issuing Lenders and the Swingline Lender), and thereafter this
Agreement shall be binding upon and inure to the benefit of each Credit Party,
each Lender (including the Issuing Lenders and the Swingline Lender) and the
Administrative Agent, together with their permitted successors and assigns.
13.18.2. This Agreement shall remain in effect from the Closing Date
through and including the date upon which all Obligations (other than
obligations owing by any Credit Party to any Lender or Affiliate of a Lender or
the Administrative Agent under any Hedging Agreement) shall have been
indefeasibly and irrevocably paid and satisfied in full. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination.
Section 13.19 Inconsistencies with Other Documents; Independent Effect
of Covenants.
13.19.1. In the event there is a conflict or inconsistency between
this Agreement and any other Loan Document, the terms of this Agreement shall
control, provided, that in the event there is a conflict or inconsistency
between this Agreement and the letter agreement between the Administrative
Agent, Wachovia Capital Markets, LLC and the Parent Borrower dated as of June
23, 2006 governing certain fees (the "Fee Letter"), which conflict or
inconsistency relates solely to a matter affecting (i) the Administrative Agent
and/or its Affiliates on one hand and (ii) the Parent Borrower on the other, the
Fee Letter shall control.
13.19.2. The Parent Borrower expressly acknowledges and agrees that
each covenant contained in Article VIII and Article IX hereof shall be given
independent effect.
Section 13.20 Integration.
This Agreement and the other Loan Documents represent the entire agreement
of the Credit Parties, the Administrative Agent, the Issuing Lenders, the
Swingline Lender and the Lenders with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Loan Documents.
Section 13.21 Judgment Currency.
The obligations of any Credit Party in respect of any sum due to any Agent
or any Lender hereunder or under any Loan Document shall, notwithstanding any
judgment in a currency (the "judgment currency") other than the currency in
which such sum originally due to such party is denominated (the "original
currency"), be discharged only to the extent that on the Business Day following
receipt by such party of any sum adjudged to be so due in the judgment currency
such party may in accordance with normal banking procedures purchase the
original currency with the judgment currency. If the amount of the original
currency so purchased is less than the sum originally due to such party in the
original currency, such Credit Party agrees, as a separate obligation and
109
notwithstanding any such judgment, to indemnify such party against such loss,
and if the amount of the original currency so purchased exceeds the sum
originally due to such party to this Agreement, such party agrees to remit to
the Credit Party, as the case may be, such excess. This covenant shall survive
the termination of this Agreement and payment of the Loans and all other amounts
payable hereunder.
Section 13.22 USA Patriot Act Notice. Each Lender that is subject to
the PATRIOT Act and each Agent (for itself and not on behalf of any Lender)
hereby notifies the Credit Parties that pursuant to the requirements of the
PATRIOT Act, it is required to obtain, verify and record information that
identifies the Credit Parties, which information includes the name and address
of the Credit Parties and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Credit Parties in
accordance with the PATRIOT Act.
110
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
PARENT BORROWER:
THE BRINK'S COMPANY, a Virginia corporation
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President-Corporate Finance and
Treasurer
SUBSIDIARY BORROWERS:
BRINK'S INTERNATIONAL, X.X.
Xxxxx'x Security International, Inc.
Its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
Treasurer
BRINK'S CANADA LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
BRINK'S INTERNATIONAL HOLDINGS AG
By: /s/ Christian C. A. Xxxxx
-------------------------
Name: Christian C. A. Xxxxx
Title: Chairman and Director
BRINK'S FRANCE HOLDINGS SAS
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
BRINK'S FRANCE S.A.S.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
BRINK'S SWITZERLAND LTD.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Director and General Manager
BRINK'S NEDERLAND B.V.
By: /s/ Petrus X. X. Xxxxxxx
------------------------
Name: Petrus X. X. Xxxxxxx
Title: Managing Director
BRINK'S DEUTSCHLAND GMBH
By: /s/ Hans Xxxxxx Xxxxxx
----------------------
Name: Hans Xxxxxx Xxxxxx
Title: Managing Director
BRINK'S LIMITED
By: /s/ Christian C. A. Xxxxx
-------------------------
Name: Christian C. A. Xxxxx
Title: Director
BRINK'S BELGIUM S.A.
By its authorized representative
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
SIGNED, SEALED AND DELIVERED
as a DEED by
/s/ Christian C. A. Xxxxx
-------------------------
Christian C. A. Xxxxx, Director
as a duly authorized attorney
for and on behalf of
BRINK'S IRELAND LIMITED
in the presence of
Witness Signature: /s/ Xxxxxxxx X. Xxxx
--------------------
Xxxxxxxx X. Xxxx
Assistant Treasurer
The Brink's Company
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
BRINK'S HONG KONG LIMITED
By: /s/ Christian C. A. Xxxxx
-------------------------
Name: Christian C. A. Xxxxx
Title: Director
BRINK'S AUSTRALIA PTY LTD
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Director/CEO
BRINK'S BETEILIGUNGSGESELLSCHAFT MBH
By: /s/ Christian C. A. Xxxxx
-------------------------
Name: Christian C. A. Xxxxx
Title: Managing Director
GUARANTORS:
PITTSTON SERVICES GROUP INC., a Virginia
corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Notice Address:
c/o The Brink's Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Treasurer
Facsimile: (000) 000-0000
BRINK'S HOLDING COMPANY, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Notice Address:
c/o The Brink's Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Treasurer
Facsimile: (000) 000-0000
BRINK'S, INCORPORATED, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
Notice Address:
c/o The Brink's Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Treasurer
Facsimile: (000) 000-0000
BRINK'S HOME SECURITY, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
Notice Address:
c/o The Brink's Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Treasurer
Facsimile: (000) 000-0000
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as
Administrative Agent, an
Issuing Lender, Swingline
Lender and a Revolving A
Lender
By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Wachovia Bank, National Association
JPMORGAN CHASE BANK, N.A., as Syndication
Agent and a Revolving A Lender
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI UFJ TRUST
COMPANY, as Documentation Agent and a
Revolving A Lender
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Revolving A
Lender
By: /s/ W. Xxxxxx Xxxxxxx
-------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX BANK INTERNATIONAL
LIMITED, as a Revolving A Lender
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
SOCIETE GENERALE, as a Revolving A Lender
By: /s/ Xxxx-Xxxxx Xxxxxxxxx
------------------------
Name: Xxxx-Xxxxx Xxxxxxxxx
Title: Director
BARCLAYS BANK PLC, as a Revolving B Lender
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Director
KBC BANK N.V., as a Revolving B Lender
By: /s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
------------------ --------------------
Name: Xxxx Xxxxxx Xxxxxx Xxxxxxxx
Title: Vice President First Vice President
