CREDIT AGREEMENT Dated as of August 29, 2006 among THERMO ELECTRON CORPORATION, as the Borrower, BANK OF AMERICA, N.A., as Administrative Agent and Swing Line Lender BANK OF AMERICA, N.A. and BARCLAYS BANK PLC, as L/C Issuers, and The Other Lenders...
Exhibit
99.1
Dated
as
of August 29, 2006
among
THERMO
ELECTRON CORPORATION,
as
the Borrower,
BANK
OF AMERICA, N.A.,
as
Administrative Agent and Swing Line Lender
BANK
OF AMERICA, N.A.
and
BARCLAYS BANK PLC,
as
L/C Issuers,
and
The
Other Lenders Party Hereto
BANC
OF AMERICA SECURITIES LLC
and
BARCLAYS CAPITAL,
as
Joint
Lead Arrangers and Joint Book Managers
BARCLAYS
BANK PLC,
as
Syndication Agent
ABN
AMRO BANK, N.V.,
DEUTSCHE
BANK SECURITIES, INC.,
and
XX XXXXXX XXXXX BANK, N.A.,
as
Documentation Agents
TABLE
OF CONTENTS
Section
|
Page
|
||
Article
I.
|
DEFINITIONS
AND ACCOUNTING TERMS
|
5
|
|
1.01
|
|
Defined
Terms
|
5
|
1.02
|
|
Other
Interpretive Provisions
|
28
|
1.03
|
|
Accounting
Terms
|
29
|
1.04
|
|
Rounding
|
29
|
1.05
|
|
Exchange
Rates; Currency Equivalents
|
30
|
1.06
|
|
Additional
Alternative Currencies
|
30
|
1.07
|
|
Change
of Currency
|
31
|
1.08
|
|
Times
of Day
|
31
|
1.09
|
|
Letter
of Credit Amounts
|
31
|
Article
II.
|
THE
COMMITMENTS AND CREDIT EXTENSIONS
|
32
|
|
2.01
|
|
Committed
Loans
|
32
|
2.02
|
|
Borrowings,
Conversions and Continuations of Committed Loans
|
32
|
2.03
|
|
Letters
of Credit
|
34
|
2.04
|
|
Swing
Line Loans
|
44
|
2.05
|
|
Prepayments
|
47
|
2.06
|
Termination of Reduction of Commitments |
48
|
|
2.07
|
Repayment of Loans |
49
|
|
2.08
|
Interest |
49
|
|
2.09
|
Fees |
50
|
|
2.10
|
Computation of Interest and Fees |
50
|
|
2.11
|
Evidence of Debt |
51
|
|
2.12
|
Payments Generally; Admistrative Agent's Clawback |
51
|
|
2.13
|
Sharing of Payments by Lenders |
53
|
|
2.14
|
Designated Borrowers |
54
|
|
2.15
|
|
Extension
of Maturity Date
|
56
|
2.16
|
|
Increase
in Commitments
|
57
|
2.17
|
|
Additional
Subsidiary Guarantors
|
58
|
Article
III.
|
TAXES,
YIELD PROTECTION AND ILLEGALITY
|
59
|
|
3.01
|
|
Taxes
|
59
|
3.02
|
|
Illegality
|
61
|
3.03
|
|
Inability to Determine Rates |
61
|
3.04
|
|
Increased
Costs; Reserves on Eurocurrency Rate Loans
|
62
|
3.05
|
|
Compensation
for Losses
|
64
|
3.06
|
|
Mitigation
Obligations; Replacement of Lenders
|
65
|
3.07
|
|
Survival
|
65
|
Article
IV.
|
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
|
65
|
|
4.01
|
|
Conditions
of Closing
|
65
|
4.02
|
|
Conditions
to Effective Date and Initial Credit Extensions
|
66
|
4.03
|
|
Conditions
to all Credit Extensions
|
68
|
1
Article
V.
|
REPRESENTATIONS
AND WARRANTIES
|
69
|
|
5.01
|
|
Existence,
Qualification and Power
|
69
|
5.02
|
|
Authorization;
No Contravention
|
69
|
5.03
|
|
Governmental
Authorization; Other Consents
|
69
|
5.04
|
|
Binding
Effect
|
69
|
5.05
|
|
Financial
Statements; No Material Adverse Effect; No Internal Control
Event
|
70
|
5.06
|
|
Litigation
|
70
|
5.07
|
|
Ownership
of Property; Liens.
|
70
|
5.08
|
|
Environmental
Compliance
|
71
|
5.09
|
|
Insurance
|
71
|
5.10
|
|
Taxes
|
71
|
5.11
|
ERISA Compliance |
71
|
|
5.12
|
Margin Regulations; Investment Company Act |
72
|
|
5.13
|
Disclosure |
72
|
|
5.14
|
Compliance with Laws |
72
|
|
5.15
|
|
Taxpayer
Identification Number; Other Identifying Information
|
72
|
5.16
|
|
Representations
as to Foreign Obligors
|
73
|
Article
VI.
|
AFFIRMATIVE
COVENANTS
|
74
|
|
6.01
|
|
Financial
Statements
|
74
|
6.02
|
|
Certificates;
Other Information
|
75
|
6.03
|
|
Notices
|
75
|
6.04
|
|
Payment
of Obligations
|
76
|
6.05
|
|
Preservation
of Existence, Etc.
|
76
|
6.06
|
|
Maintenance
of Properties; Maintenance of Insurance
|
76
|
6.07
|
|
Compliance
with Laws
|
76
|
6.08
|
|
Inspection
Rights; Books and Records
|
76
|
6.09
|
|
Use
of Proceeds.
|
77
|
6.10
|
|
Approvals
and Authorizations
|
77
|
Article
VII.
|
NEGATIVE
COVENANTS
|
77
|
|
7.01
|
|
Liens
|
77
|
7.02
|
|
Indebtedness
|
79
|
7.03
|
|
Fundamental
Changes
|
80
|
7.04
|
|
Dispositions
|
80
|
7.05
|
|
Transactions
with Affiliates
|
81
|
7.06
|
|
Consolidated
Leverage Ratio
|
81
|
7.07
|
Amendment of Modification of Merger Agreement |
81
|
|
Article
VIII.
|
EVENTS
OF DEFAULT AND REMEDIES
|
81
|
|
8.01
|
|
Events
of Default
|
81
|
8.02
|
|
Remedies
Upon Event of Default
|
83
|
8.03
|
|
Application
of Funds
|
83
|
2
Article
IX.
|
ADMINISTRATIVE
AGENT
|
84
|
|
9.01
|
|
Appointment
and Authority
|
84
|
9.02
|
|
Rights
as a Lender
|
85
|
9.03
|
|
Exculpatory
Provisions
|
85
|
9.04
|
|
Reliance
by Administrative Agent
|
86
|
9.05
|
|
Delegation
of Duties
|
86
|
9.06
|
|
Resignation
of Administrative Agent; Resignation of L/C Issuers
|
86
|
9.07
|
|
Non-Reliance
on Administrative Agent and Other Lenders
|
88
|
9.08
|
|
No
Other Duties, Etc.
|
88
|
9.09
|
|
Administrative
Agent May File Proofs of Claim
|
88
|
9.10
|
|
Guaranty
Matters
|
89
|
Article
X.
|
MISCELLANEOUS
|
89
|
|
10.01
|
|
Amendments,
Etc.
|
89
|
10.02
|
|
Notices;
Effectiveness; Electronic Communication
|
90
|
10.03
|
|
No
Waiver; Cumulative Remedies
|
92
|
10.04
|
|
Expenses;
Indemnity; Damage Waiver
|
92
|
10.05
|
|
Payments
Set Aside
|
95
|
10.06
|
|
Successors
and Assigns
|
95
|
10.07
|
|
Treatment
of Certain Information; Confidentiality
|
100
|
10.08
|
|
Right
of Setoff
|
101
|
10.09
|
|
Interest
Rate Limitation
|
101
|
10.10
|
|
Counterparts;
Integration; Effectiveness
|
102
|
10.11
|
|
Survival
of Representations and Warranties
|
102
|
10.12
|
|
Severability
|
102
|
10.13
|
|
Replacement
of Lenders
|
102
|
10.14
|
|
Governing
Law; Jurisdiction; Etc.
|
103
|
10.15
|
|
Waiver
of Jury Trial
|
104
|
10.16
|
|
No
Advisory or Fiduciary Responsibility
|
104
|
10.17
|
|
USA
PATRIOT Act Notice
|
105
|
10.18
|
|
Judgment
Currency
|
105
|
SIGNATURES
|
S-1
|
3
1.01
|
|
2.01
|
Commitments
and Applicable Percentages
|
2.03
|
Existing
Letters of Credit
|
2.14
|
Eligible
Foreign Subsidiaries
|
5.06
|
Litigation
|
5.08
|
Environmental
Matters
|
7.01(b)
|
Existing
Liens at the Closing Date
|
7.01(c)
|
Existing
Liens at the Effective Date
|
7.02(b)
|
Existing
Indebtedness at the Closing Date
|
7.02(c)
|
Existing
Indebtedness at the Effective Date
|
7.04
|
Dispositions
|
10.02
|
Administrative
Agent’s Office; Certain Addresses for
Notices
|
EXHIBITS
Form of | |
A
|
Committed
Loan Notice
|
B
|
Swing
Line Loan Notice
|
C
|
Note
|
D
|
Compliance
Certificate
|
E
|
Assignment
and Assumption
|
F
|
Company
Guaranty
|
G
|
Subsidiary
Guaranty
|
H
|
Designated
Borrower Joinder Agreement
|
I
|
Designated
Borrower Notice
|
This
CREDIT
AGREEMENT (“Agreement”)
is entered into as of August 29, 2006, among THERMO ELECTRON CORPORATION, a
Delaware corporation (the “Company”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”),
BANK OF AMERICA, N.A.,
as
Administrative Agent and Swing Line Lender, and BANK OF AMERICA, N.A. and
BARCLAYS BANK PLC, as L/C Issuers.
The
Company
has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein,
the
proceeds of which will be used (a) to refinance the Existing Credit Agreements
and (b) to provide financing for working capital, capital expenditures and
other
general corporate purposes of the Company and its Subsidiaries;
4
After
the Effective Date, certain Foreign Subsidiaries of the Company may become
Designated Borrowers and will each be severally liable for their Obligations
hereunder, and the Company will provide a Company Guaranty with respect to
each
Designated Borrower’s Obligations hereunder;
As
of the
Effective Date, Xxxxxx Scientific International Inc., a Delaware corporation
(“Xxxxxx”),
will become a wholly-owned Subsidiary of the Company and a Guarantor of the
Obligations of the Company and the Designated Borrowers hereunder;
and
The
Borrowers
may from time to time designate additional Domestic Subsidiaries to provide
Subsidiary Guaranties of the Obligations of the Company and the Designated
Borrowers hereunder;
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE
I.
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:
“Acceptance
Credit”
means a commercial Letter of Credit in which the applicable L/C Issuer engages
with the beneficiary of such Letter of Credit to accept a time
draft.
“Acceptance
Documents”
means such general acceptance agreements, applications, certificates and other
documents as the applicable L/C Issuer may require in connection with the
creation of Bankers’ Acceptances.
“Act”
has the meaning specified in Section
10.17.
“Additional
Commitment Lender”
has the meaning specified in Section
2.15(d).
“Administrative
Agent”
means Bank of America in its capacity as administrative agent under any of
the
Loan Documents, or any successor administrative agent.
“Administrative
Agent’s Office”
means, with respect to any currency, the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule
10.02
with respect to such currency, or such other address or account with respect
to
such currency as the Administrative Agent may from time to time notify to the
Company and the Lenders.
“Administrative
Questionnaire”
means an Administrative Questionnaire in a form supplied by the Administrative
Agent.
5
“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
“Agent
Parties”
has the meaning specified in Section
10.02(c).
“Aggregate
Commitments”
means the Commitments of all the Lenders.
“Agreement”
has the meaning specified in the introductory paragraph hereto.
“Agreement
Currency”
has the meaning specified in Section
10.18.
“Alternative
Currency”
means each of Australian Dollars, Canadian Dollars, Euro, Sterling, Swiss Franc,
and Yen and each other currency (other than Dollars) that is approved in
accordance with Section
1.06.
“Alternative
Currency Equivalent”
means, at any time, with respect to any amount denominated in Dollars, the
equivalent amount thereof in the applicable Alternative Currency as determined
by the Administrative Agent or the applicable L/C Issuer, as the case may be,
at
such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Alternative Currency with
Dollars.
“Applicable
Foreign Obligor Documents”
has the meaning specified in Section
5.16.
“Applicable
Percentage”
means with respect to any Lender at any time, the percentage (carried out to
the
ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and
the
obligation of each L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section
8.02
or if the Aggregate Commitments have expired, then the Applicable Percentage
of
each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments.
The
initial Applicable Percentage of each Lender is set forth opposite the name
of
such Lender on Schedule
2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.
“Applicable
Rate”
means, from time to time, the following rate, expressed in basis points per
annum, corresponding to the applicable Debt Rating as set forth
below:
6
Pricing
Level
|
Debt
Ratings
S&P/Xxxxx’x/
Fitch
|
Facility
Fee
|
Applicable
Margin
for
Eurocurrency
Rate
Loans
Letter
of Credit
Fee
|
1
|
Better
than or equal to A-/A3/A-
|
6.0
|
19.0
|
2
|
BBB+/Baa1/BBB+
|
8.0
|
27.0
|
3
|
BBB/Baa2/BBB
|
9.0
|
31.0
|
4
|
BBB-/Baa3
/BBB-
|
11.0
|
39.0
|
5
|
BB+/Ba1/BB+
or worse, or unrated
|
15.0
|
60.0
|
“Debt
Rating”
means, as of any date of determination, the rating as determined
by any two Rating Agencies (after eliminating the lowest rating as determined
by
the third Rating Agency) (collectively, the “Debt
Ratings”)
of the Company’s non-credit-enhanced, senior unsecured long-term debt;
provided
that (a) if the respective Debt Ratings issued by the two foregoing Rating
Agencies differ by one level, then the Pricing Level for the lower of such
Debt
Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest
and the Debt Rating for Pricing Level 5 being the lowest); (b) if the respective
Debt Ratings issued by the two foregoing Rating Agencies differ by more than
one
level, then the Pricing Level that is one Pricing Level lower than the higher
of
such Debt Ratings shall apply; (c) if the Company has only one Debt Rating,
then
the Pricing Level that is one level lower than that of such Debt Rating shall
apply; and (d) if the Company does not have any Debt Rating, Pricing Level
5
shall apply.
Initially,
the Applicable Rate shall be determined based upon the Debt Rating effective
as
of the Effective Date. Thereafter, each change in the Applicable Rate resulting
from a publicly announced change in the Debt Rating shall be effective during
the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change;
provided,
that if no such public announcement is made, such change in the Applicable
Rate
shall be effective on the date the change in the Debt Rating is
effective.
“Applicable
Time”
means, with respect to any borrowings and payments in any Alternative Currency,
the local time in the place of settlement for such Alternative Currency as
may
be determined by the Administrative Agent or the applicable L/C Issuer, as
the
case may be, to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of payment.
“Applicant
Borrower”
has the meaning specified in Section
2.14.
7
“Approved
Fund”
means any Fund 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.
“Arrangers”
means Banc of America Securities LLC and Barclays Capital, in their capacity
as
joint lead arrangers and joint book managers.
“Assignee
Group”
means two or more Eligible Assignees that are Affiliates of one another or
two
or more Approved Funds managed by the same investment advisor.
“Assignment
and Assumption”
means an assignment and assumption entered into by a Lender and an assignee
(with the consent of any party whose consent is required by Section
10.06(b)),
and accepted by the Administrative Agent, in substantially the form of
Exhibit
E
or any other form approved by the Administrative Agent.
“Attorney
Costs”
means and includes all reasonable out-of-pocket and documented fees, expenses,
charges and disbursements of any one law firm or external counsel (and one
local
counsel in each affected jurisdiction to the extent reasonably
necessary).
“Audited
Financial Statements”
means the audited consolidated balance sheet of the Company and its Subsidiaries
(as of December 31, 2005) for the fiscal year ended December 31, 2005, and
the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Company and its Subsidiaries,
including the notes thereto.
“Australian
Dollar”
means lawful money of the Commonwealth of Australia.
“Availability
Period”
means the period from and including the Effective Date to the earliest of (a)
the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section
2.06,
and (c) the date of termination of the commitment of each Lender to make Loans
and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant
to Section
8.02.
“Bank
of America”
means Bank of America, N.A. and its successors.
“Bankers’
Acceptance”
or “BA”
means a time draft, drawn by the beneficiary under an Acceptance
Credit and
accepted by the Applicable L/C Issuer upon presentation of documents by the
beneficiary of an Acceptance Credit pursuant to Section
2.03
hereof, in the standard form for bankers’ acceptances of such L/C
Issuer.
“Barclays”
means Barclays Bank PLC and its successors.
“Base
Rate” means
for any day a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as
publicly announced from time to time by Bank of America as its “prime rate.” The
“prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening
of
business on the day specified in the public announcement of such
change.
8
“Base
Rate Committed Loan”
means a Committed Loan that is a Base Rate Loan.
“Base
Rate Loan”
means a Loan that bears interest based on the Base Rate. All Base Rate Loans
shall be denominated in Dollars.
“Beneficiary”
means, in relation to a Letter of Credit, from time to time, the initial
beneficiary, a transferee beneficiary, a successor beneficiary, a nominated
bank, a negotiating bank or a confirming bank with respect to such Letter of
Credit, as applicable.
“Borrowers”
means (a) as of the Closing Date, Company and (b) after the Closing Date,
Company and any Designated Borrowers pursuant to Section
2.14.
“Borrower
Materials”
has the meaning specified in Section
10.02.
“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.
“Borrowing
Officer”
means any Responsible Officer of the Company, the treasurer or assistant
treasurer of the Company or any other individual designated in writing by a
Responsible Officer of the Company (including officers of other Loan
Parties).
“Business
Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in,
the
state where the Administrative Agent’s Office with respect to Obligations
denominated in Dollars is located and:
(a)
if such
day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments
in
Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings
in
Dollars to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in deposits in
Dollars are conducted by and between banks in the London interbank eurodollar
market;
(b)
if such
day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments
in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;
(c)
if such
day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on
which dealings in deposits in the relevant currency are conducted by and between
banks in the London or other applicable offshore interbank market for such
currency; and
(d)
if such
day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any other dealings
in
any currency other than Dollars or Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan (other than any interest
rate settings), means any such day on which banks are open for foreign exchange
business in the principal financial center of the country of such
currency.
9
“Canadian
Dollar”
means lawful money of Canada.
“Capital
Lease Obligations”
means, with respect to any Person, the obligations of such Person to pay rent
or
other amounts under any lease of (or other arrangement conveying the right
to
use) real or personal property, or a combination thereof, which obligations
are
required to be classified and accounted for as capital leases on a balance
sheet
of such Person under GAAP, and, for the purposes of this Agreement, the amount
of such obligations at any time shall be the capitalized amount thereof at
such
time determined in accordance with GAAP.
“Cash
Collateralize”
has the meaning specified in Section
2.03(g).
“Change
in Law”
means the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b)
any change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c)
the
making or issuance of any request, guideline or directive (whether or not having
the force of law) by any Governmental Authority.
“Change
of Control”
means an event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 40% or more of the equity securities of the Company entitled
to
vote for members of the board of directors or equivalent governing body of
the
Company on a fully-diluted basis; or
(b) a
majority of the members of the board of directors or other equivalent governing
body of the Company shall cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the Effective Date, after
giving effect to the Merger, or (ii) whose election by the board of directors
of
the Company, or whose nomination for election by the shareholders of the
Company, was approved by a vote of at least a majority of the directors of
the
Company who were either directors on the Effective Date or whose election or
nomination was previously so approved.
“Closing
Date”
means the first date all the conditions precedent in Section
4.01
are satisfied or waived in accordance with Section
10.01.\
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the
Borrowers pursuant to Section
2.01,
(b) purchase participations in L/C Obligations, and (c) purchase participations
in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the Dollar amount set forth opposite such Lender’s
name on Schedule
2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in
accordance with this Agreement.
10
“Committed
Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type,
in the same currency and, in the case of Eurocurrency Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section
2.01.
“Committed
Loan”
has the meaning specified in Section
2.01.
“Committed
Loan Notice”
means a notice of (a) a Committed Borrowing, (b) a conversion of Committed
Loans
from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans,
pursuant to Section
2.02(a),
which, if in writing, shall be substantially in the form of Exhibit
A.
“Company”
has the meaning specified in the introductory paragraph hereto.
“Company
Guaranty”
means the Company Guaranty made by the Company in favor of the Administrative
Agent and the Lenders, substantially in the form of Exhibit
F.
“Compliance
Certificate”
means a certificate substantially in the form of Exhibit
D.
“Consolidated
EBITDA”
means, for any period, for the Company and its Subsidiaries on a consolidated
basis, an amount equal to Consolidated Net Income for such period plus
(a) the following without duplication and to the extent deducted in calculating
such Consolidated Net Income: (i) income tax expense, (ii) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans), (iii) depreciation and amortization expense, (iv)
amortization of intangibles and organization costs, (v) any extraordinary,
unusual or non-recurring non-cash expenses or losses (including, whether or
not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, non-cash losses on sales of assets outside of the
ordinary course of business), (vi) any extraordinary, unusual or non-recurring
cash expenses or losses to the extent that they do not exceed, in the aggregate,
$75,000,000 during such period, (vii) stock-based compensation expense, and
(viii) cash charges related to the Merger, including related integration costs
of the Company and its Subsidiaries, in an aggregate amount not to exceed
$200,000,000, and minus
(b) the following to the extent included in calculating such Consolidated Net
Income: (i) interest income, (ii) any extraordinary, unusual or non-recurring
non-cash income or gains (including, whether or not otherwise includable as
a
separate item in the statement of such Consolidated Net Income for such period,
non-cash gains on the sales of assets outside of the ordinary course of
business), (iii) any extraordinary, unusual or non-recurring cash income or
gains to the extent they exceed, in the aggregate, $75,000,000 during such
period, and (iv) income tax credits (to the extent not netted from income tax
expense).
“Consolidated
Leverage Ratio”
means, as of any date of determination, the ratio of (a) all Indebtedness of
the
Company and its Subsidiaries as of such date to (b) Consolidated EBITDA for
the
period of the four fiscal quarters most recently ended; provided,
however, that Consolidated EBITDA shall be calculated on a Pro Forma Basis
to
give effect to (i) the Merger or (ii) any
acquisition or sale of a Subsidiary or operating division thereof, in each
case,
for more than $50,000,000.
11
“Consolidated
Net Income”
means, for any period, for the Company and its Subsidiaries, the net income
(or
loss) of the Company and its Subsidiaries, determined on a consolidated basis
and in accordance with GAAP.
“Consolidated
Total Tangible Assets”
means, as of any date of determination, the total assets of the Company and
its
Subsidiaries on a consolidated basis, as determined in accordance with GAAP,
but
excluding Intangible Assets.
“Contractual
Obligation”
means, as to any Person, any provision of any security issued by such Person
or
of any agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled”
have meanings correlative thereto.
“Credit
Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.
“Debt
Rating”
has the meaning specified in the definition of “Applicable Rate.”
“Debtor
Relief Laws”
means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
“Default”
means any event or condition that constitutes an Event of Default or that,
with
the giving of any notice, the passage of time, or both, would be an Event of
Default.
“Default
Rate”
means (a) when used with respect to Obligations other than Letter of Credit
Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided,
however,
that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and
any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus
2% per annum.
“Defaulting
Lender”
means any Lender that (a) has failed to fund any portion of the Committed Loans,
participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to
be
funded by it hereunder unless such failure has been cured, (b) has otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date
when due, unless the subject of a good faith dispute or unless such failure
has
been cured, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
12
“Designated
Borrower”
has the meaning specified in Section
2.14.
“Designated
Borrower Notice”
has the meaning specified in Section
2.14.
“Designated
Borrower Joinder Agreement”
has the meaning specified in Section
2.14.
“Designated
Borrower Sublimit”
means, with respect to any Designated Borrower, an amount equal to the sum
of
the Commitments of all Lenders able to lend to such Designated Borrower. Each
Designated Borrower Sublimit is part of, and not in addition to, the Aggregate
Commitments.
“Designated
Lenders”
has the meaning specified in Section
2.14.
“Disposition”
or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property by any Person, including any
sale, assignment, transfer or other disposal, with or without recourse, of
any
notes or accounts receivable or any rights and claims associated
therewith.
“Dollar”
and “$”
means lawful money of the United States.
“Dollar
Equivalent”
means, at any time, (a) with respect to any amount denominated in Dollars,
such
amount, and (b) with respect to any amount denominated in any Alternative
Currency, the equivalent amount thereof in Dollars as determined by the
Administrative Agent or an L/C Issuer, as the case may be, at such time on
the
basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of Dollars with such Alternative Currency.
“Domestic
Subsidiary”
means any Subsidiary that is organized under the laws of any political
subdivision of the United States.
“Effective
Date”
means the first date all the conditions precedent in Section
4.02
are satisfied or waived in accordance with Section
10.01.
“Eligible
Assignee”
means any Person that meets the requirements to be an assignee under
Sections
10.06(b)(iii),
(v)
and (vi)
(subject to such consents, if any, as may be required under Section
10.06(b)(iii)).
“Eligible
Foreign Subsidiary”
means each of the Foreign Subsidiaries of Company organized under the laws
of
one of the jurisdictions set forth on Schedule
2.14
hereto.
“EMU
Legislation”
means the legislative measures of the European Council for the introduction
of,
changeover to or operation of a single or unified European
currency.
13
“Environmental
Laws”
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, licenses
or
legally binding governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Company within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
“ERISA
Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by
the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or
partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment
as
a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e)
an event or condition which constitutes grounds under Section 4042 of ERISA
for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate.
“Euro”
and “€”
mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
“Eurocurrency
Rate”
means, for any Interest Period with respect to a Eurocurrency Rate Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate
(“BBA
LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time
to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the
commencement of such Interest Period, for deposits in the relevant currency
(for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the “Eurocurrency Rate” for such Interest Period shall be the rate per
annum determined by the Administrative Agent to be the rate at which deposits
in
the relevant currency for delivery on the first day of such Interest Period
in
Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being
made, continued or converted by Bank of America and with a term equivalent
to
such Interest Period would be offered by Bank of America’s London Branch (or
other Bank of America branch or Affiliate) to major banks in the London or
other
offshore interbank market for such currency at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period.
14
“Eurocurrency
Rate Loan”
means a Committed Loan that bears interest at a rate based on the Eurocurrency
Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Committed Loans denominated in an Alternative Currency must be
Eurocurrency Rate Loans.
“Event
of Default”
has the meaning specified in Section
8.01.
“Exchange
Act”
means the Securities Exchange Act of 1934.
“Excluded
Taxes”
means, with respect to the Administrative Agent, any Lender, any L/C Issuer
or
any other recipient of any payment to be made by or on account of any obligation
of any Borrower hereunder, (a) taxes imposed on or measured by its overall
net
income (however denominated), and franchise taxes imposed on it (in lieu of
net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized, in which its principal office
is
located, or as a result of a present or former connection between the
Administrative Agent, any Lender or the L/C Issuer and the jurisdiction imposing
such tax or any political subdivision or taxing authority thereof (other than
a
jurisdiction in which such recipient would not have been treated as doing
business but for and solely as a result of its execution and delivery of any
Loan Document or its exercise of its rights or performance of its obligations
thereunder or otherwise as a result of its participation (or the participation
of an entity in which it owns a beneficial interest) in the transactions
contemplated by the Loan Documents) or, in the case of any Lender, in which
it
application Lending Office is located, (b) any branch profits taxes imposed
by
the United States or any similar tax imposed by any other jurisdiction in which
such Borrower is located and (c) except as provided in the following sentence,
in the case of a Lender (other than an assignee pursuant to a request by the
Company under Section
10.13),
any withholding tax that is imposed on amounts payable to such Lender at the
time such Lender becomes a party hereto (or designates a new Lending Office)
or
is attributable to such Lender’s failure or inability (in the case of an
inability, other than solely as a result of a Change in Law) to comply with
Section
3.01(e),
except to the extent that such Lender (or its assignor, if any) was entitled,
at
the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the applicable Borrower with respect to such withholding
tax pursuant to Section
3.01(a).
Notwithstanding anything to the contrary contained in this definition, “Excluded
Taxes” shall not include any withholding tax imposed at any time on payments
made by or on behalf of a Foreign Obligor to any Lender hereunder or under
any
other Loan Document; provided,
that such Lender shall have complied with the last paragraph of Section
3.01(e).
“Existing
Credit Agreements”
means, collectively, (a) that certain Credit Agreement dated as of August 2,
2004 among Xxxxxx, Bank of America, as administrative agent, and the lenders
party thereto; (b) that certain Five-Year Credit Agreement dated as of December
17, 2004 among Company, Barclays, as administrative agent, and the lenders
party
thereto; and (c) that certain Five-Year Credit Agreement dated as of June 30,
2005 among Thermo Luxembourg Holding S.A.R.L., Thermo Finance Company B.V.,
the
additional borrowers thereto, the Company, the lenders party thereto, and ABN
Amro Bank N.V., as administrative agent.
“Existing
Letters of Credit”
means those letters of credit issued prior to the Effective Date for the account
of Company or Xxxxxx or any of their respective Subsidiaries and identified
on
Schedule
2.03.
15
“Existing
Maturity Date”
has the meaning specified in Section
2.15(a).
“Extending
Lender”
has the meaning specified in Section
2.15(e).
“Extension
Date”
has the meaning specified in Section
2.15(a).
“Federal
Funds Rate” means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day;
provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such
day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions
as
determined by the Administrative Agent.
“Fee
Letters”
means, collectively, (a) the letter agreement, dated July 26, 2006, among the
Company and the Administrative Agent and (b) the letter agreement, dated July
26, 2006, among the Company, Barclays and Barclays Capital.
“First
Extension Date”
has the meaning specified in Section
2.15(a).
“Xxxxxx”
has the meaning specified in the recitals hereto.
“Fitch”
means Fitch Ratings and its successors.
“Foreign
Lender”
means, with respect to any Borrower, any Lender that is organized under the
laws
of, or its applicable Lending Office is located in, a jurisdiction other than
that in which such Borrower is located. For purposes of this definition, the
United States, each state thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.
“Foreign
Obligor”
means a Loan Party that is a Foreign Subsidiary.
“Foreign
Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other
than the United States, a State thereof or the District of Columbia.
“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.
“Fund”
means any Person (other than a natural person) that is (or will be) engaged
in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.
“GAAP”
means generally accepted accounting principles in the United States set forth
in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as
of
the date of determination, consistently applied.
16
“Governmental
Authority”
means the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any
supra-national bodies such as the European Union or the European Central
Bank).
“Granting
Lender”
has the meaning specified in Section
10.06(h).
“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness payable or performable by another Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of
such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition
or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole
or
in part) or (b) any Lien on any assets of such Person securing any Indebtedness
of any other Person, whether or not such Indebtedness is assumed by such Person.
The amount of any Guarantee of any guaranteeing person shall be deemed to be
the
lower of (1) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee is made and (2) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee shall be such
guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith. The term “Guarantee” as a
verb has a corresponding meaning.
“Honor
Date”
has the meaning specified in Section
2.03(c)(i).
“Increase
Effective Date”
has the meaning specified in Section
2.16(d).
“Indebtedness”
of any Person at any date, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (excluding accounts payable and accrued
expenses), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect
to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as
an
account party or applicant under or in respect of bankers’ acceptances, (g) all
reimbursement obligations of such Person in respect of drawings or payments
made
under letters of credit, surety or performance bonds or other similar
arrangements that are not satisfied within three Business Days following the
date of receipt by such Person of notice of such drawing or payment, (h) the
liquidation value of all mandatorily redeemable preferred capital stock of
such
Person, (i) all Guarantees of such Person in respect of obligations of the
kind
referred to in clauses (a) through (f) and (h) above, (j) all obligations of
the
kind referred to in clauses (a) thought (i) above secured by any Lien on
property (including accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation, and (k) for the purposes of Section
8.01(e)
only, all obligations of such Person in respect of Swap Contracts. It is
understood that obligations in respect of a Permitted Receivables Securitization
shall not constitute Indebtedness. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as
a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide
that such Person is not liable therefor.
17
For
all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.
“Indemnified
Taxes”
means Taxes other than Excluded Taxes.
“Indemnitee”
has the meaning specified in Section
10.04(b).
“Information”
has the meaning specified in Section
10.07.
“Intangible
Assets”
means assets that are considered to be intangible assets under GAAP, including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks, patents, franchises, licenses, unamortized deferred charges,
unamortized debt discount and capitalized research and development
costs.
“Interest
Payment Date”
means, (a) as to any Loan other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and the Maturity Date; provided,
however,
that if any Interest Period for a Eurocurrency Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date.
“Interest
Period”
means, as to each Eurocurrency Rate Loan, the period commencing on the date
such
Eurocurrency Rate Loan is disbursed or converted to or continued as a
Eurocurrency Rate Loan and ending on the date one week or one, two, three or
six
months thereafter, as selected by the Company in its Committed Loan Notice;
provided
that:
18
(i) any
Interest Period that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day unless such Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(ii) any
Interest Period 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
calendar month at the end of such Interest Period; and
(iii) no
Interest Period shall
extend beyond the Maturity Date.
“Internal
Control Event”
means a material weakness in, or fraud that involves management or other
employees who have a significant role in, the Company’s internal controls over
financial reporting, in each case as described in the Securities
Laws.
“IRS”
means the United States Internal Revenue Service.
“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).
“Issuer
Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the applicable
L/C Issuer and the Company (or any Subsidiary) or in favor of the applicable
L/C
Issuer and relating to such Letter of Credit.
“Judgment
Currency”
has the meaning specified in Section
10.18.
“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
“L/C
Advance”
means, with respect to each Lender, such Lender’s funding of its participation
in any L/C Borrowing in accordance with its Applicable Percentage. All L/C
Advances shall be denominated in Dollars.
“L/C
Borrowing”
means an extension of credit resulting from (i) a drawing under any Letter
of
Credit (other
than an Acceptance Credit) or (ii) a payment of a Bankers’ Acceptance upon
presentation, in each case
which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.
19
“L/C
Credit Extension”
means, with respect to any Letter of Credit or Bankers’ Acceptance, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.
“L/C
Issuer”
means (i) Bank of America or Barclays, each in its capacity as issuer of Letters
of Credit and Bankers’ Acceptances hereunder, or (ii) any six other Lenders
designated by the Company from time to time who agree to act in the capacity
as
issuer of Letters of Credit and Bankers’ Acceptances hereunder.
“L/C
Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus sum
of the maximum aggregate amount which is, or at any time thereafter may become,
payable by the L/C Issuers under all then outstanding Bankers’ Acceptances,
plus
the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section
1.09.
For all purposes of this Agreement, if on any date of determination a Letter
of
Credit has expired by its terms but any amount may still be drawn thereunder
by
reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall
be
deemed to be “outstanding” in the amount so remaining available to be
drawn.
“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.
“Lending
Office”
means, as to any Lender, the office or offices of such Lender described as
such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the Company and the Administrative
Agent.
“Letter
of Credit”
means (i) any letter of credit issued hereunder and (ii) each of the Existing
Letters of Credit. A Letter of Credit may be a commercial letter of credit
or a
standby letter of credit. Letters of Credit may be issued in Dollars or in
an
Alternative Currency.
“Letter
of Credit Application”
means an application and agreement for the issuance or amendment of a Letter
of
Credit in the form from time to time in use by the
applicable
L/C Issuer and, in the case of any Acceptance Credit, shall include the related
Acceptance Documents.
“Letter
of Credit Expiration Date”
means the day that is seven days prior to the Maturity Date then in effect
(or,
if such day is not a Business Day, the next preceding Business
Day).
“Letter
of Credit Fee”
has the meaning specified in Section
2.03(i).
“Letter
of Credit Sublimit”
means an amount equal to $250,000,000. The Letter of Credit Sublimit is part
of,
and not in addition to, the Aggregate Commitments.
“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or other security interest
or
similar preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title
to
real property, and any financing lease having substantially the same economic
effect as any of the foregoing).
20
“Loan”
means an extension of credit by a Lender to a Borrower under Article
II
in the form of a Committed Loan or a Swing Line Loan.
“Loan
Documents”
means this Agreement, each Designated Borrower Joinder Agreement, each Note,
each Issuer Document, the Fee Letters, the Company Guaranty and the Subsidiary
Guaranty.
“Loan
Parties”
means, collectively, the Company, each Subsidiary Guarantor and each Designated
Borrower.
“Mandatory
Auto-Extension Letter of Credit”
has the meaning specified in Section
2.03(b)(iii).
“Mandatory
Auto-Extension Letter of Credit Sublimit”
means an amount equal to $20,000,000. The Mandatory Auto-Extension Letter of
Credit Sublimit is part of, and not in addition to, the Letter of Credit
Sublimit.
“Mandatory
Cost”
means, with respect to any period, the percentage rate per annum determined
in
accordance with Schedule
1.01.
“Margin
Stock”
has the meaning set forth in Regulation U issued by the FRB.
“Master
Agreement”
has the meaning specified in the definition of Swap Contract.
“Material
Adverse Effect”
means (a) a material adverse effect upon, the business, assets, liabilities
(actual or contingent), operations or financial condition of the Company and
its
Subsidiaries taken as a whole; or (b) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party
of
any Loan Document to which it is a party.
“Material
Subsidiary”
means, as of any date of determination, any Subsidiary of the Company (a) whose
revenues are greater than 5% of the consolidated revenues of the Company and
its
Subsidiaries for the most recent fiscal year of the Company or (b) the book
value of whose assets is greater than 5% of the book value of the total
consolidated assets of the Company and its Subsidiaries in accordance with
GAAP.
“Maturity
Date”
means the later of (a) August 29, 2011, and (b) if maturity is extended pursuant
to Section
2.15,
such extended maturity date as determined pursuant to such Section; provided,
however,
that, in each case, if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.
“Maximum
Rate”
has the meaning specified in Section
10.09.
“Merger”
means the merger of Trumpet with and into Xxxxxx, in accordance with the terms
of the Merger Agreement and the Certificate of Merger, with Xxxxxx being the
surviving corporation.
21
“Merger
Agreement”
means that certain Agreement and Plan of Merger by and among Xxxxxx, Company
and
Trumpet dated as of May 7, 2006 in the form delivered to the Administrative
Agent and Lenders prior to their execution of this Agreement.
“Moody’s”
means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Multiemployer
Plan”
means any employee benefit plan of the type described in Section 4001(a)(3)
of ERISA, to which the Company or any ERISA Affiliate makes or is obligated
to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Non-Consenting
Lender”
has the meaning specified in Section
10.13.
“Non-Extending
Lender”
has the meaning specified in Section
2.15(b).
“Non-Extension
Notice Date”
has the meaning specified in Section
2.03(b)(iii).
“Non-Participating
Lender”
has the meaning specified in Section
2.14(a).
“Note”
means a promissory note made by a Borrower in favor of a Lender evidencing
Loans
made by such Lender to such Borrower, substantially in the form of Exhibit
C.
“Notice
Date”
has the meaning specified in Section
2.15(b).
“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties
of, any Loan Party arising under any Loan Document or otherwise with respect
to
any Loan, Letter of Credit or Bankers’ Acceptance, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as
the
debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.
“Organization
Documents”
means, (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation
or
organization with the applicable Governmental Authority in the jurisdiction
of
its formation or organization and, if applicable, any certificate or articles
of
formation or organization of such entity.
“Other
Taxes”
means all present or future recording, stamp or documentary taxes or any other
excise, transfer, sales or property taxes, charges or similar levies arising
from any payment made hereunder or under any other Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document, excluding (other than an assignment
pursuant to a request by the Company under Section
10.13),
in each case, such amounts that result from an Assignment and Assumption, grant
of a Participation, transfer or designation of a new applicable Lending Office
or other office for receiving payments under any Loan Document.
22
“Outstanding
Amount”
means (i) with respect to Committed Loans on any date, the Dollar Equivalent
amount of the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of such Committed Loans
occurring on such date; (ii) with respect to Swing Line Loans on any date,
the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of such Swing Line Loans occurring
on
such date; and (iii) with respect to any L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such L/C Obligations
on
such date after giving effect to any L/C Credit Extension occurring on such
date
and any other changes in the aggregate amount of the L/C Obligations as of
such
date, including as a result of any reimbursements by the Company of amounts
paid under Bankers’ Acceptances or
of Unreimbursed Amounts.
“Overnight
Rate”
means, for any day, (a) with respect to any amount denominated in Dollars,
the
greater of (i) the Federal Funds Rate and (ii) an overnight rate determined
by
the Administrative Agent, an L/C Issuer, or the Swing Line Lender, as the case
may be, in accordance with banking industry rules on interbank compensation,
and
(b) with respect to any amount denominated in an Alternative Currency, the
rate
of interest per annum at which overnight deposits in the applicable Alternative
Currency, in an amount approximately equal to the amount with respect to which
such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for
such currency to major banks in such interbank market.
“Participant”
has the meaning specified in Section
10.06(d).
“Participating
Lender”
has the meaning specified in Section
2.14(a).
“Participating
Member State”
means each state so described in any EMU Legislation.
“PBGC”
means the Pension Benefit Guaranty Corporation.
“Pension
Plan”
means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV
of
ERISA and is sponsored or maintained by the Company or any ERISA Affiliate
or to
which the Company or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.
“Permitted
Auto-Extension Letter of Credit”
has the meaning specified in Section
2.03(b)(iii).
“Permitted
Receivables Securitization”
means any Receivables Securitization Transaction, provided
that the aggregate amount of the financing represented by such transactions
at
any one time outstanding does not exceed $400,000,000.
23
“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
“Platform”
has the meaning specified in Section
10.02(c).
“Pro
Forma Basis”
means, with respect to compliance with any covenant hereunder, compliance with
such covenant after giving effect to the Merger, any
acquisition, any asset sale of a Subsidiary or operating entity for which
historical financial statements for the relevant period are available or
any
incurrence of Indebtedness (including pro forma adjustments arising out of
events which are directly attributable to the Merger, acquisition,
asset sale or
any incurrence of Indebtedness, are factually supportable and are expected
to
have a continuing impact, in each case as determined on a basis consistent
with
Article 11 of Regulation S-X of the Securities Act, as interpreted by the SEC,
and such other adjustments as are reasonably satisfactory to the Administrative
Agent, in each case as certified by the chief financial officer of the Company)
using, for purposes of determining such compliance, the historical financial
statements of all entities or assets so acquired or sold and the consolidated
financial statements of the Company and its Subsidiaries, which shall be
reformulated as
if such acquisition or asset sale, and all other acquisitions or asset sales
that have been consummated during the period, and any Indebtedness or other
liabilities to be incurred or repaid in connection therewith had been
consummated and incurred or repaid at the beginning of such period.
“Rating
Agency”
means any of S&P, Xxxxx’x or Fitch.
“Receivables”
means accounts receivable of the Company or any of its Subsidiaries (including
any thereof constituting or evidenced by chattel paper, instruments or general
intangibles), and all proceeds thereof and rights (contractual and other) and
collateral related thereto.
“Receivables
Securitization Transaction”
means, with respect to the Company or any of its Subsidiaries, the transfer
of
Receivables by any such Person to a trust, partnership, corporation or other
entity in a transaction in which (a) the transferred Receivables, after giving
effect to such transaction, are not, in accordance with GAAP, treated as assets
on the books of the Company and its Subsidiaries and (b) the liabilities of
the
transferee trust, partnership, corporation or other entity, after giving effect
to such transaction, are not, in accordance with GAAP, treated as liabilities
on
the books of the Company and its Subsidiaries.
“Register”
has the meaning specified in Section
10.06(c).
“Registered
Public Accounting Firm”
has the meaning specified in the Securities Laws and shall be independent of
the
Company as prescribed by the Securities Laws.
“Related
Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
24
“Reportable
Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30 day notice period has been waived.
“Request
for Credit Extension”
means (a) with respect to a Borrowing, conversion or continuation of Committed
Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension,
a
Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing
Line Loan Notice.
“Required
Lenders”
means, as of any date of determination, Lenders having more than 50% of the
Aggregate Commitments or, if the commitment of each Lender to make Loans and
the
obligation of each L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section
8.02,
Lenders holding in the aggregate more than 50% of the Total Outstandings (with
the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition); provided
that the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
“Responsible
Officer”
means, with respect to any Person, the chief executive officer, president or
chief financial officer of such Person. Any document delivered hereunder that
is
signed by a Responsible Officer of such Person shall be conclusively presumed
to
have been authorized by all necessary corporate, partnership and/or other action
on the part of such Person and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Person.
“Restricted
Margin Stock”
means, Margin Stock owned by the Company or any of its Subsidiaries which
represents not more than 25% of the aggregate value (determined in accordance
with Regulation U), on a consolidated basis, of the property and assets of
the
Company and its Subsidiaries (including any Margin Stock) that is subject to
the
provisions of Sections
7.01
and 7.04.
“Revaluation
Date”
means (a) with respect to any Loan, each of the following: (i) each date of
a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in
an
Alternative Currency pursuant to Section
2.02,
and (iii) such additional dates as the Administrative Agent shall determine
or
the Required Lenders shall require; and (b) with respect to any Letter of
Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof (solely
with respect to the increased amount), (iii) each date of any payment by the
applicable L/C Issuer under any Letter of Credit denominated in an Alternative
Currency, and (iv) such additional dates as the Administrative Agent or the
applicable L/C Issuer shall determine or the Required Lenders shall
require.
“S&P”
means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and any successor thereto.
25
“Same
Day Funds”
means (a) with respect to disbursements and payments in Dollars, immediately
available funds, and (b) with respect to disbursements and payments in an
Alternative Currency, same day or other funds as may be determined by the
Administrative Agent or the applicable L/C Issuer, as the case may be, to be
customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative
Currency.
“Xxxxxxxx-Xxxxx”
means the Xxxxxxxx-Xxxxx Act of 2002.
“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Second
Extension Date”
has the meaning specified in Section
2.15(a).
“Securities
Act”
means the Securities Act of 1933.
“Securities
Laws”
means the Securities Act, the Exchange Act, Xxxxxxxx-Xxxxx and the applicable
accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC.
“SPC”
has the meaning specified in Section
10.06(h).
“Special
Notice Currency”
means at any time an Alternative Currency, other than (a) the currency of a
country that is a member of the Organization for Economic Cooperation and
Development at such time located in North America or Europe or (b)
Yen.
“Spot
Rate”
for a currency means the rate determined by the Administrative Agent or an
L/C
Issuer, as applicable, to be the rate quoted by the Administrative Agent or
the
L/C Issuer, as the case may be, as the spot rate for the purchase by such Person
of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days prior
to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent or an L/C Issuer may obtain such spot rate from
another financial institution designated by the Administrative Agent or such
L/C
Issuer if the Administrative Agent or such L/C Issuer, as the case may be,
does
not have as of the date of determination a spot buying rate for any such
currency; provided further,
that such L/C Issuer may use such spot rate quoted on the date as of which
the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.
“Sterling”
and “£”
mean the lawful currency of the United Kingdom.
“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity which is consolidated with such Person under
GAAP. Unless otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Company.
“Subsidiary
Guarantors”
means (a) as of the Effective Date, Xxxxxx and (b) thereafter, collectively,
Xxxxxx and any additional Subsidiaries of the Company executing the Subsidiary
Guaranty pursuant to Section
2.17.
26
“Subsidiary
Guaranty”
means the Subsidiary Guaranty made by the Subsidiary Guarantor(s) in favor
of
the Administrative Agent and the Lenders, substantially in the form of
Exhibit
G.
“Swap
Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any
of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement relating to any of the foregoing (any
such master agreement, together with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap
Termination Value”
means, in respect of any one or more Swap Contracts, after taking into account
the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
“Swing
Line”
means the revolving credit facility made available by the Swing Line Lender
pursuant to Section
2.04.
“Swing
Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section
2.04.
“Swing
Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.
“Swing
Line Loan”
has the meaning specified in Section
2.04(a).
“Swing
Line Loan Notice”
means a notice of a Swing Line Borrowing pursuant to Section
2.04(b),
which, if in writing, shall be substantially in the form of Exhibit
B.
“Swing
Line Sublimit”
means an amount equal to $200,000,000. The Swing Line Sublimit is part of,
and
not in addition to, the Aggregate Commitments.
“Swiss
Franc”
means lawful money of the Swiss Confederation.
27
“TARGET
Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases
to
be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of
payments in Euro.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.
“Threshold
Amount”
means $75,000,000.
“Threshold
Indebtedness”
has the meaning specified in Section
8.01(e).
“Total
Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
“Trumpet”
means Trumpet Merger Corporation, a Delaware corporation.
“Type”
means, with respect to a Committed Loan, its character as a Base Rate Loan
or a
Eurocurrency Rate Loan.
“Unfunded
Pension Liability”
means the excess of a Pension Plan’s benefit liabilities under Section
4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension
Plan
pursuant to Section 412 of the Code for the applicable plan year.
“United
States”
and “U.S.”
mean the United States of America.
“Unreimbursed
Amount”
has the meaning specified in Section
2.03(c)(i).
“Unrestricted
Margin Stock”
means any Margin Stock owned by the Company or any of its Subsidiaries which
is
not Restricted Margin Stock.
“Yen”
and “¥”
mean the lawful currency of Japan.
1.02 Other
Interpretive Provisions. With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include,”
“includes”
and “including”
shall be deemed to be followed by the phrase “without
limitation.”
The word “will”
shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to
any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to
any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall
be
construed to include such Person’s successors and assigns, (iii) the words
“herein,”
“hereof”
and “hereunder,”
and words of similar import when used in any Loan Document, shall be construed
to refer to such Loan Document in its entirety and not to any particular
provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections
of,
and Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and
any
reference to any law or regulation shall, unless otherwise specified, refer
to
such law or regulation as amended, modified or supplemented from time to time,
and (vi) the words “asset”
and “property”
shall be construed to have the same meaning and effect and to refer to any
and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
28
(b) In
the computation of periods of time from a specified date to a later specified
date, the word “from”
means “from
and including;”
the words “to”
and “until”
each mean “to
but excluding;”
and the word “through”
means “to
and including.”
(c) Section
headings herein and in the other Loan Documents are included for convenience
of
reference only and shall not affect the interpretation of this Agreement or
any
other Loan Document.
1.03 Accounting
Terms.
(a) Generally.
All accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with
that
used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.
(b) Changes
in GAAP.
If at any time any material change in GAAP would affect the computation of
any
financial ratio or requirement set forth in any Loan Document, and either the
Company or the Required Lenders shall so request, the Administrative Agent,
the
Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change
in
GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed
in
accordance with GAAP prior to such change therein and (ii) the Company
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or
requirement made before and after giving effect to such change in
GAAP.
1.04 Rounding.
Any
financial ratios required to be maintained by the Company pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other
component, carrying the result to one place more than the number of places
by
which such ratio is expressed herein and rounding the result up or down to
the
nearest number (with a rounding-up if there is no nearest number).
29
1.05 Exchange
Rates; Currency Equivalents.
(a) The
Administrative Agent or the applicable L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective
as
of such Revaluation Date and shall be the Spot Rates employed in converting
any
amounts between the applicable currencies until the next Revaluation Date to
occur. Except for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency (other than Dollars)
for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so
determined by the Administrative Agent or an L/C Issuer, as
applicable.
(b) Wherever
in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance,
amendment or extension of a Letter of Credit, an amount, such as a required
minimum or multiple amount, is expressed in Dollars, but such Committed
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined
by
the Administrative Agent or an L/C Issuer, as the case may be.
1.06 Additional
Alternative Currencies.
(a) The
Company
may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed
in the definition of “Alternative
Currency;”
provided
that such requested currency is a lawful currency (other than Dollars) that
is
readily available and freely transferable and convertible into Dollars. In
the
case of any such request with respect to the making of Eurocurrency Rate Loans,
such request shall be subject to the approval of the Administrative Agent and
the Lenders; and in the case of any such request with respect to the issuance
of
Letters of Credit, such request shall be subject to the approval of the
Administrative Agent and each L/C Issuer.
(b) Any
such
request shall be made to the Administrative Agent not later than 11:00 a.m.,
20
Business Days prior to the date of the desired Credit Extension (or such other
time or date as may be agreed by the Administrative Agent and, in the case
of
any such request pertaining to Letters of Credit, the applicable L/C Issuer,
in
its or their sole discretion). In the case of any such request pertaining to
Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each
Lender thereof; and in the case of any such request pertaining to Letters of
Credit, the Administrative Agent shall promptly notify the applicable L/C Issuer
thereof. Each Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the applicable L/C Issuer (in the case of a request pertaining
to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00
a.m., ten Business Days after receipt of such request whether it consents,
in
its sole discretion, to the making of Eurocurrency Rate Loans or the issuance
of
Letters of Credit, as the case may be, in such requested currency.
30
(c) Any
failure
by a Lender or an L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed
to be
a refusal by such Lender or such L/C Issuer, as the case may be, to permit
Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such
requested currency. If the Administrative Agent and all the Lenders consent
to
making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any
Committed Borrowings of Eurocurrency Rate Loans; and if the Administrative
Agent
and the L/C Issuers consent to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify the Company and
such currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Letter of Credit issuances. If the
Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section
1.06,
the Administrative Agent shall promptly so notify the Company.
1.07 Change
of
Currency.
(a) Each
obligation of the Borrowers to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro
as
its lawful currency after the date hereof shall be redenominated into Euro
at
the time of such adoption (in accordance with the EMU Legislation). 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 Committed Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Committed Borrowing, at the end of the then current
Interest Period.
(b) Each
provision of this
Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time 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) Each
provision of this Agreement also shall be subject to such reasonable changes
of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in
currency.
1.08 Times
of Day.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
1.09 Letter
of
Credit Amounts. Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the Dollar Equivalent of the stated amount of such Letter of
Credit in effect at such time; provided,
however,
that with respect to any Letter of Credit that, by its terms or the terms of
any
Issuer Document related thereto, provides for one or more automatic increases
in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the Dollar Equivalent of the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.
31
ARTICLE
II.
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed
Loans. Subject
to the terms and conditions set forth herein, each Lender severally agrees
to
make loans (each such loan, a “Committed
Loan”)
to the Borrowers in Dollars or in one or more Alternative Currencies from time
to time, on any Business Day during the Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s
Commitment; provided,
however,
that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (iii) the aggregate
Outstanding Amount of all Committed Loans made to any Designated Borrower shall
not exceed the Designated Borrowers Sublimit applicable to such Designated
Borrower. Within the limits of each Lender’s Commitment, and subject to the
other terms and conditions hereof, the Borrowers may borrow under this
Section
2.01,
prepay under Section
2.05,
and reborrow under this Section
2.01.
Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.
2.02 Borrowings,
Conversions and Continuations of Committed Loans.
(a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon
the
Company’s irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 12:00 noon (i) three Business Days prior to the requested date of
any
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Committed Loans, (ii) three Business Days
(or four Business Days, in the case of Yen, or five Business Days, in the case
of a Special Notice Currency) prior to the requested date of any Borrowing
or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any Borrowing of Base Rate Committed Loans.
Each telephonic notice by the Company pursuant to this Section
2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of
written
Committed Loan Notice, appropriately completed and signed by a Borrowing
Officer. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof; provided, however, that each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of (A) with
respect to Eurocurrency Rate Loans denominated in Sterling, £7,000,000 or a
whole multiple of £500,000 in excess thereof, (B) with respect to Eurocurrency
Rate Loans denominated in Euros, €10,000,000 or a whole multiple of €1,000,000
in excess thereof, (C) with respect to Eurocurrency Rate Loans denominated
in
Yen, ¥1,000,000,000 or a whole multiple of ¥100,000,000 in excess thereof, and
(D) with respect to Eurocurrency Rate Loans denominated in any other Alternative
Currency, the Alternative Currency Equivalent of $10,000,000 or a whole multiple
of $1,000,000 in excess thereof. Except as provided in Sections
2.03(c)
and 2.04(c),
each Committed Borrowing of or conversion to Base Rate Committed Loans shall
be
in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Company is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation
of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion
or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued,
(iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, (v) if applicable, the duration of the Interest Period
with
respect thereto, (vi) the currency of the Committed Loans to be borrowed, and
(vii) if applicable, the Designated Borrower. If the Company fails to specify
a
currency in a Committed Loan Notice requesting a Borrowing, then the Committed
Loans so requested shall be made in Dollars. If the Company fails to specify
a
Type of Committed Loan in a Committed Loan Notice or if the Company fails to
give a timely notice requesting a conversion or continuation, then the
applicable Committed Loans shall be made as, or converted to, Base Rate Loans;
provided,
however,
that in the case of a failure to timely request a continuation of Committed
Loans denominated in an Alternative Currency, such Loans shall be continued
as
Eurocurrency Rate Loans in their original currency with an Interest Period
of
one month. Any automatic conversion to Base Rate Loans shall be effective as
of
the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to
have
specified an Interest Period of one month. No Committed Loan may be converted
into or continued as a Committed Loan denominated in a different currency,
but
instead must be prepaid in the original currency of such Committed Loan and
reborrowed in the other currency.
32
(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage
of
the applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Committed Loans denominated in a currency other than Dollars,
in
each case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available
to the Administrative Agent in Same Day Funds at the Administrative Agent’s
Office for the applicable currency not later than 1:00 p.m., in the case of
any
Committed Loan denominated in Dollars, and not later than the Applicable Time
specified by the Administrative Agent in the case of any Committed Loan in
an
Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section
4.03
(and, if such Borrowing is the initial Credit Extension, Section
4.02),
the Administrative Agent shall make all funds so received available to the
Company or the other applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of such Borrower on
the
books of Bank of America with the amount of such funds or (ii) wire transfer
of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Company; provided,
however,
that if, on the date the Committed Loan Notice with respect to such Borrowing
denominated in Dollars is given by the Company, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to
the
payment in full of any such L/C Borrowings, and, second, shall be made available
to the applicable Borrower as provided above.
33
(c) Except
as
otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency
Rate
Loan. During the existence of a Default, (i) no Loans of the Company may
be
requested as, converted to or continued as Eurocurrency Rate Loans (whether
in
Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then
outstanding Eurocurrency Rate Loans denominated in an Alternative Currency
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 (ii) no Loans of any Designated Borrower may be requested as,
converted to or continued as Eurocurrency Rate Loans with an Interest Period
of
more than one month without the consent of the Required Lenders.
(d) The
Administrative Agent shall promptly notify the Company and the Lenders of
the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon
determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Company and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After
giving effect to all Committed Borrowings, all conversions of Committed Loans
from one Type to the other, and all continuations of Committed Loans as the
same
Type, there shall not be more than ten Interest Periods in effect at any
time
with respect to Committed Loans.
2.03 Letters
of
Credit and Bankers’ Acceptances.
(a) The
Letter of Credit Commitment.
(i) Subject
to the terms
and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon
the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Effective Date
until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated
in
Dollars or in one or more Alternative Currencies for the account of the Company
or its Subsidiaries, and to amend or extend Letters of Credit previously issued
by it, in accordance with subsection (b) below, (2) to honor drawings under
the
Letters of Credit and (3) with respect to Acceptance Credits, to create Bankers’
Acceptances in accordance with the terms thereof and hereof; and (B) the Lenders
severally agree to participate in Letters of Credit and Bankers’ Acceptances
issued for the account of the Company or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total Outstandings shall not
exceed the Aggregate Commitments, (y) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by
the
Company for the issuance or amendment of a Letter of Credit shall be deemed
to
be a representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof,
the
Company’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have
been
issued pursuant hereto, and from and after the Effective Date shall be subject
to and governed by the terms and conditions hereof.
34
(ii)
No
L/C Issuer shall be under any
obligation to issue any Letter of Credit if:
(A)
any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter
of Credit or any related Bankers’ Acceptance, or any Law applicable to such L/C
Issuer or any request or directive (whether or not having the force of law)
from
any Governmental Authority with jurisdiction over such L/C Issuer shall
prohibit, or request that such L/C Issuer refrain from, the issuance of letters
of credit or related bankers’ acceptance generally or such Letter of Credit or
any related Bankers’ Acceptance in particular or shall impose upon such L/C
Issuer with respect to such Letter of Credit or related Bankers’ Acceptance any
restriction, reserve or capital requirement (for which such L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense which was
not
applicable on the Closing Date and which such L/C Issuer in good xxxxx xxxxx
material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of such
L/C
Issuer applicable to letters of credit generally;
(C) subject
to
Section
2.03(b)(iii),
the expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
(D) the
expiry date of such requested Letter of Credit would occur after the Letter
of
Credit Expiration Date, unless all the Lenders have approved such expiry
date;
(E) the
maturity date of any Bankers’ Acceptance issued under any such requested
Acceptance Credit would occur earlier than 30 or later than 120 days from the
date of issuance of the Bankers’ Acceptance, unless the Required Lenders have
approved such expiry date;
(F) except
as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter
of Credit or related Bankers’ Acceptance is in an initial stated amount less
than $100,000, in the case of a commercial Letter of Credit, or $500,000, in
the
case of a standby Letter of Credit;
35
(G) except
as
otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter
of
Credit is to be denominated in a currency other than Dollars or an Alternative
Currency;
(H) such
L/C Issuer does not as of the issuance date of such requested Letter of Credit
issue Letters of Credit in the requested currency;
(I) a
default of any Lender’s obligations to fund under Section
2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless
such
L/C Issuer has entered into satisfactory arrangements with the Company or such
Lender to eliminate such L/C Issuer’s risk with respect to such Lender;
or
(J) as
to Acceptance Credits, if the Bankers’ Acceptance created or to be created
thereunder shall not be an eligible bankers’ acceptance under Section 13 of the
Federal Reserve Act (12 U.S.C. 372).
(iii) No
L/C Issuer shall
be under any obligation to amend any Letter of Credit if (A) such L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof or (B) the Beneficiary of such Letter
of
Credit does not accept the proposed amendment to such Letter of
Credit.
(v) Each
L/C
Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
and Bankers’ Acceptances issued by it and the documents associated therewith,
and each L/C Issuer shall have all of the benefits and immunities (A) provided
to the Administrative Agent in Article
IX
with respect to any acts taken or omissions suffered by such L/C Issuer in
connection with Letters of Credit and Bankers’ Acceptances issued by it or
proposed to be issued by it and Issuer Documents and Acceptance Documents
pertaining to such Letters of Credit and Bankers’ Acceptances as fully as if the
term “Administrative
Agent”
as used in Article
IX
included such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(vi) Each
L/C Issuer shall provide (promptly after the end of each month) to the
Administrative Agent a report as of the last Business Day of such month showing
the amount of all Letters of Credit of such L/C Issuer outstanding during such
month.
(b) Procedures
for Issuance and
Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each
Letter
of Credit shall be issued or amended, as the case may be, upon the request
of
the Company delivered to one of the L/C Issuers (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Borrowing Officer. Such Letter of Credit
Application must be received by such L/C Issuer and the Administrative Agent
not
later than 11:00 a.m. at least two Business Days (or such later date and time
as
the Administrative Agent and such L/C Issuer may agree in a particular instance
in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to such L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (B)
the
amount thereof; (C) the expiry date thereof; (D) the name and address of the
Beneficiary thereof; (E) the documents to be presented by such Beneficiary
in
case of any drawing or presentation thereunder; (F) the full text of any
certificate to be presented by such Beneficiary in case of any drawing or
presentation thereunder; and (G) such other matters as such L/C Issuer may
require. In the case of a request for an amendment of any outstanding Letter
of
Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit
to
be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as such L/C Issuer may reasonably require. Additionally, the Company
shall furnish to the applicable L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as
such
L/C Issuer or the Administrative Agent may reasonably require.
36
(ii) Promptly
after receipt of any Letter of Credit Application, the applicable L/C Issuer
will confirm with the Administrative Agent (by telephone or in writing) that
the
Administrative Agent has received a copy of such Letter of Credit Application
from the Company and, if not, such L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the applicable L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, at least
one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained
in
Article
IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
such L/C Issuer shall, on the requested date, issue a Letter of Credit for
the
account of the Company (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with such
L/C Issuer’s usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the applicable L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the
product of such Lender’s Applicable Percentage times
the amount of such Letter of Credit. Immediately upon the creation of each
Bankers’ Acceptance, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the applicable L/C Issuer a risk
participation in such Bankers’ Acceptance in an amount equal to the product of
such Lenders times the amount of such Bankers’ Acceptance.
(iii) If
the Company so requests in any applicable Letter of Credit Application, (A)
the
applicable L/C Issuer agrees to issue a Letter of Credit that has automatic
extension provisions (each, a “Mandatory
Auto-Extension Letter of Credit”);
provided
that after giving effect to any L/C Credit Extension with respect any Mandatory
Auto-Extension Letter of Credit the Outstanding Amount of the L/C Obligations
in
respect of all Mandatory Auto-Extension Letters of Credit shall not exceed
the
Mandatory Auto- Extension Letter of Credit Sublimit and (B) the applicable
L/C
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, a “Permitted
Auto-Extension Letter of Credit”);
provided
that any such Mandatory Auto-Extension Letter of Credit or Permitted
Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any
such
extension at least once in each twelve-month period (commencing with the date
of
issuance of such Letter of Credit) by giving prior notice to the Beneficiary
thereof not later than a day (the “Non-Extension
Notice Date”)
in each such twelve-month period to be agreed upon at the time such Letter
of
Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the
Company shall not be required to make a specific request to such L/C Issuer
for
any such extension. Once a Mandatory Auto-Extension Letter of Credit or
Permitted Auto-Extension Letter of Credit has been issued, the Lenders shall
be
deemed to have authorized (but may not require) the applicable L/C Issuer to
extend such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided,
however,
that such L/C Issuer shall not extend such Letter of Credit if (A) such L/C
Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form
(as
extended) under the terms hereof (by reason of the provisions of clause (ii)
of
Section
2.03(a)
or otherwise), or (B) it has received notice (which may be by telephone or
in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) in the case of a Permitted Auto-Extension Letter
of Credit, from the Administrative Agent that the Required Lenders have elected
not to permit such extension or (2) from the Administrative Agent, any Lender
or
the Company that one or more of the applicable conditions specified in
Section
4.03
is not then satisfied, and in each such case directing such L/C Issuer not
to
permit such extension.
37
(iv) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the Beneficiary thereof,
the applicable L/C Issuer will also deliver to the Company and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
receipt from the Beneficiary of any Letter of Credit of any notice of a drawing
or, with respect to any Acceptance Credit, presentation of documents, under
such
Letter of Credit, or any presentation for payment of a Bankers’ Acceptance, the
applicable L/C Issuer shall notify the Company and the Administrative Agent
thereof. In the case of a Letter of Credit denominated in an Alternative
Currency, the Company shall reimburse the applicable L/C Issuer in such
Alternative Currency, unless the Company shall have notified such L/C Issuer
promptly following receipt of the notice of drawing that the Company will
reimburse such L/C Issuer in Dollars. In the case of any such reimbursement
in
Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the applicable L/C Issuer shall notify the Company of the Dollar
Equivalent of the amount of the drawing promptly following the determination
thereof. In the event the Company receives such notice not later than 9:00
a.m.
on the date of any payment by the applicable L/C Issuer under a Letter of Credit
or Bankers’ Acceptance to be reimbursed in Dollars, or the Applicable Time on
the date of any payment by such L/C Issuer under a Letter of Credit to be
reimbursed in an Alternative Currency (each such date, an “Honor
Date”),
the Company shall reimburse such L/C Issuer through the Administrative Agent
in
an amount equal to the amount of such drawing or Bankers’ Acceptance, as
applicable, and in the applicable currency not later than 11:00 a.m. on such
Honor Date. In the event the Company receives such notice after 9:00 a.m. on
any
Honor Date, the Company shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing or
Bankers’ Acceptance, as applicable, and in the applicable currency not later
than 11:00 a.m. on the immediately succeeding Business Day. If the Company
fails
to so reimburse the applicable L/C Issuer by such time, the Administrative
Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing or payment (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in
an
Alternative Currency) (the “Unreimbursed
Amount”),
and the amount of such Lender’s Applicable Percentage thereof. In such event,
the Company shall be deemed to have requested a Committed Borrowing of Base
Rate
Loans to be disbursed on the Honor Date, or the immediately succeeding Business
Day, as the case may be, in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section
2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth
in
Section
4.03
(other than the delivery of a Committed Loan Notice). Any notice given by the
applicable L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
38
(ii)
Each
Lender shall upon any notice pursuant to Section
2.03(c)(i)
make funds available to the Administrative Agent for the account of the
applicable L/C Issuer, in Dollars, at the Administrative Agent’s Office for
Dollar-denominated payments in an amount equal to its Applicable Percentage
of
the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the provisions
of Section
2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the applicable L/C Issuer in
Dollars.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section
4.03
cannot be satisfied or for any other reason, the Company shall be deemed to
have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due
and payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender’s payment to the Administrative Agent
for the account of the applicable L/C Issuer pursuant to Section
2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section
2.03.
(iv) Until
each Lender funds
its Committed Loan or L/C Advance pursuant to this Section
2.03(c)
to reimburse the applicable L/C Issuer for any amount drawn under any Letter
of
Credit or payments made on any Bankers’ Acceptance, interest in respect of such
Lender’s Applicable Percentage of such amount shall be solely for the account of
such L/C Issuer.
39
(v) Each
Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
applicable L/C Issuer for amounts drawn under Letters of Credit and payments
made on Bankers’ Acceptances, as contemplated by this Section
2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against any L/C Issuer, the Company,
any
Subsidiary or any other Person for any reason whatsoever; (B) the existence
of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided,
however,
that each Lender’s obligation to make Committed Loans pursuant to this
Section
2.03(c)
is subject to the conditions set forth in Section
4.03
(other than delivery by the Company of a Committed Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the
Company to reimburse any L/C Issuer for the amount of any payment made by such
L/C Issuer under any Letter of Credit or Bankers’ Acceptance, together with
interest as provided herein.
(vi) If
any Lender fails to make available to the Administrative Agent for the account
of the applicable L/C Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section
2.03(c)
by the time specified in Section
2.03(c)(ii),
such L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for
the
period from the date such payment is required to the date on which such payment
is immediately available to such L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by such L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest and fees
as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the applicable
L/C
Issuer submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment
of Participations.
(i) At
any time after the applicable L/C Issuer has made a payment under any Letter
of
Credit or Bankers’ Acceptance and has received from any Lender such Lender’s L/C
Advance in respect of such payment in accordance with Section
2.03(c),
if the Administrative Agent receives for the account of such L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including proceeds of cash
collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof in
Dollars and in the same funds as those received by the Administrative
Agent.
40
(ii) If
any payment received by the Administrative Agent for the account of any L/C
Issuer pursuant to Section
2.03(c)(i)
is required to be returned under any of the circumstances described in
Section
10.05
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of such L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the
date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.
(e) Obligations
Absolute.
The
obligation of the Company to reimburse the applicable L/C Issuer for each
drawing under each Letter of Credit and each payment under any Bankers’
Acceptance and to repay each L/C Borrowing shall be absolute, unconditional
and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any
lack of validity or enforceability of such Letter of Credit or Bankers’
Acceptance, this Agreement, or any other Loan Document;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that the
Company or any Subsidiary may have at any time against any Beneficiary or any
transferee of such Letter of Credit or Bankers’ Acceptance (or any Person for
whom any such Beneficiary or any such transferee may be acting), such L/C Issuer
or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or Bankers’ Acceptance or any
agreement or instrument relating thereto, or any unrelated
transaction;
(iii)
any
draft, demand, certificate or other document or endorsement presented under
or
in connection with such Letter of Credit or Bankers’ Acceptance proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit or obtain payment under any Bankers’
Acceptance;
(iv) any
payment by such L/C Issuer under such Letter of Credit or Bankers’ Acceptance
against presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by such L/C Issuer
under such Letter of Credit or Bankers’ Acceptance to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of
creditors, liquidator, receiver or other representative of or successor to
any
Beneficiary or any transferee of such Letter of Credit or Bankers’ Acceptance,
including any arising in connection with any proceeding under any Debtor Relief
Law;
(v) any
adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or any Subsidiary or in the
relevant currency markets generally; or
41
(vi) any
other circumstance or happening whatsoever, whether or not similar to any of
the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Company or any Subsidiary except
for circumstances arising solely from the gross negligence or willful misconduct
of the L/C Issuer.
The
Company shall
promptly examine a copy of each Letter of Credit and each amendment thereto,
and
each Bankers’ Acceptance, that is delivered to it and, in the event of any claim
of noncompliance with the Company’s instructions or other irregularity, the
Company will promptly notify the applicable L/C Issuer. The Company shall be
conclusively deemed to have waived any such claim against the applicable L/C
Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role
of L/C Issuer. Each
Lender and the Company agree that, in paying any drawing under a Letter of
Credit or making any payment under a Bankers’ Acceptance, the applicable L/C
Issuer shall not have any responsibility to obtain any document (other than
any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. None of any L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
any
L/C Issuer shall be liable to any Lender for (i) any action taken or omitted
in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit, Bankers’ Acceptance or Issuer Document. The Company
hereby assumes all risks of the acts or omissions of any Beneficiary or
transferee with respect to its use of any Letter of Credit or Bankers’
Acceptance; provided,
however,
that this assumption is not intended to, and shall not, preclude the Company’s
pursuing such rights and remedies as it may have against the Beneficiary or
transferee at law or under any other agreement. None of any L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of any L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (vi) of
Section
2.03(e);
provided,
however,
that anything in such clauses to the contrary notwithstanding, the Company
may
have a claim against an L/C Issuer, and such L/C Issuer may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by such L/C Issuer’s bad faith, willful misconduct or gross
negligence or such L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the Beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter
of
Credit or to honor any Bankers’ Acceptance presented for payment in strict
compliance with its terms an conditions.
In furtherance and not in limitation of the foregoing, an L/C Issuer may accept
documents that appear on their face to be in order, without responsibility
for
further investigation, regardless of any notice or information to the contrary,
and such L/C Issuer shall not be responsible for the validity or sufficiency
of
any instrument endorsing, transferring or assigning or purporting to endorse,
transfer or assign a Letter of Credit or Bankers’ Acceptance or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to
be invalid or ineffective for any reason.
42
(g) Cash
Collateral.
(i)
Upon
the request of the Administrative Agent, (A) if the applicable L/C Issuer has
honored any full or partial drawing request under any Letter of Credit or made
any payment under any Bankers’ Acceptance and such drawing has resulted in an
L/C Borrowing that the Company has not repaid within three Business Days of
such
drawing or payment, or (B) if, as of the Letter of Credit Expiration Date,
any
L/C Obligation for any reason remains outstanding, the Company shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.
(ii) Sections
2.05
and 8.02(c)
set forth certain additional requirements to deliver cash collateral hereunder.
For purposes of this Section
2.03,
Section
2.05 and
Section
8.02(c),
“Cash
Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the
benefit of the L/C Issuers and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in
form
and substance reasonably satisfactory to the Administrative Agent and the L/C
Issuers (which documents are hereby consented to by the Lenders). Derivatives
of
such term have corresponding meanings.
(h) Applicability
of ISP and UCP. Unless
otherwise expressly agreed by the applicable L/C Issuer and the Company when
a
Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber
of
Commerce at the time of issuance shall apply to each commercial Letter of
Credit.
(i) Letter
of Credit Fees.
The Company shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
fee
(the “Letter
of Credit Fee”) for
each Letter of Credit and each Bankers’ Acceptance that is issued and
outstanding hereunder equal to the Applicable Rate times
the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit or the maximum stated amount of such Bankers’ Acceptance, as
the case may be, that is issued and outstanding hereunder. For purposes of
computing the daily amount available to be drawn under any Letter of Credit,
the
amount of such Letter of Credit shall be determined in accordance with
Section
1.09.
Letter of Credit Fees shall be (i) due and payable on the tenth Business Day
after the end of each March, June, September and December, commencing with
the
first such date to occur after the issuance of such Letter of Credit or Bankers’
Acceptance, as the case may be, on the Letter of Credit Expiration Date and
thereafter on demand and (ii) computed on a quarterly basis in arrears. If
there
is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit or the maximum stated amount
of each Bankers’ Acceptance, as the case may be, shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while
any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.
43
(j) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to the applicable L/C Issuer for its own account,
in
Dollars, a fronting fee with respect to each Letter of Credit and each Bankers’
Acceptance issued and outstanding, equal to 1/8 of 1% per annum times
the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit or the maximum stated amount of such Bankers’ Acceptance, as
the case may be. Such fronting fee shall be (i) due and payable on the tenth
Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in
the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand and (ii) computed on a quarterly basis in arrears.
For
purposes of computing the daily amount available to be drawn under any Letter
of
Credit or Bankers’ Acceptance, as applicable, the amount of such Letter of
Credit shall be determined in accordance with Section
1.09.
In addition, the Company shall pay directly to the applicable L/C Issuer for
its
own account, in Dollars, the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit and bankers’ acceptances as from time to time in
effect. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(k) Conflict
with Issuer Documents.
In the event of any conflict between the terms hereof and the terms of any
Issuer Document, the terms hereof shall control.
(l) Letters
of Credit Issued for Subsidiaries.
Notwithstanding that a Letter of Credit issued or outstanding hereunder is
in
support of any obligations of, or is for the account of, a Subsidiary, the
Company shall be obligated to reimburse the applicable L/C Issuer hereunder
for
any and all drawings under such Letter of Credit. The Company hereby
acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the Company, and that the Company’s
business derives substantial benefits from the businesses of such
Subsidiaries.
2.04 Swing
Line
Loans.
(a) The
Swing Line.
Subject to the terms and conditions set forth herein, the Swing Line Lender
agrees, in reliance upon the agreements of the other Lenders set forth in this
Section
2.04,
to make loans in Dollars (each such loan, a “Swing
Line Loan”)
to the Company from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender’s Commitment; provided,
however,
that after giving effect to any Swing Line Loan, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and provided,
further,
that the Company shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to
the
other terms and conditions hereof, the Company may borrow under this
Section
2.04,
prepay under Section
2.05,
and reborrow under this Section
2.04.
Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of
such
Lender’s Applicable Percentage times
the amount of such Swing Line Loan.
44
(b) Borrowing
Procedures.
Each Swing Line Borrowing shall be made upon the Company’s irrevocable notice to
the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 2:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of
$500,000, and (ii) the requested borrowing date, which shall be a Business
Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Borrowing Officer of the Company.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify
the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior
to
2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the
Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section
2.04(a),
or (B) that one or more of the applicable conditions specified in Article
IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Company at its office by crediting the account of the Company on the
books of the Swing Line Lender in Same Day Funds.
(c) Refinancing
of Swing Line Loans.
(i) The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Company (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Committed
Loan in an amount equal to such Lender’s Applicable Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section
2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section
4.03.
The Swing Line Lender shall furnish the Company with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Committed Loan Notice available
to
the Administrative Agent in Same Day Funds for the account of the Swing Line
Lender at the Administrative Agent’s Office for Dollar-denominated payments not
later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section
2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the Swing Line Lender.
45
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section
2.04(c)(i),
the request for Base Rate Committed Loans submitted by the Swing Line Lender
as
set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line
Loan
and each Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section
2.04(c)(i)
shall be deemed payment in respect of such participation.
(iii) If
any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section
2.04(c)
by the time specified in Section
2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which
such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the Swing
Line
Lender in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be. A certificate
of the Swing Line Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each
Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section
2.04(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Company or any other Person for any reason whatsoever, (B) the existence of
a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided,
however,
that each Lender’s obligation to make Committed Loans pursuant to this
Section
2.04(c)
is subject to the conditions set forth in Section
4.03.
No such funding of risk participations shall relieve or otherwise impair the
obligation of the Company to repay Swing Line Loans, together with interest
as
provided herein.
(d) Repayment
of Participations.
(i) At
any time after any Lender has purchased and funded a risk participation in
a
Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender
its
Applicable Percentage thereof in the same funds as those received by the Swing
Line Lender.
46
(ii) If
any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section
10.05
(including pursuant to any settlement entered into by the Swing Line Lender
in
its discretion), each Lender shall pay to the Swing Line Lender its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate
per
annum equal to the applicable Overnight Rate. The Administrative Agent will
make
such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.
(e) Interest
for Account of Swing Line Lender.
The Swing Line Lender shall be responsible for invoicing the Company for
interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section
2.04
to refinance such Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the
account of the Swing Line Lender.
(f) Payments
Directly to Swing Line Lender.
The Company shall make all payments of principal and interest in respect of
the
Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments.
(a) Each
Borrower may, upon notice from the Company to the Administrative Agent, at
any
time or from time to time voluntarily prepay Committed Loans in whole or in
part
without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not later
than
11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars, (B) three Business Days (or
four
Business Days, in the case of Yen, or five Business Days, in the case of
prepayment of Loans denominated in Special Notice Currencies) prior to any
date
of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of (A) with
respect to Eurocurrency Rate Loans denominated in Sterling, £7,000,000 or a
whole multiple of £500,000 in excess thereof, (B) with respect to Eurocurrency
Rate Loans denominated in Euros, €10,000,000 or a whole multiple of €1,000,000
in excess thereof, (C) with respect to Eurocurrency Rate Loans denominated
in
Yen, ¥1,000,000,000 or a whole multiple of ¥100,000,000
in excess thereof, and (D) with respect to Eurocurrency Rate Loans denominated
in any other Alternative Currency, the Alternative Currency Equivalent of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof or, in each
case,
if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of
such
Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Company, the applicable Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by
all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section
3.05.
Each such prepayment shall be applied to the Committed Loans of the Lenders
in
accordance with their respective Applicable Percentages.
47
(b) The
Company may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and
(ii) any such prepayment shall be in a minimum principal amount of $100,000
(or,
if less, the entire principal amount thereof then outstanding). Each such notice
shall specify the date and amount of such prepayment. If such notice is given
by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.
(c) If
the Administrative Agent notifies the Company at any time that the Total
Outstandings at such time exceed an amount equal to 102% of the Aggregate
Commitments then in effect, then, within two Business Days after receipt of
such
notice, the Borrowers shall prepay Loans and/or the Company shall Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
such Outstanding Amount as of such date of payment to an amount not to exceed
100% of the Aggregate Commitments then in effect; provided,
however,
that the Company shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section
2.05(c)
unless after the prepayment in full of the Loans the Total Outstandings exceed
the Aggregate Commitments then in effect. The Administrative Agent may, at
any
time and from time to time after the initial deposit of such cash collateral,
request that additional cash collateral be provided in order to protect against
the results of further exchange rate fluctuations.
2.06 Termination
or Reduction
of Commitments. The
Company may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided
that (i) any such notice shall be received by the Administrative Agent not
later
than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount
of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Company shall not terminate or reduce the Aggregate Commitments if, after giving
effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of
such
excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments. The amount
of
any such Aggregate Commitment reduction shall not be applied to the Letter
of
Credit Sublimit unless otherwise specified by the Company. Any reduction of
the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
48
2.07 Repayment
of
Loans.
(a) Each
Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans made to such Borrower outstanding on such
date.
(b) The
Company
shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.
2.08 Interest.
(a) Subject
to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan
shall
bear interest on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the Eurocurrency Rate for such Interest
Period plus
the Applicable Rate plus
(in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State) the
Mandatory Cost; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a
rate per annum equal to the Base Rate; and (iii) each Swing Line Loan shall
bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate.
(b) (i) If
any amount
of principal of any Loan is not paid when due (without regard to any applicable
grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(ii) If
any amount (other than principal of any Loan) payable by any Borrower under
any
Loan Document is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, then upon
the request of the Required Lenders, such amount shall thereafter bear interest
at a fluctuating interest rate per annum at all times equal to the Default
Rate
to the fullest extent permitted by applicable Laws.
(iii) Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
(d) For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest
or
fee rate hereunder is calculated on the basis of a year (the “deemed
year”)
that contains fewer days than the actual number of days in the calendar year
of
calculation, such rate of interest or fee rate shall be expressed as a yearly
rate by multiplying such rate of interest or fee rate by the actual number
of
days in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest shall
not apply to any interest calculation hereunder and (iii) the rates of interest
stipulated herein are intended to be nominal rates and not effective rates
or
yields.
49
2.09 Fees.
In
addition to certain fees described in subsections (i) and (j) of Section
2.03:
(a) Ticking
Fee. If
the Effective Date shall occur after December 31, 2006, the Company shall pay
to
the Administrative Agent for the account of each Lender in accordance with
its
Applicable Percentage, a ticking fee, in Dollars, equal to (i) 0.05% per annum
times
the Aggregate Commitments for the period commencing January 1, 2007 through
the
earlier of (A) the Effective Date or (B) February 28, 2007, and (ii) 0.10%
per
annum times
the Aggregate Commitments for the period commencing March 1, 2007 through the
earlier of (A) the Effective Date or (B) May 7, 2007. The ticking fee shall
be
due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing January 1, 2007 and ending on the
earlier of (A) the Effective Date or (B) May 7, 2007. The ticking fee shall
be
calculated quarterly in arrears.
(b) Facility
Fee.
The Company shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage, a facility fee, in Dollars, equal
to the Applicable Rate times
the actual daily amount of the Aggregate Commitments (or, if the Aggregate
Commitments have terminated, on the Outstanding Amount of all Committed Loans,
Swing Line Loans and L/C Obligations), regardless of usage. The facility fee
shall accrue at all times during the Availability Period (and thereafter so
long
as any Committed Loans, Swing Line Loans or L/C Obligations remain outstanding),
including at any time during which one or more of the conditions in Article
IV
are not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the
first such date to occur after the Effective Date, and on the last day of the
Availability Period (and, if applicable, thereafter on demand). The facility
fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(c) Other
Fees.
The
Company shall pay to the Arrangers and the Administrative Agent for their own
respective accounts fees, in Dollars, in the amounts and at the times specified
in their respective Fee Letters. Such fees shall be fully earned when paid
and
shall not be refundable for any reason whatsoever.
2.10 Computation
of Interest and
Fees. All
computations of interest for Base Rate Loans when the Base Rate is determined
by
Bank of America’s “prime rate” shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations
of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid
than
if computed on the basis of a 365-day year) or, in the case of interest in
respect of Committed Loans denominated in Alternative Currencies as to which
market practice differs from the foregoing, in accordance with such market
practice. Interest shall accrue on each Loan for the day on which the Loan
is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section
2.12(a),
bear interest for one day. Each determination by the Administrative Agent of
an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
50
2.11 Evidence
of
Debt.
(a) The
Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrowers
and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the Obligations.
In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect
of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender to a Borrower
made through the Administrative Agent, such Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a Note, which shall evidence
such Lender’s Loans to such Borrower in addition to such accounts or records.
Each Lender may attach schedules to a Note and endorse thereon the date, Type
(if applicable), amount, currency and maturity of its Loans and payments with
respect thereto.
(b) In
addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any
conflict between the accounts and records maintained by the Administrative
Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence
of
manifest error.
2.12 Payments
Generally;
Administrative Agent’s Clawback.
(a) General.
All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein and except with respect to principal of
and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrowers hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than
2:00 p.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without
limiting the generality of the foregoing, the Administrative Agent may require
that any payments due under this Agreement be made in the United States. If,
for
any reason, any Borrower is prohibited by any Law from making any required
payment hereunder in an Alternative Currency, such Borrower shall make such
payment in Dollars in the Dollar Equivalent of the Alternative Currency payment
amount. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent (i) after 2:00 p.m.,
in the case of payments in Dollars, or (ii) after the Applicable Time specified
by the Administrative Agent in the case of payments in an Alternative Currency,
shall in each case be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to
be
made by any Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may
be.
51
(b) (i) Funding
by Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Committed Borrowing of Eurocurrency Rate Loans
(or,
in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon
on the date of such Committed Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section
2.02
(or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender
has made such share available in accordance with and at the time required by
Section
2.02)
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact
made
its share of the applicable Committed Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree
to
pay to the Administrative Agent forthwith on demand such corresponding amount
in
Same Day Funds with interest thereon, for each day from and including the date
such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be
made
by such Lender, the Overnight Rate,
plus any administrative, processing or similar fees customarily charged by
the
Administrative Agent in connection with the foregoing,
and (B) in the case of a payment to be made by such Borrower, the interest
rate
applicable to Base Rate Loans. If such Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period,
the
Administrative Agent shall promptly remit to such Borrower the amount of such
interest paid by such Borrower for such period. If such Lender pays its share
of
the applicable Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Committed Loan included in such Committed
Borrowing. Any payment by such Borrower shall be without prejudice to any claim
such Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments
by Borrowers; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Borrower
prior
to the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the applicable L/C Issuer hereunder that such Borrower
will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may,
in
reliance upon such assumption, distribute to the Lenders or such L/C Issuer,
as
the case may be, the amount due. In such event, if such Borrower has not in
fact
made such payment, then each of the Lenders or the applicable L/C Issuer, as
the
case may be, severally agrees to repay to the Administrative Agent forthwith
on
demand the amount so distributed to such Lender or such L/C Issuer, in Same
Day
Funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.
52
A
notice of the Administrative Agent to
any Lender or Borrower with respect to any amount owing under this subsection
(b) shall be conclusive, absent manifest error.
(c) Failure
to Satisfy Conditions Precedent.
If any Lender makes available to the Administrative Agent funds for any Loan
to
be made by such Lender to any Borrower as provided in the foregoing provisions
of this Article
II,
and such funds are not made available to such Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in
Article
IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations
of Lenders Several.
The obligations of the Lenders hereunder to make Committed Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section
10.04(c)
are several and not joint. The failure of any Lender to make any Committed
Loan,
to fund any such participation or to make any payment under Section
10.04(c)
on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed Loan,
to purchase its participation or to make its payment under Section
10.04(c).
(e) Funding
Source.
Nothing herein shall be deemed to obligate any Lender to obtain the funds for
any Loan in any particular place or manner or to constitute a representation
by
any Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
2.13 Sharing
of Payments
by Lenders. If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any
of
the Committed Loans made by it, or the participations in L/C Obligations or
in
Swing Line Loans held by it resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Committed Loans or participations
and
accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of
all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Committed Loans and other amounts owing them, provided
that:
(i)
if
any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and
53
(ii) the
provisions of this Section shall not be construed to apply to (x) any payment
made by a Borrower pursuant to and in accordance with the express terms of
this
Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Committed Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the Company or any Subsidiary thereof (as to which
the provisions of this Section shall apply).
Each
Loan Party consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender
were
a direct creditor of such Loan Party in the amount of such
participation.
2.14 Designated
Borrowers.
(a)
|
Designated
Borrower Joinder Agreement; Designated Borrower Notice.
|
(i) The
Company may at any time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent, designate any Eligible Foreign Subsidiary
of the Company (an “Applicant
Borrower”)
as a Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to
each
Lender) a duly executed agreement in substantially the form of Exhibit
H
(a “Designated
Borrower Joinder Agreement”);
provided that there shall be no more than ten Designated Borrowers at any time.
Within ten Business Days of receipt of such Designated Borrower Joinder
Agreement, (A) each Lender that is unable to lend to such Designated Borrower
(as to such Designated Borrower, each a “Non-Participating
Lender”)
shall provide written notice of such fact to the Administrative Agent, and
(B)
each Lender that is able to lend to such Designated Borrower (as to such
Designated Borrower, each a “Participating
Lender”)
shall provide written notice of such fact to the Administrative
Agent.
(ii) The
parties hereto acknowledge and agree that prior to any Applicant Borrower
becoming entitled to utilize the credit facilities provided for herein, the
Administrative Agent and the Participating Lenders shall have received such
supporting resolutions, incumbency certificates, opinions of counsel and other
documents or information, in form, content and scope reasonably satisfactory
to
the Administrative Agent, as may be required by the Administrative Agent or
the
Required Lenders in their reasonable discretion, and Notes signed by such
Applicant Borrower to the extent any Participating Lenders so require. Promptly
following receipt of all such requested resolutions, incumbency certificates,
opinions of counsel and other documents or information, the Administrative
Agent
shall send a notice in substantially the form of Exhibit
I
(a “Designated
Borrower Notice”)
to the Company and each Participating Lender specifying the effective date
upon
which the Applicant Borrower shall constitute a Designated Borrower for purposes
hereof, whereupon each Participating Lender agrees to permit such Designated
Borrower to receive Loans hereunder, on the terms and conditions set forth
herein, and each Participating Lender and the Administrative Agent agree that
such Designated Borrower otherwise shall be a Borrower for all purposes of
this
Agreement. Notwithstanding
the foregoing, in the event that any Participating Lender is entitled to
indemnification for Indemnified Taxes pursuant to Section
3.01,
the Company may, upon notice to such Participating Lender and the Administrative
Agent, exclude such Participating Lender from the group of Participating Lenders
entitled to make Committed Loans to such Designated Borrower (the “Designated
Lenders”).
54
(iii) No
Committed Loan Notice or Letter of Credit Application may be submitted by or
on
behalf of such Designated Borrower until the date five Business Days after
such
effective date.
(iv) In
the event any Lender is a Non-Participating Lender or any Participating Lender
is not a Designated Lender, (A) no such Non-Participating Lender or
Participating Lender that is not a Designated Lender shall be required to make
Committed Loans to such Designated Borrower, (B) there shall be no reduction
in
the Aggregate Commitments, (C) Committed Loans shall be made available to such
Designated Borrower only by the Designated Lenders and the aggregate Outstanding
Amount of all Committed Loans made available to such Designated Borrower by
the
Designated Lenders shall not exceed the Designated Borrower Sublimit for such
Designated Borrower, (D) no Designated Lender shall be required to increase
its
Commitment,
and (E) Committed Loans, other than to such Designated Borrower, shall be made
by all Lenders ratably based on their available Commitments.
(b) The
Obligations of all Designated Borrowers shall be several in nature.
(c) Each
Eligible Foreign Subsidiary of the Company that is or becomes a “Designated
Borrower”
pursuant to this Section
2.14
hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving
and receipt of notices, (ii) the execution and delivery of all documents,
instruments and certificates contemplated herein and all modifications hereto,
and (iii) the receipt of the proceeds of any Loans made by the Lenders, to
any
such Designated Borrower hereunder. Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall
be
valid and effective if given or taken only by the Company, whether or not any
such other Borrower joins therein. Any notice, demand, consent, acknowledgement,
direction, certification or other communication delivered to the Company in
accordance with the terms of this Agreement shall be deemed to have been
delivered to each Designated Borrower.
(d)
The
Company may from time to time, upon not less than 15 Business Days’ notice from
the Company to the Administrative Agent (or such shorter period as may be agreed
by the Administrative Agent in its reasonable discretion), terminate a
Designated Borrower’s status as such; provided
that there are no outstanding Loans payable by such Designated Borrower, or
other amounts payable by such Designated Borrower on account of any Loans made
to it, as of the effective date of such termination. The Administrative Agent
will promptly notify the Lenders of any such termination of a Designated
Borrower’s status.
55
2.15 Extension
of Maturity
Date.
(a) Requests
for Extension.
The Company may, by notice to the Administrative Agent (who shall promptly
notify the Lenders) not earlier than 60 days and not later than 35 days prior
to
(i) the first anniversary of the Closing Date (the “First
Extension Date”)
and (ii) the second anniversary of the Closing Date (the “Second
Extension Date”
and, with the First Extension Date, each an “Extension
Date”),
request that each Lender extend such Lender’s Maturity Date for an additional
365 days from the Maturity Date then in effect hereunder (the“Existing
Maturity Date”).
(b) Lender
Elections to Extend.
Each Lender, acting in its sole and individual discretion, shall, by notice
to
the Administrative Agent given not earlier than 40 days prior to the applicable
Extension Date and not later than the date (the “Notice
Date”)
that is 20 days prior to the applicable Extension Date, advise the
Administrative Agent whether or not such Lender agrees to such extension. Each
Lender that determines not to so extend its Maturity Date (a “Non-Extending
Lender”)
shall notify the Administrative Agent of such fact promptly after such
determination (but in any event no later than the Notice Date), and any Lender
that does not so advise the Administrative Agent on or before the Notice Date
shall be deemed to be a Non-Extending Lender. The election of any Lender to
agree to such extension shall not obligate any other Lender to so
agree.
(c) Notification
by
Administrative Agent.
The Administrative Agent shall notify the Company of each Lender’s determination
under this Section no later than the date 15 days prior to the applicable
Extension Date (or, if such date is not a Business Day, on the next preceding
Business Day).
(d) Additional
Commitment Lenders.
The Company shall have the right on or before the applicable Extension Date
to
reduce ratably the Commitments of any Non-Extending Lenders, and add as
“Lenders”
under this Agreement, one or more Eligible Assignees (each, an “Additional
Commitment Lender”)
as provided in Section
10.13,
each of which Additional Commitment Lenders shall have entered into an
Assignment and Assumption pursuant to which such Additional Commitment Lender
shall, effective as of the applicable Extension Date, undertake a Commitment
(and, if any such Additional Commitment Lender is already a Lender, its
Commitment shall be in addition to such Lender’s Commitment hereunder on such
date).
(e) Minimum
Extension Requirement.
If (and only if) the total of the Commitments of the Lenders that have agreed
so
to extend their Maturity Date (each, an “Extending
Lender”)
and the additional Commitments of the Additional Commitment Lenders shall be
more than 50% of the aggregate amount of the Commitments in effect immediately
prior to the applicable Extension Date, then, effective as of such Extension
Date, the Maturity Date of each Extending Lender and of each Additional
Commitment Lender shall be extended to the date falling 365 days after the
Existing Maturity Date (except that, if such date is not a Business Day, such
Maturity Date as so extended shall be the next preceding Business Day) and
each
Additional Commitment Lender shall thereupon become a “Lender”
for all purposes of this Agreement; provided,
however,
that there shall be no change in the Maturity Date of any Non-Extending
Lender.
56
(f) Conditions
to Effectiveness of Extensions.
Notwithstanding the foregoing, the extension of the Maturity Date pursuant
to
this Section shall not be effective with respect to any Lender
unless:
(i) no
Default exists on the date of such extension and after giving effect
thereto;
(ii) the
representations
and warranties contained in Article
V
and the other Loan Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section
2.15,
the representations and warranties contained in subsections (a) and (b) of
Section
5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section
6.01;
and
(iii) on
the Maturity Date of each Non-Extending Lender, the Borrowers shall prepay
Committed Loans outstanding on such date (and pay any additional amounts
required pursuant to Section
3.05)
to the extent necessary to repay, nonratably, the Committed Loans of all
Non-Extending Lenders and the Applicable Percentages of the remaining Lenders
shall be revised effective as of such date.
(g) Conflicting
Provisions.
This Section shall supersede any provisions in Section
2.13
or 10.01
to the contrary.
2.16 Increase
in
Commitments.
(a) Request
for Increase.
Provided no Default exists, upon notice to the Administrative Agent (which
shall
promptly notify the Lenders), the Company may from time to time request an
increase in the Aggregate Commitments by an amount (for all such requests)
not
exceeding $500,000,000; provided
that any such request for an increase shall be in a minimum amount of
$10,000,000. No Lender shall be required to increase its Commitment as a result
of any such request and only the Lenders who agree to increase their respective
Commitments shall be required to consent to such request. At the time of sending
such notice, the Company (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery
of
such notice to the Lenders).
(b) Lender
Elections to Increase.
Each Lender shall notify the Administrative Agent within such time period
whether or not it agrees to increase its Commitment and, if so, whether by
an
amount equal to, greater than, or less than its Applicable Percentage of such
requested increase. Any Lender not responding within such time period shall
be
deemed to have declined to increase its Commitment.
(c) Notification
by
Administrative Agent; Additional Lenders.
The Administrative Agent shall notify the Company and each Lender of the
Lenders’ responses to each request made hereunder. To achieve the full amount of
a requested increase and subject to the approval of the Administrative Agent,
the applicable L/C Issuer and the Swing Line Lender (which approvals shall
not
be unreasonably withheld), the Company may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent.
57
(d) Effective
Date and Allocations.
If the Aggregate Commitments are increased in accordance with this Section,
the
Administrative Agent and the Company shall determine the effective date (the
“Increase
Effective Date”)
and the final allocation of such increase. The Administrative Agent shall
promptly notify the Company and the Lenders of the final allocation of such
increase and the Increase Effective Date.
(e) Conditions
to Effectiveness of Increase.
As a condition precedent to such increase, the Company shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions adopted
by such Loan Party approving or consenting to such increase, and (ii) in the
case of the Company, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article
V
and the other Loan Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section
2.16,
the representations and warranties contained in subsections (a) and (b) of
Section
5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section
6.01,
and (B) no Default exists. The Borrowers shall prepay any Committed Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section
3.05)
to the extent necessary to keep the outstanding Committed Loans ratable with
any
revised Applicable Percentages arising from any nonratable increase in the
Commitments under this Section.
(f) Conflicting
Provisions.
This Section shall supersede any provisions in Section
2.13
or 10.01
to the contrary.
2.17 Additional
Subsidiary Guarantors.The
Company may at any time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent, designate any Domestic Subsidiary of the
Company as a Subsidiary Guarantor to guaranty the Obligations hereunder by
delivering to the Administrative Agent (which shall promptly deliver
counterparts thereof to each Lender) a duly executed Subsidiary Guaranty in
substantially the form of Exhibit
G.
The parties hereto acknowledge and agree that prior to any Domestic Subsidiary
becoming a Subsidiary Guarantor, the Administrative Agent and the Lenders shall
have received such supporting resolutions, incumbency certificates, opinions
of
counsel and other documents or information, in form, content and scope
reasonably satisfactory to the Administrative Agent, as may be required by
the
Administrative Agent or the Required Lenders in their reasonable
discretion.
58
ARTICLE
III.
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments
Free of Taxes.
Any and all payments by or on account of any obligation of the respective
Borrowers hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or
Other
Taxes, provided
that if the applicable Borrower shall be required by applicable law to deduct
any Indemnified Taxes (including any Other Taxes) from such payments, then
(i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or applicable L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Payment
of Other Taxes by the Borrowers.
Without limiting the provisions of subsection (a) above, each Borrower shall
timely pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification
by the Borrowers.
Each Borrower shall indemnify the Administrative Agent, each Lender and each
L/C
Issuer, within ten days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or such L/C Issuer, as the case
may be, and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as
to
the amount of such payment or liability delivered to a Borrower by a Lender
or
an L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or an L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence
of Payments.
As soon as practicable after any payment of Indemnified Taxes or Other Taxes
by
any Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Status
of Lenders.
Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party
with respect to payments hereunder or under any other Loan Document shall
deliver to the Company (with a copy to the Administrative Agent), at the time
or
times prescribed by applicable law or reasonably requested by the Company or
the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit payment hereunder or under any
other
Loan Document to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Company or the Administrative
Agent as will enable the Company or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.
59
Without
limiting the generality
of the foregoing, in the event that a Borrower is resident for tax purposes
in
the United States, any Foreign Lender shall deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of
the
Company or the Administrative Agent or when a lapse in time or a change in
circumstance renders the prior certificates obsolete), but only if such Foreign
Lender is legally entitled to do so, whichever of the following is
applicable:
(i) duly
completed copies of Internal Revenue Service Form X-0XXX, X-0XXX or W-8IMY)
(or
any successor or other applicable form prescribed by the IRS certifying as
to
such Lender’s entitlement to a complete exemption from United States withholding
tax),
(ii) in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “ten percent shareholder” of the
applicable Borrower within the meaning of section 881(c)(3)(B) of the Code,
or
(C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the
Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN,
or
(iii) any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law
to
permit the Company to determine the withholding or deduction required to be
made.
Without
limiting the obligations of the
Lenders set forth above regarding delivery of certain forms and documents to
establish each Lender’s status for U.S. withholding tax purposes, each Lender
agrees promptly to deliver to the Administrative Agent or the Company, as the
Administrative Agent or the Company shall reasonably request, on or prior to
the
Closing Date, and in a timely fashion thereafter, such other documents and
forms
required by any relevant taxing authorities under the Laws of any other
jurisdiction, duly executed and completed by such Lender, as are required under
such Laws to confirm such Lender’s entitlement to any available exemption from,
or reduction of, applicable withholding taxes in respect of all payments to
be
made to such Lender outside of the U.S. by the Borrowers pursuant to this
Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in such other jurisdiction. Each Lender shall promptly (i) notify
the
Administrative Agent of any change in circumstances which would modify or render
invalid any such claimed exemption or reduction, and (ii) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation
of
its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes
from
amounts payable to such Lender.
60
(f) Treatment
of Certain Refunds.
If the Administrative Agent, any Lender or any L/C Issuer determines, in its
reasonable discretion, that it has received a refund of any Taxes or Other
Taxes
as to which it has been indemnified by any Borrower or with respect to which
any
Borrower has paid additional amounts pursuant to this Section, it shall pay
to
such Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under
this
Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all reasonable out-of-pocket expenses of the Administrative Agent, such
Lender or such L/C Issuer, as the case may be, and without interest (other
than
any interest paid by the relevant Governmental Authority with respect to such
refund), provided
that each Borrower, upon the request of the Administrative Agent, such Lender
or
such L/C Issuer, agrees to repay the amount paid over to such Borrower (plus
any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the
event the Administrative Agent, such Lender or such L/C Issuer is required
to
repay such refund to such Governmental Authority. This subsection shall not
be
construed to require the Administrative Agent, any Lender or any L/C Issuer
to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to any Borrower or any other Person.
3.02 Illegality.
If
any Law has made it unlawful, or any Governmental Authority has asserted that
it
is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon
the
Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank
market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans
to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to
such
determination no longer exist. Upon receipt of such notice, the Borrowers shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable and such Loans are denominated in Dollars, convert all such
Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans.
Upon
any such prepayment or conversion, the Borrowers shall also pay accrued interest
on the amount so prepaid or converted.
3.03 Inability
to
Determine Rates. If
the Required Lenders determine that for any reason in connection with any
request for a Eurocurrency Rate Loan or a conversion to or continuation thereof
that (a) deposits (whether in Dollars or an Alternative Currency) are not being
offered to banks in the applicable offshore interbank market for such currency
for the applicable amount and Interest Period of such Eurocurrency Rate Loan,
(b) 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 (whether denominated in Dollars or an Alternative Currency), or (c)
the Eurocurrency Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan does not adequately and fairly reflect the
cost
to such Lenders of funding such Eurocurrency Rate Loan, the Administrative
Agent
will promptly so notify the Company and each Lender. Thereafter, the obligation
of the Lenders to make or maintain Eurocurrency Rate Loans in the affected
currency or currencies shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt
of
such notice, the Company may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in the affected
currency or currencies or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.
61
3.04 Increased
Costs; Reserves on Eurocurrency Rate Loans.
(a) Increased
Costs Generally.
If any Change in Law, after the date on which a Lender or L/C Issuer becomes
a
Lender or L/C Issuer hereunder, shall:
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or
for
the account of, or credit extended or participated in by, any Lender (except
(A)
any reserve requirement contemplated by Section
3.04(e)
and (B) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in the Mandatory Cost, other
than as set forth below) or any L/C Issuer;
(ii) subject
any Lender or any L/C Issuer to any tax of any kind whatsoever with respect
to
this Agreement, any Letter of Credit any participation in a Letter of Credit
or
any Eurocurrency Rate Loan made by it, or change the basis of taxation of
payments to such Lender or such L/C Issuer in respect thereof except for
Indemnified Taxes or Other Taxes covered by Section
3.01
and the imposition of, or any change in the rate of, any Excluded Tax payable
by
such Lender or such L/C Issuer;
(iii) result
in the failure of the Mandatory Cost, as calculated hereunder, to represent
the
cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation
to its making, funding or maintaining Eurocurrency Rate Loans; or
(iv) impose
on any
Lender or any L/C Issuer or the London interbank market any other material
condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans
made by such Lender or any Letter of Credit or participation
therein;
and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurocurrency Rate Loan (or of maintaining its
obligation to make any such Loan), or to materially increase the cost to such
Lender or such L/C Issuer of participating in, issuing or maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to issue any
Letter of Credit), or to materially reduce the amount of any sum received or
receivable by such Lender or such L/C Issuer hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender or such L/C
Issuer, the Company will pay (or cause the applicable Designated Borrower to
pay) to such Lender or such L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or such L/C Issuer, as the
case
may be, for such additional costs incurred or reduction suffered.
Notwithstanding anything to the contrary contained herein, the Company shall
have no obligation under this Section
3.04(a)
with respect to any additional cost or reduction suffered in connection with
any
Taxes (which shall be governed exclusively by the provisions of Section
3.01).
62
(b) Capital
Requirements.
If any Lender or any L/C Issuer determines that any Change in Law, after the
date on which a Lender or L/C Issuer becomes a Lender or L/C Issuer hereunder,
affecting such Lender or such L/C Issuer or any Lending Office of such Lender
or
such Lender’s or such L/C Issuer’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such
L/C Issuer’s holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in Letters
of
Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer,
to a level below that which such Lender or such L/C Issuer or such Lender’s or
such L/C Issuer’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or such L/C Issuer’s policies and the
policies of such Lender’s or such L/C Issuer’s holding company with respect to
capital adequacy), then from time to time the Company will pay (or cause the
applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as
the
case may be, such additional amount or amounts as will compensate such Lender
or
such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any
such reduction suffered.
(c) Certificates
for Reimbursement.
A certificate of a Lender or an L/C Issuer setting forth the amount or amounts
necessary to compensate such Lender or such L/C Issuer or its holding company,
as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error. The Company
shall pay (or cause the applicable Designated Borrower to pay) such Lender
or
such L/C Issuer, as the case may be, the amount shown as due on any such
certificate within ten days after receipt thereof.
(d) Delay
in Requests.
Failure or delay on the part of any Lender or any L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall not
constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such
compensation, provided
that no Borrower shall be required to compensate a Lender or an L/C Issuer
pursuant to the foregoing provisions of this Section for any increased costs
incurred or reductions suffered more than 90 days prior to the date that such
Lender or such L/C Issuer, as the case may be, notifies the Company of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or such L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions
is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof).
(e) Additional
Reserve Requirements.
The Company shall pay (or cause the applicable Designated Borrower to pay)
to
each Lender, without duplication of any Mandatory Cost, (i) as long as such
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency
liabilities”),
additional interest on the unpaid principal amount of each Eurocurrency Rate
Loan equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be
conclusive), and (ii) as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement of any other central
banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurocurrency Rate Loans, such
additional costs (expressed as a percentage per annum and rounded upwards,
if
necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in each
case shall be due and payable on each date on which interest is payable on
such
Loan; provided
the Company shall have received at least ten days’ prior notice (with a copy to
the Administrative Agent) of such additional interest or costs from such Lender.
If a Lender fails to give notice ten days prior to the relevant Interest Payment
Date, such additional interest or costs shall be due and payable ten days from
receipt of such notice.
63
3.05 Compensation
for Losses.
Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Company shall promptly compensate (or cause the applicable Designated
Borrower to compensate) such Lender for and hold such Lender harmless from
any
reasonable and invoiced loss, cost or expense incurred by it as a result
of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by any Borrower (for a reason other than the failure of such Lender
to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Company or the applicable
Designated Borrower;
(c) any
failure by any Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency
on
its scheduled due date or any payment thereof in a different currency other
than
at the request of the Administrative Agent, any Lender or any L/C Issuer;
or
(d) any
assignment of a Eurocurrency Rate Loan on a day other than the last day of
the
Interest Period therefor as a result of a request by the Company pursuant to
Section 10.13;
including
any foreign exchange losses and any loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain such Loan, from fees payable
to terminate the deposits from which such funds were obtained or from the
performance of any foreign exchange contract. The Company shall also pay (or
cause the applicable Designated Borrower to pay) any customary administrative
fees charged by such Lender in connection with the foregoing.
For
purposes of calculating amounts payable by the Company (or the applicable
Designated Borrower) to the Lenders under this Section 3.05, each Lender
shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in
the
offshore interbank market for such currency for a comparable amount and for
a
comparable period, whether or not such Eurocurrency Rate Loan was in fact so
funded.
64
3.06 Mitigation
Obligations; Replacement of Lenders.
(a) Designation
of a Different Lending Office.
If any Lender requests compensation under Section
3.04,
or any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01,
or if any Lender gives a notice pursuant to Section
3.02,
then such Lender shall use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section
3.01
or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section
3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Company hereby agrees to pay (or to cause the applicable Designated
Borrower to pay) all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) Replacement
of Lenders.
If any Lender requests compensation under Section
3.04
or delivers a notice under Section
3.02,
or if any Borrower is required to pay any additional amount to any Lender or
any
Governmental Authority for the account of any Lender pursuant to Section
3.01,
the Company may replace such Lender in accordance with Section
10.13.
3.07 Survival.
All
of the Borrowers’ obligations under this Article
III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE
IV.
CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions
of
Closing. The
obligation of each L/C Issuer and each Lender to enter into this Agreement
is
subject to the satisfaction of the following conditions precedent:
The
Administrative
Agent’s receipt of the following, each of which shall be originals or telecopies
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the Company, each dated the Closing Date
(or, in the case of certificates of governmental officials, a recent date before
the Closing Date) and each in form and substance reasonably satisfactory to
the
Administrative Agent and each of the Lenders:
(a) executed
counterparts of this Agreement and the Company Guaranty sufficient in number
for
distribution to the Administrative Agent, each Lender and the
Company;
(b) such
certificates
of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of the Company as the Administrative Agent
may reasonably require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which the Company
is a party;
65
(c) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that the Company is duly organized or formed, and that the Company
is validly existing, in good standing and qualified to engage in business in
Delaware;
(d) a
favorable opinion of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to
the
Company, addressed to the Administrative Agent and each Lender, as to such
matters concerning the Company and the Loan Documents as the Administrative
Agent or the Required Lenders may reasonably request;
(e) a
certificate signed by a Responsible Officer of the Company certifying that
there
has been no event or circumstance since December 31, 2005 that has had or could
be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole;
(f) a
Note executed by the Company in favor of each Lender requesting a
Note;
(g) the
terms and conditions of each material aspect of the Merger shall be satisfactory
to the Lenders, it being acknowledged that the terms and conditions set forth
in
the Merger Agreement in the form delivered to the Administrative Agent and
the
Lenders prior to the execution of this Agreement are satisfactory in all
respects; and
(h) The
representations and warranties of the Company contained in Article
V
or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as of the
Closing Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date.
Without
limiting
the generality of the provisions of Section
9.04,
for purposes of determining compliance with the conditions specified in this
Section
4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 Conditions
to
Effective Date. The
effectiveness of this Agreement is subject to satisfaction of the following
conditions precedent:
(a) The
conditions set forth in Section
4.01
shall have been satisfied as of the Closing Date.
(b) The
Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of Xxxxxx, each
dated
the Effective Date (or, in the case of certificates of governmental officials,
a
recent date before the Effective Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and each of the Lenders:
(i) executed
counterparts of the Subsidiary Guaranty, sufficient in number for distribution
to the Administrative Agent, each Lender and the Company;
66
(ii) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of Xxxxxx as the Administrative
Agent
may reasonably require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with the Subsidiary Guaranty and the other Loan Documents to which
Xxxxxx is a party;
(iii) such
documents and certifications as the Administrative Agent may reasonably require
to evidence that Xxxxxx is duly organized or formed, and that Xxxxxx is validly
existing, in good standing and qualified to engage in business in
Delaware;
(iv) a
favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to
Xxxxxx, addressed to the Administrative Agent and each Lender, as to such
matters concerning Xxxxxx and the Loan Documents as the Administrative Agent
or
the Required Lenders may reasonably request;
(v) a
certificate signed by a Responsible Officer of the Company certifying that
there
has been no event or circumstance since December 31, 2005 that has had or could
be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect (as defined in the Merger Agreement) on the Company
and
its Subsidiaries, taken as a whole, after giving effect to the Merger;
(vi) The
representations and warranties of (A) the Company contained in Article
V
(excluding Section
5.05(c)),
after giving effect to the supplemental Schedules with respect to Xxxxxx and
its
Subsidiaries to be provided pursuant to Section
4.02(b)(x),
and (B) the Company and Xxxxxx contained in each other Loan Document or which
are contained in the certificate delivered pursuant to Section
4.02(b)(v)
shall be true and correct on and as of the Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date;
(vii) evidence
that the Merger has been or, concurrently with the Effective Date, is being
consummated in accordance with the terms of the Merger Agreement, as modified,
amended or waived as of the Effective Date; provided,
that, since the Closing Date, there shall not have been any modification,
amendment or waiver of the Merger Agreement that is materially adverse to the
interests of the Lenders without consent of the Required Lenders;
(viii) evidence
that the Existing Credit Agreements have been or, concurrently with the
Effective Date, are being terminated, all obligations thereunder have been
paid
in full and all Liens, if any, securing obligations under the Existing Credit
Agreements have been or, concurrently with the Effective Date, are being
released;
(ix) a
duly completed Compliance Certificate as of the Effective Date, signed by a
Responsible Officer of the Company; and
(x) (A)
updated Schedules
2.03,
5.06,
5.08
and 7.04,
if necessary, to reflect information with respect to Xxxxxx and its Subsidiaries
and (B) Schedules
7.01(c)
and 7.02(c)
accompanied by a certificate signed by a Responsible Officer of the Company
certifying that such Schedules are in compliance with Sections
7.01
and 7.02.
67
(c) Any
fees required to be paid on or before the Effective Date shall have been
paid.
(d) Unless
waived by the Administrative Agent, the Company shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly
to
such counsel if requested by the Administrative Agent) to the extent invoiced
prior to or on the Effective Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such
fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude
a
final settling of accounts between the Company and the Administrative
Agent).
(e) The
Effective Date shall have occurred on or before May 7, 2007.
4.03 Conditions
to all
Credit Extensions. The
obligation of each Lender to honor any Request for Credit Extension (other
than
a Committed Loan Notice requesting only a conversion of Committed Loans to
the
other Type, or a continuation of Eurocurrency Rate Loans) is subject to the
following conditions precedent:
(a) The
representations and warranties of (i) the Borrowers contained in Article
V
(excluding, however, Section
5.05(c))
and (ii) each Loan Party contained in each other Loan Document shall be true
and
correct on and as of the date of such Credit Extension, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date, and except
that for purposes of this Section
4.03,
the representations and warranties contained in subsections (a) and (b) of
Section
5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section
6.01.
(b) No
Default shall exist, or would result from such proposed Credit Extension or
the
application of the proceeds thereof.
(c) The
Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing
Line Lender shall have received a Request for Credit Extension in accordance
with the requirements hereof.
(d) If
the applicable Borrower is a Designated Borrower, then the conditions of
Section
2.14
to the designation of such Borrower as a Designated Borrower shall have been
met
to the reasonable satisfaction of the Administrative Agent.
(e) In
the case of a Credit Extension to be denominated in an Alternative Currency,
there shall not have occurred any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which in the reasonable opinion of the Administrative Agent, the Required
Lenders (in the case of any Loans to be denominated in an Alternative Currency)
or the applicable L/C Issuer (in the case of any Letter of Credit to be
denominated in an Alternative Currency) would make it impracticable for such
Credit Extension to be denominated in the relevant Alternative
Currency.
68
Each
Request
for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of
Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a
representation and warranty that the conditions specified in Sections
4.03(a)
and (b)
have been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE
V.
REPRESENTATIONS
AND WARRANTIES
Each
Borrower
represents and warrants to the Administrative Agent and the Lenders as of the
Closing Date that:
5.01 Existence,
Qualification
and Power. Each
Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly
existing and, as applicable, in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) in the case
of
each Loan Party only, execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is licensed
and, as applicable, in good standing under the Laws of each jurisdiction where
its ownership, lease or operation of properties or the conduct of its business
requires such qualification or license, except in each case referred to in
clause (a), (b)(i), or (c), to the extent that failure to do so could not,
in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
5.02 Authorization;
No
Contravention. The
execution, delivery and performance by each Loan Party of each Loan Document
to
which such Person is party, have been duly authorized by all necessary corporate
or other organizational action, and do not and will not (a) contravene the
terms
of any of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require
any payment to be made under (i) any Contractual Obligation to which such Person
is a party or affecting such Person or the properties of such Person or any
of
its Subsidiaries or (ii) any material order, injunction, writ or decree of
any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law in any material respect; except
in
each case referred to in clause (b) or (c), to the extent that such
contravention could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.03 Governmental
Authorization; Other Consents. No
approval, consent, exemption, authorization, or other material action by, or
material notice to, or material filing with (other than any SEC filing by the
Company in compliance with the SEC disclosure obligations), any Governmental
Authority or any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party
of
this Agreement or any other Loan Document.
5.04 Binding
Effect. This
Agreement has been, and each other Loan Document, when delivered hereunder,
will
have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered
will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party that is party thereto in accordance with
its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
69
5.05 Financial
Statements; No
Material Adverse Effect; No Internal Control Event.
(a) The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (ii) fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby and the Audited
Financial Statements show, reflect or describe all material indebtedness and
other material contingent liabilities of the Company and its Subsidiaries as
of
the date thereof, including liabilities for taxes, material long term
commitments and Indebtedness other than those that are (A) not material to
the
Company and its Subsidiaries as a whole or (B) are reflected in the Company’s
most recent report on Form 10-K and any subsequent reports on Form 10-Q or
Form
8-K filed with the SEC.
(b) The
unaudited consolidated balance sheet of the Company and its Subsidiaries dated
June 30, 2006 and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and (ii)
fairly present in all material respects the financial condition of the Company
and its Subsidiaries as of the date thereof and their results of operations
for
the period covered thereby, subject, in the case of clauses (i) and (ii), to
the
absence of footnotes and to normal year-end audit adjustments.
(c) Since
the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or would
reasonably be expected to have a Material Adverse Effect.
5.06 Litigation.
Except
as specifically disclosed in Schedule
5.06,
there are no actions, suits, proceedings, claims or disputes pending or, to
the
knowledge of the Company, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that either
individually or in the aggregate, if determined adversely, would reasonably
be
expected to have a Material Adverse Effect.
5.07 Ownership
of Property; Liens.
Each
of the Company and each Subsidiary has good record and marketable title in
fee
simple to, or valid leasehold interests in, all real property necessary or
used
in the ordinary conduct of its business, except for such defects in title as
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
The property of the Company and its Subsidiaries is subject to no Lien, other
than Liens permitted by Section
7.01.
70
5.08 Environmental
Compliance. Except
as specifically disclosed in Schedule
5.08,
the Company and its Subsidiaries are in compliance with all applicable
Environmental Laws, except for such non-compliance as would not, individually
or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Except as specifically disclosed in Schedule
5.08,
there are no pending claims alleging potential liability under or responsibility
for violation of any Environmental Law against or with respect to the Company
and its Subsidiaries or their respective businesses, operations and properties,
except such pending claims as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.09 Insurance.
Except
to the extent that the failure to do so could not reasonably be expected to
have
a Material Adverse Effect, the properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Company, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or the applicable
Subsidiary operates.
5.10 Taxes.
Except
to the extent that the failure to do so could not reasonably be expected to
have
a Material Adverse Effect, the Company and its Subsidiaries have filed all
Federal, state and other material tax returns and reports required to be filed,
and have paid all Federal, state and other material taxes, assessments, fees
and
other governmental charges levied or imposed upon them or their properties,
income or assets which are due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and
for
which adequate reserves have been provided in accordance with GAAP.
5.11 ERISA
Compliance.
(a) Except
as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect, (i) each Plan is
in
compliance in all material respects with the applicable provisions of ERISA,
the
Code and other Federal or state Laws; and (ii) each Plan that is intended to
qualify under Section 401(a) of the Code has received a favorable determination
letter from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the knowledge of the Company,
nothing has occurred which would prevent, or cause the loss of, such
qualification.
(b) Except
as, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, the Company and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan
and no lien in favor of the PBGC or a Plan has arisen.
(c) There
are no pending or, to the knowledge of the Company, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any
Plan
that could reasonably be expected to have a Material Adverse Effect. There
has
been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted, or to the knowledge of the
Company, could reasonably be expected to result in a Material Adverse
Effect.
71
(d) Except
as, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
5.12 Margin
Regulations; Investment Company Act.
(a) No
part of the proceeds of any Loan will be used for any purpose that violates
the
provisions of Regulation U or any of the other Regulations of the FRB. If
requested by any Lender or the Administrative Agent, the Company will furnish
to
the Administrative Agent and each Lender a statement to the forgoing effect
in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
(b) None
of the Company, any Person Controlling the Company, or any Subsidiary is or
is
required to be registered as an “investment company” under the Investment
Company Act of 1940.
5.13 Disclosure.
No
report, financial statement, certificate or other information furnished by
or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby or delivered hereunder or under any
other Loan Document (in each case, as modified or supplemented by other
information so furnished), taken as a whole, contains any untrue statement
of
material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided
that, with respect to projected financial information, the Company represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time, it being recognized by the Lenders that
such financial information as it relates to future events is not to be viewed
as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein
by
a material amount.
5.14
Compliance
with
Laws. Each
Loan Party and each Subsidiary thereof is in compliance in all material respects
with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.15 Taxpayer
Identification Number; Other Identifying Information.
The
true and correct U.S. taxpayer identification number of the Company is set
forth
on Schedule
10.02.
72
5.16 Representations
as
to Foreign Obligors. On
and after the date on which any Subsidiary becomes a Foreign Obligor, each
of
the Company and such Foreign Obligor represents and warrants to the
Administrative Agent and the Lenders that:
(a) Such
Foreign Obligor is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is
a
party (collectively as to such Foreign Obligor, the “Applicable
Foreign Obligor Documents”),
and the execution, delivery and performance by such Foreign Obligor of the
Applicable Foreign Obligor Documents constitute and will constitute private
and
commercial acts and not public or governmental acts. Neither such Foreign
Obligor nor any of its property has any immunity from jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) under
the
laws of the jurisdiction in which such Foreign Obligor is organized and existing
in respect of its obligations under the Applicable Foreign Obligor
Documents.
(b) The
Applicable Foreign Obligor Documents are in proper legal form under the Laws
of
the jurisdiction in which such Foreign Obligor is organized and existing for
the
enforcement thereof against such Foreign Obligor under the Laws of such
jurisdiction, and to ensure the legality, validity, enforceability, priority
or
admissibility in evidence of the Applicable Foreign Obligor Documents. It is
not
necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Obligor Documents that
the
Applicable Foreign Obligor Documents be filed, registered or recorded with,
or
executed or notarized before, any court or other authority in the jurisdiction
in which such Foreign Obligor is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of the Applicable
Foreign Obligor Documents or any other document, except for (i) any such filing,
registration, recording, execution or notarization as has been made or is not
required to be made until the Applicable Foreign Obligor Document or any other
document is sought to be enforced and (ii) any charge or tax as has been timely
paid.
(c) Other
than those that, in the aggregate, could not reasonably be expected to have
a
Material Adverse Effect, there is no tax, levy, impost, duty, fee, assessment
or
other governmental charge, or any deduction or withholding, imposed by any
Governmental Authority in or of the jurisdiction in which such Foreign Obligor
is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment
to
be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor
Documents, except as has been disclosed to the Administrative
Agent.
(d) The
execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by such Foreign Obligor are, under applicable foreign exchange control
regulations of the jurisdiction in which such Foreign Obligor 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 that any notification or authorization described in clause
(ii) shall be made or obtained as soon as is reasonably
practicable).
73
ARTICLE
VI.
AFFIRMATIVE
COVENANTS
As
of the Effective Date and for so long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company
shall, and shall (except in the case of the covenants set forth in Sections
6.01,
6.02,
and 6.03)
cause each Subsidiary to:
6.01
Financial
Statements. Deliver
to the Administrative Agent (for distribution to each Lender), in form and
detail reasonably satisfactory to the Administrative Agent and the Required
Lenders:
(a) as
soon as available, but in any event within the filing deadline applicable to
“large accelerated filers” set forth in the SEC regulations promulgated pursuant
to Section 13 of the Exchange Act, after the end of each fiscal year of the
Company (commencing with the fiscal year ended December 31, 2006), a
consolidated balance sheet of the Company and its Subsidiaries as at the end
of
such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year,
prepared in accordance with GAAP, audited and accompanied by a report and
opinion of a Registered Public Accounting Firm of nationally recognized
standing, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall
not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and
(b) as
soon as available, but in any event within the filing deadline applicable to
“large accelerated filers” set forth in the SEC regulations promulgated pursuant
to Section 13 of the Exchange Act, after the end of each of the first three
fiscal quarters of each fiscal year of the Company (commencing with the fiscal
quarter ended September 30, 2006), a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the Company’s fiscal year
then ended, setting forth in each case in comparative form the figures for
the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, and certified
by
a Responsible Officer of the Company as fairly presenting in all material
respects the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of
footnotes.
Notwithstanding
anything to the contrary in this Section
6.01,
the Company shall not be required to deliver any financial statements to the
Administrative Agent with respect to any period for which it has timely filed
its Form 10-K or Form 10-Q, as the case may be, with the SEC; provided,
that such Form 10-K or Form 10-Q, as the case may be, is publicly available
on
the SEC’s website (or a similar website) within the time periods required by
this Section.
74
6.02 Certificates;Other
Information.Deliver
to the Administrative Agent (for distribution to each Lender), in form and
detail reasonably satisfactory to the Administrative Agent and the Required
Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Section 6.01(a),
a certificate of a Responsible Officer of the Company stating that such
Responsible Officer has no knowledge of any Default under the financial
covenants set forth herein or, if any such Default shall exist, stating the
nature and status of such event;
(b) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a)
and (b) (commencing
with the delivery of the financial statements for the fiscal quarter ended
September 30, 2006),
a
duly completed Compliance Certificate signed by the chief executive officer,
chief financial officer, treasurer or controller of the Company;
(c) promptly,
and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S.
jurisdiction) concerning any investigation by such agency regarding financial
or
other operational results of any Loan Party or any Subsidiary thereof;
and
(d) promptly,
such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to
time
reasonably request.
Documents
required
to be delivered pursuant to Section
6.01(a)
or (b)
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Company posts such documents, or
provides a link thereto on the Company’s website on the Internet at the website
address listed on Schedule
10.02;
or (ii) on which such documents are posted on the Company’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website
or
whether sponsored by the Administrative Agent). Notwithstanding anything
contained herein, in every instance the Company shall be required to provide
paper copies of the Compliance Certificates required by Section
6.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall
have
no responsibility to monitor compliance by the Company with any such request
for
delivery, and each Lender shall be solely responsible for requesting delivery
to
it or maintaining its copies of such documents.
6.03 Notices.
Promptly,
after a Responsible Officer of the Company obtains knowledge thereof, notify
the
Administrative Agent:
(a) of
the occurrence of any Default ;
(b) of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect;
75
(c) of
the
occurrence of any ERISA Event or the institution of proceedings or the taking
of
any other action by the PBGC with respect to the withdrawal from or the
termination, reorganization or insolvency of, any Plan that, in any case, could
reasonably be expected to have a Material Adverse Effect; and
(d) of
any material change in accounting policies or financial reporting practices
by
the Company or any Subsidiary.
Each
notice
pursuant to this Section
6.03
shall be accompanied by a statement of a Responsible Officer of the Company
setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each
notice pursuant to Section
6.03(a)
shall describe with particularity any and all provisions of this Agreement
and
any other Loan Document that have been breached.
6.04 Payment
of
Obligations. Pay
and discharge as the same shall become due and payable, all its material
obligations and liabilities, which if not paid could reasonably be expected
to
have a Material Adverse Effect, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves
in
accordance with GAAP are being maintained by the Company or such
Subsidiary.
6.05 Preservation
of
Existence, Etc. (a)
Preserve, renew and maintain in full force and effect the legal existence and
good standing of Company and any Subsidiary Guarantor under the Laws of the
jurisdiction of its organization except in a transaction permitted by
Section
7.03
or 7.04;
(b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.06
Maintenance
of
Properties; Maintenance of Insurance. Except
to the extent that, in the aggregate, non-compliance could not reasonably be
expected to have a Material Adverse Effect, (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of
its
business in good working order and condition, ordinary wear and tear excepted;
and (b) maintain with financially sound and reputable insurance companies,
insurance with respect to its properties and business against loss or damage
of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons.
6.07
Compliance
with
Laws. Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
6.08
Inspection
Rights; Books
and Records. (a)
Maintain proper books and records and accounts in which full, true and correct
entries in conformity with GAAP and all Laws shall be made of all dealings
and
transactions material to the Company and its Subsidiaries, taken as a whole,
in
relation to its business and activities; and (b) permit representatives of
any
Lender to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time but only during normal
business hours and (except in the event a Default or Event of Default exists)
upon reasonable prior notice to the Company and as often as may reasonably
be
desired (but in no event more frequently than two times a year unless an Event
of Default exists) and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with officers
and employees of the Company and its Subsidiaries and, when an Event of Default
exists, with their Registered Public Accounting Firm.
76
6.09
Use
of Proceeds.
Use
the proceeds of the Credit Extensions (a) to repay all obligations under the
Existing Credit Agreements and (b) for working capital purposes, acquisitions,
repurchases of stock, debentures and other securities, the refinancing of
present and future debt and other general corporate purposes not in
contravention of any Law or of any Loan Document.
6.10
Approvals
and
Authorizations. Except
to the extent that, in the aggregate, non-compliance could not reasonably be
expected to have a Material Adverse Effect, maintain all authorizations,
consents, approvals and licenses from, exemptions of, and filings and
registrations with, each Governmental Authority of the jurisdiction in which
each Foreign Obligor is organized and existing, and all approvals and consents
of each other Person in such jurisdiction, in each case that are required in
connection with the Loan Documents.
ARTICLE
VII.
NEGATIVE
COVENANTS
As
of the
Effective Date and for so long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation hereunder shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Company
shall
not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01 Liens.
Create,
incur, assume or suffer to exist any Lien upon any of its property, assets
or
revenues other than Liens on Margin Stock created, incurred or assumed at a
time
when such Margin Stock constitutes Unrestricted Margin Stock, whether now owned
or hereafter acquired, other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Liens
existing on the Closing Date and listed on Schedule
7.01(b)
and any renewals or extensions thereof; provided
that (i) the property covered thereby is not changed, (ii) the amount secured
or
benefited thereby is not increased except as contemplated by Section
7.02(b),
and (iii) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section
7.02(b);
(c) Liens
of Xxxxxx and its Subsidiaries existing on the Closing Date and listed on
Schedule
7.01(c)
and Liens incurred
by the Company and its Subsidiaries and Xxxxxx and its Subsidiaries during
the
period between the Closing Date and the Effective Date and listed on
Schedule
7.01(c)
and permitted pursuant to the Existing Credit Agreements or the Merger Agreement
and, in each case, any renewals or extensions thereof; provided
that (i) the property covered thereby is not changed, (ii) the amount secured
or
benefited thereby is not increased except as contemplated by Section
7.02(c),
and (iii) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section
7.02(c);
77
(d) Liens
on property of the Company and its Subsidiaries not reflected on the
consolidated balance sheet of the Company and its Subsidiaries that are limited
to amounts that have been irrevocably deposited with a financial institution;
(e) Liens
for Taxes not yet delinquent, that remain payable without penalty, or which
are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books
of the applicable Person in accordance with GAAP;
(f) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not delinquent for a period
of more than 60 days or which are being contested in good faith and by
appropriate proceedings diligently conducted;
(g) pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;
(h) pledges
or deposits to secure the performance of bids, trade contracts (other than
for
borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(i) easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which
do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the
applicable Person;
(j) Liens
securing judgments for the payment of money or securing appeal or other surety
bonds related to such judgments;
(k) customary
rights of setoff upon deposit accounts and securities accounts of cash in favor
of banks or other depository institutions and securities intermediaries;
provided
that (i) such deposit account or securities account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company or any of its Subsidiaries owning the affected deposit account or other
funds maintained with a creditor depository institution in excess of those
set
forth by regulations promulgated by the FRB or any foreign regulatory agency
performing an equivalent function, and (ii) such deposit account or securities
account is not intended by the Company or any of its Subsidiaries to provide
collateral (other than such as is ancillary to the establishment of such deposit
account or securities account) to the depository institution;
(l) Liens
arising under cash management pooling arrangements;
78
(m) any
interest
or title of a lessor under any lease entered into by the Company or any of
its
Subsidiaries in the ordinary course of its business and covering only the assets
so leased;
(n) Liens
incurred pursuant to a Permitted Receivables Securitization on the Receivables
that are subject thereto; and
(o) other
Liens securing Indebtedness in an aggregate amount not to exceed, at any time
outstanding, 10% of the book value of the Consolidated Total Tangible Assets
of
the Company and its Subsidiaries.
7.02 Subsidiary Indebtedness.
Permit
any Subsidiary (including any Designated Borrower) that is not a Subsidiary
Guarantor to create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
of Designated Borrowers under the Loan Documents;
(b) Indebtedness
outstanding on the Closing Date and listed on Schedule
7.02(b)
and additional Indebtedness incurred after the Closing Date under the revolving
credit arrangements listed on Schedule
7.02(b)
in an aggregate principal amount at any one time outstanding not to exceed
the
commitments or limits existing with respect thereto on the date hereof and
set
forth on such Schedule and any replacements, refinancings, refundings, renewals
or extensions thereof; provided
that the principal amount of such Indebtedness is not increased at the time
of
such replacement, refinancing, refunding, renewal or extension above the
commitments or limits set forth on such Schedule and the maturity thereof is
not
shortened to a date earlier than the maturity thereof set forth on such
Schedule;
(c) Indebtedness
of Xxxxxx and its Subsidiaries outstanding on the Closing Date and listed on
Schedule
7.02(c)
and Indebtedness incurred by any Subsidiary of the Company, Xxxxxx or any of
its
Subsidiaries during the period between the Closing Date and the Effective Date
and listed on Schedule
7.02(c)
and, in each case, any refinancings, refundings, renewals or extensions thereof;
provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(d) Indebtedness
of any Subsidiary of Xxxxxx contemplated by Xxxxxx prior to the Effective Date
and consummated after the Effective Date in an aggregate amount not to exceed,
at any time outstanding, $200,000,000;
(e) Indebtedness
of any Subsidiary to the Company or to any other Subsidiary;
(f) Guarantees
by any Subsidiary in respect of Indebtedness of the Company or any other
Subsidiary otherwise permitted hereunder; provided,
however,
that any Guarantees by Subsidiaries that are not Subsidiary Guarantors in
respect of Indebtedness of the Company or any Subsidiary Guarantor shall not
exceed, at any time outstanding, $50,000,000 in the aggregate; and
79
(g) Indebtedness
of all Subsidiaries (other than any Subsidiary Guarantor) in an aggregate
principal amount not to exceed, at any time outstanding, 10% of the total book
value of the Consolidated Total Tangible Assets of the Company and its
Subsidiaries.
7.03
Fundamental
Changes. Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to or in favor
of
any Person, except that, so long as no Default exists or would result
therefrom:
(a) any
Subsidiary may merge with (i) the Company, provided
that the Company shall be the continuing or surviving Person, or (ii) any one
or
more other Subsidiaries, provided
that when any Subsidiary Guarantor is merging with another Subsidiary, the
Subsidiary Guarantor shall be the continuing or surviving Person;
(b) any
Subsidiary may Dispose of all or substantially all of its assets (i) (upon
voluntary liquidation or otherwise) to the Company or to another Subsidiary
or
(ii) pursuant
to a Disposition permitted by Section
7.04;
(c) any
Subsidiary (other than a Subsidiary Guarantor) may be wound up, liquidated
or
dissolved, as deemed appropriate by the Company; and
(d) any
other Person may be merged or consolidated with any Subsidiary.
7.04
Dispositions.
Make
any Disposition (other than any property which, at the time of any Disposition,
constitutes Unrestricted Margin Stock) or enter into any agreement to make
any
Disposition, except:
(a) Dispositions
of obsolete, surplus or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;
(b) Dispositions
of inventory in the ordinary course of business;
(c) Dispositions
of equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or (ii)
the proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;
(d) Dispositions
of property by the Company or any of its Subsidiaries to the Company or any
of
its Subsidiaries;
(e) Dispositions
listed on Schedule
7.04;
(f) Disposition
of Receivables pursuant to a Permitted Receivables Securitization;
(g) Dispositions
by the Company and its Subsidiaries of property pursuant to sale-leaseback
transactions; and
80
(h)
Dispositions
by the Company and its Subsidiaries not otherwise permitted under this
Section
7.04;
provided
that (i) at the time of such Disposition, no Default exists or would result
from
such Disposition and (ii) the aggregate book value of all property Disposed
of
in reliance on this clause (h) in any fiscal year shall not exceed 10% of the
book value of the total consolidated assets of the Company and its Subsidiaries
in accordance with GAAP.
7.05 Transactions
with Affiliates. Enter
into any transaction of any kind with any Affiliate of the Company, whether
or
not in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate; provided
that the foregoing restriction shall not apply to (a) transactions between
or
among the Company and any of its Subsidiaries, (b) transactions otherwise
permitted hereunder or (c) transactions that do not exceed, in the aggregate,
$5,000,000 during any fiscal year.
7.06 Consolidated
Leverage Ratio. Permit
the Consolidated Leverage Ratio as at the last day of any Fiscal Quarter to
be
greater than 3.0 to 1.0.
ARTICLE
VIII.
EVENTS
OF DEFAULT AND REMEDIES
8.01 Events
of Default. Any of
the following shall constitute an Event of Default:
(a) Non-Payment.
Any Borrower or any other Loan Party fails to pay (i) when and as required
to be
paid herein, and in the currency required hereunder, any amount of principal
of
any Loan or any L/C Obligation, or (ii) within five days after the same becomes
due, any interest on any Loan or on any L/C Obligation, any fee due hereunder,
or any other amount payable hereunder or under any other Loan Document;
or
(b) Specific
Covenants.
The Company fails to perform or observe any term, covenant or agreement
contained in any of Section
6.03(a),
6.05
(with respect to the existence of the Company, Xxxxxx, any Designated Borrower
or any Subsidiary Guarantor), 6.09
or Article
VII or
any Subsidiary Guarantor fails to perform or observe any term, covenant or
agreement contained in Section 1 of the Subsidiary Guaranty; or
(c) Other
Defaults.
Any Loan Party fails to perform or observe any other covenant or agreement
(not
specified in subsection (a) or (b) above) contained in any Loan Document on
its
part to be performed or observed and such failure continues for 30 days after
the earlier of (i) a Responsible Officer of the Company having knowledge of
such
Default or (ii) the receipt by any Borrower or any such Loan Party of written
notice from the Administrative Agent or any Lender of such Default;
or
(d) Representations
and Warranties.
Any representation, warranty, certification or statement of fact made or deemed
made by or on behalf of the Company or any other Loan Party herein, in any
other
Loan Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading in any material respect when made or deemed
made; or
81
(e) Cross-Default.
(i) The Company or any Material Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise and after any applicable grace period) in respect of any
Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) or Guarantee having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold
Amount (any such Indebtedness or Guarantee, “Threshold
Indebtedness”),
or (B) fails to observe or perform (after any applicable grace period) any
other
agreement or condition relating to any Threshold Indebtedness or contained
in
any instrument or agreement evidencing, securing or relating thereto, or any
other event occurs, the effect of which default or other event (other than
any
such default or event arising solely out of the violation by the Company or
any
of its Subsidiaries of any covenant in any way restricting the Company, or
any
such Subsidiary’s, right or ability to sell, pledge or otherwise dispose of
Unrestricted Margin Stock) is to cause, or to permit the holder or holders
or
the beneficiary or beneficiaries of such Threshold Indebtedness (or a trustee
or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to
cause, with the giving of notice if required, such Threshold Indebtedness to
be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Threshold Indebtedness to become payable or cash collateral in respect thereof
to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from any event
of
default under such Swap Contract as to which the Company or any Subsidiary
is
the Defaulting Party (as defined in such Swap Contract) and the Swap Termination
Value owed by the Company or such Subsidiary as a result thereof is greater
than
the Threshold Amount; or
(f) Insolvency
Proceedings, Etc.
Any Loan Party or any of their respective Material Subsidiaries institutes
or
consents to the institution of any proceeding under any Debtor Relief Law,
or
makes an assignment for the benefit of creditors; or applies for or consents
to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment.
(i) Any Loan Party or any of their respective Material Subsidiaries becomes
unable or admits in writing its inability or fails generally to pay its debts
as
they become due, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments.
There is entered against the Company or any Material Subsidiary one or more
final judgments or orders for the payment of money in an aggregate amount (as
to
all such judgments or orders) exceeding the Threshold Amount (to the extent
not
covered by independent third-party insurance as to which the insurer does not
dispute coverage and there is a period of 30 consecutive days during which
a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
82
(i) ERISA. (i)
An ERISA Event occurs
with respect to a Pension Plan or Multiemployer Plan which has resulted or
could
reasonably be expected to result in liability of the Company under Title IV
of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Company or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or
(j) Invalidity
of Loan Documents.
Any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or
(k) Change
of Control.
There occurs any Change of Control.
8.02 Remedies
Upon Event of
Default. If
any Event of Default exists, the Administrative Agent shall, at the request
of,
or may, with the consent of, the Required Lenders, take any or all of the
following actions:
(a) declare
the
commitment of each Lender to make Loans and any obligation of each L/C Issuer
to
make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued
and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrowers;
(c) require
that the Company Cash Collateralize the L/C Obligations (in an amount equal
to
the then Outstanding Amount thereof); and
(d) exercise
on
behalf of itself, the Lenders and each L/C Issuer all rights and remedies
available to it, the Lenders and each L/C Issuer under the Loan
Documents;
provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of
the
United States, the obligation of each Lender to make Loans and any obligation
of
each L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
8.03 Application
of
Funds. After
the exercise of remedies provided for in Section
8.02
(or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized
as set forth in the proviso to Section
8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
83
First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under
Article
III)
payable to the Administrative Agent in its capacity as such;
Second,
to payment of that portion of the Obligations constituting fees, indemnities
and
other amounts (other than principal, interest and Letter of Credit Fees) payable
to the Lenders and each L/C Issuer (including Attorney Costs and amounts payable
under Article
III),
ratably among them in proportion to the respective amounts described in this
clause Second
payable to them;
Third,
to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other
Obligations, ratably among the Lenders and each L/C Issuer in proportion to
the
respective amounts described in this clause Third
payable to them;
Fourth,
to payment of that portion of the Obligations constituting unpaid principal
of
the Loans and L/C Borrowings ratably among the Lenders and each L/C Issuer
in
proportion to the respective amounts described in this clause Fourth
held by them,
and to the payment of the maximum amount of all Bankers’ Acceptances then
outstanding, such payment to be for the account of the applicable L/C Issuer
(or
to the extent Lenders have theretofore funded their participations in any such
Bankers’ Acceptance, ratably among such Lenders in accordance with their
Applicable Percentages);
Fifth,
to the Administrative Agent for the account of each L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit; and
Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in
full, to the Company or as otherwise required by Law.
Subject
to Section
2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters
of
Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as
they
occur. If any amount remains on deposit as cash collateral after all Letters
of
Credit have either been fully drawn or expired, such remaining amount shall
be
applied to the other Obligations, if any, in the order set forth
above.
ARTICLE
IX.
ADMINISTRATIVE
AGENT
9.01 Appointment
and
Authority. Each
of the Lenders and each L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions
on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers
as
are reasonably incidental thereto. The provisions of this Article are solely
for
the benefit of the Administrative Agent, the Lenders and each L/C Issuer, and
neither any Borrower nor any other Loan Party shall have rights as a third
party
beneficiary of any of such provisions.
84
9.02 Rights
as a Lender.
The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise
the
same as though it were not the Administrative Agent and the term “Lender”
or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder
in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower
or
any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to
the
Lenders.
9.03 Exculpatory
Provisions. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents. Without limiting
the
generality of the foregoing, the Administrative Agent:
(a) shall
not be subject to
any fiduciary or other implied duties, regardless of whether a Default
exists;
(b)
shall
not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Administrative Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided
that the Administrative Agent shall not be required to take any action that,
in
its opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable law;
and
(c) shall
not, except as expressly set forth herein and in the other Loan Documents,
have
any duty to disclose, and shall not be liable for the failure to disclose,
any
information relating to any of the Borrowers or any of their respective
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The
Administrative Agent shall not be liable to any Lender for any action taken
or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or
as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections
10.01
and 8.02)
or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent
by
the Company, a Lender or an L/C Issuer.
The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents
of
any certificate, report or other document delivered hereunder or thereunder
or
in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or
any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article
IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.
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9.04 Reliance
by
Administrative Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by
it to be genuine and to have been signed, sent or otherwise authenticated by
the
proper Person. The Administrative Agent also may rely upon any statement made
to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or an L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or such L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such Lender
or such L/C Issuer prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it
in accordance with the advice of any such counsel, accountants or
experts.
9.05 Delegation
of Duties.
The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through
any
one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent
selected by it with reasonable care and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
9.06
Resignation of Administrative Agent; Resignation of L/C Issuers.
(a) The
Administrative Agent may at any time give notice of its resignation to the
Lenders, each L/C Issuer and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
and
subject to approval by the Company (such approval not to be unreasonably
withheld or delayed), to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office
in
the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Lenders and each L/C
Issuer and subject to approval by the Company (such approval not to be
unreasonably withheld or delayed), appoint a successor Administrative Agent
meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Company and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (i) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (ii) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
and
each L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon
the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by
the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Company and such
successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.
86
(b) Any
resignation by
Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as an L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, (i)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of such retiring L/C Issuer and the retiring
Swing
Line Lender, (ii) such retiring L/C Issuer and the retiring Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (iii) such successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if
any,
outstanding at the time of such succession or make other arrangements
satisfactory to such retiring L/C Issuer to effectively assume the obligations
of such retiring L/C Issuer with respect to such Letters of Credit.
(c) Barclays
may at any time give notice of its resignation as an L/C Issuer to the
Administrative Agent. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with and subject to
approval by the Company (such approval not to be unreasonably withheld or
delayed), to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring L/C Issuer gives notice of its resignation, then the retiring L/C
Issuer may appoint a successor L/C Issuer meeting the qualifications set forth
above; provided
that if the retiring L/C Issuer shall notify the Company and the Lenders that
no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice. Upon the acceptance
of a successor’s appointment as an L/C Issuer hereunder, (i) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of such retiring L/C Issuer, (ii) such retiring L/C Issuer shall
be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents, and (iii) such successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to such retiring
L/C Issuer to effectively assume the obligations of such retiring L/C Issuer
with respect to such Letters of Credit.
87
9.07 Non-Reliance
on
Administrative Agent and Other Lenders. Each
Lender and each L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and each L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 No
Other Duties,
Etc. Anything
herein to the contrary notwithstanding, none of the Arrangers, Syndication
Agent
or Documentation Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a
Lender or an L/C Issuer hereunder.
9.09 Administrative
Agent May
File Proofs of Claim. In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall
then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand
on
any Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, each L/C Issuer and
the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, each L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, each L/C Issuer and the Administrative Agent under
Sections
2.03(i)
and (j),
2.09
and 10.04)
allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and each L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making
of
such payments directly to the Lenders and each L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.09
and 10.04.
88
Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or any L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or any L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any Lender
or any L/C Issuer in any such proceeding.
9.10 Guaranty
Matters. The
Lenders and each L/C Issuer irrevocably authorize the Administrative Agent,
at
its option and in its discretion, to release any Subsidiary Guarantor from
its
obligations under the Subsidiary Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder. Upon request by
the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release any Subsidiary Guarantor from
its obligations under the Subsidiary Guaranty pursuant to this Section
9.10.
ARTICLE
X.
MISCELLANEOUS
10.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Company or any other Loan
Party
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Company or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided,
however,
that no such amendment, waiver or consent shall:
(a) waive
any condition set forth in Section
4.01
without the written consent of each Lender;
(b) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section
8.02)
without the written consent of such Lender;
(c) postpone
any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected
thereby;
(d)
amend
Section
1.06
or the definition of “Alternative
Currency”
without the written consent of each Lender;
(e) reduce
the principal of, or the rate of interest specified herein on, any Loan or
L/C
Borrowing, or (subject to clause (v) of the second proviso to this Section
10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
provided,
however,
that only the consent of the Required Lenders shall be necessary to amend the
definition of “Default
Rate”
or to waive any obligation of any Borrower to pay interest or Letter of Credit
Fees at the Default Rate;
89
(f) change
Section
2.13
or Section
8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;
(g) change
any provision of this Section or the definition of “Required
Lenders”
or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of
each
Lender; or
(h) except
as is permitted by Section
9.10,
release the Company from the Company Guaranty or all or substantially all of
the
value of the Subsidiary Guaranty without the written consent of each
Lender;
and,
provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by each L/C Issuer in addition to the
Lenders required above, affect the rights or duties of any L/C Issuer under
this
Agreement or any Issuer Document relating to any Letter of Credit or Bankers’
Acceptance issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to
the
Lenders required above, affect the rights or duties of the Swing Line Lender
under this Agreement; (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; (iv) Section 10.06(h) may not
be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time
of
such amendment, waiver or other modification; and (v) each Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may
not
be increased or extended without the consent of such Lender.
10.02 Notices;
Effectiveness;
Electronic Communication.
(a) Notices
Generally.
Except in the case of notices and other communications expressly permitted
to be
given by telephone (and except as provided in subsection (b)
(below), all notices and
other
communications provided for herein shall be in writing and shall be delivered
by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if
to a Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender,
to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule
10.02;
and
(ii)
if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.
90
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic
Communications.
Notices and other communications to the Lenders and each L/C Issuer hereunder
may be delivered or furnished by electronic communication (including e-mail
and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender or the L/C Issuer
pursuant to Article
II
if such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Company 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.
Unless
the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to
have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available
and identifying the website address therefor.
(c) The
Platform.
Each Borrower hereby acknowledges that the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuers materials
and/or information provided by or on behalf of such Borrower hereunder
(collectively, “Borrower
Materials”)
by posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”).
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the
“Agent
Parties”)
have any liability to any Borrower, any Lender, any L/C Issuer or any other
Person for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party
have
any liability to any Borrower, any Lender, any L/C Issuer or any other Person
for indirect, special, incidental, consequential or punitive damages (as opposed
to direct or actual damages).
91
(d) Change
of Address, Etc.
Each of the Borrowers, the Administrative Agent, each L/C Issuer and the Swing
Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each
other Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Company, the Administrative
Agent, each L/C Issuer and the Swing Line Lender. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that
the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices
and other communications may be sent and (ii) accurate wire instructions for
such Lender.
(e) Reliance
by Administrative Agent, L/C Issuers and Lenders. The
Administrative Agent, each L/C Issuer and the Lenders shall be entitled to
rely
and act upon any notices (including telephonic Committed Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of any Borrower even if
(i)
such notices were not made in a manner specified herein, were incomplete or
were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Company shall indemnify the Administrative Agent, each L/C Issuer,
each Lender and the Related Parties of each of them from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of any Borrower. All telephonic notices
to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 No
Waiver; Cumulative
Remedies. No
failure by any Lender, any L/C Issuer or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single
or
partial exercise of any right, remedy, power or privilege hereunder preclude
any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
(a) Costs
and Expenses. The
Company shall pay
(i) all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the Attorney Costs of the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents
or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by each
L/C Issuer in connection with the issuance, amendment, renewal or extension
of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or
any
L/C Issuer (including the Attorney Costs of the Administrative Agent, the
Lenders and the L/C Issuers) in connection with the enforcement or protection
of
its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
92
(b) Indemnification
by the Company.
The Company shall indemnify and hold harmless the Administrative Agent (and
any
sub-agent thereof selected by it with reasonable care), each Lender and each
L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”)
from and against (and will reimburse each Indemnitee as the same are incurred
for) any and all claims, damages, losses, liabilities and expenses (including
Attorney Costs), in each case, arising out of or in connection with or by reason
of (including in connection with any investigation, litigation or proceeding
or
preparation of a defense in connection therewith) (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations hereunder or thereunder, the consummation of
the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents or
(ii) any Loan or Letter of Credit or Bankers’ Acceptance or the use or
proposed use of the proceeds therefrom (including any refusal by an L/C Issuer
to honor a demand for payment under a Letter of Credit or a Bankers’ Acceptance
if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), except to the extent such claim,
damage, loss, liability or expense is found to have resulted from such
Indemnitees’ gross negligence or willful misconduct. The Company agrees that no
Indemnitee shall have any liability (whether direct or indirect, in contract
or
tort or otherwise) to the Company or its Subsidiaries or Affiliates or the
Company’s respective equity holders or creditors arising out of, related to or
in connection with any aspect of the transactions contemplated hereby, except
to
the extent of direct, as opposed to special, indirect, consequential or
punitive, damages determined to have resulted from such Indemnitee’s gross
negligence, breach of contract or willful misconduct. Notwithstanding any other
provision of this Agreement, no Indemnitee shall be liable for any damages
arising from the use by others of information or other materials obtained
through electronic telecommunications or other information transmission systems
other than damages resulting from its gross negligence, breach of contract
or
willful misconduct. If legally permitted, any Indemnitee shall promptly notify
the Company in writing of any claim or action by a third party for which the
Indemnitee plans to seek indemnification hereunder; provided
that no failure or delay by any Indemnitee to so provide such notice shall
relieve the Company from any liability or obligation hereunder except to the
extent of any prejudice, damage or liability caused by or arising out of such
delay or failure. The Company shall have the right to control the defense or
settlement of any such claim or action and to select counsel with respect
thereto, which counsel shall be subject to the approval of the Indemnitee (such
approval not to be unreasonably withheld or delayed); provided,
however,
that the Company shall not consent to any settlement or to the entry of any
judgment with respect to such claim or action that does not include a complete
release of the Indemnitee from all liability with respect thereto or which
imposes any liability or obligation on the Indemnitee without the prior written
consent of the Indemnitee. Notwithstanding the Company’s right to appoint
counsel to represent the Indemnitee in an action, the Indemnitee shall have
the
right to employ separate counsel (including local counsel) if (i) the use of
counsel chosen by the Company to represent the Indemnitee would present such
counsel with a conflict of interest or (ii) the Company shall not have employed
counsel satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after notice of the institution of such action. It is understood
that the Company shall not, in connection with any action or claim or related
actions or claims, be liable for fees and expenses of more than one primary
such
separate counsel (and at least one local counsel in each affected jurisdiction
to the extent reasonably necessary) for all of the Indemnitees.
93
(c) Reimbursement
by Lenders.
To the extent that the Company for any reason fails to indefeasibly pay any
amount required under subsection (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer
or
any Related Party of any of the foregoing, each Lender severally agrees to
pay
to the Administrative Agent (or any such sub-agent), such L/C Issuer or such
Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability
or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or any L/C Issuer in connection
with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver
of Consequential
Damages, Etc. To
the fullest extent permitted by applicable law, no Borrower shall assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability,
for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to
such
unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement
or
the other Loan Documents or the transactions contemplated hereby or thereby
other than for direct or actual damages resulting from the gross negligence
or
willful misconduct of such Indemnitee.
(e) Payments. All
amounts due under this
Section shall be payable not later than ten Business Days after demand
therefor.
(f) Survival. The
agreements in this Section
shall survive the resignation of the Administrative Agent, any L/C Issuer and
the Swing Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
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10.05
Payments
Set Aside.
To
the extent that any payment by or on behalf of any Borrower is made to the
Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent,
any L/C Issuer or any Lender exercises its right of setoff, and such payment
or
the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent, such L/C
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver
or
any other party, in connection with any proceeding under any Debtor Relief
Law
or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued
in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay
to
the Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time
in
effect, in the applicable currency of such recovery or payment. The obligations
of the Lenders and each L/C Issuer under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of
this
Agreement.
(a) Successors
and Assigns Generally. 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, except that
neither any Borrower nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of
the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee
in
accordance with the provisions of subsection (b) of this Section, (ii) by way
of
participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment of a security interest subject
to
the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors
and
assigns permitted hereby, Participants to the extent provided in subsection
(d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, each L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments
by Lenders.
Any Lender may at any time assign to one or more assignees all or a portion
of
its rights and obligations under this Agreement (including all or a portion
of
its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing
to
it); provided
that any such assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
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(B) in
any case not described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the 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 or, if “Trade Date”
is specified in the Assignment and Assumption, as of such Trade Date, shall
not
be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of Default exists,
the
Company otherwise consents (each such consent not to be unreasonably withheld
or
delayed); provided,
however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.
(ii) Proportionate
Amounts.
Each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans;
(iii) Required
Consents.
No consent shall be required for any assignment except to the extent required
by
subsection (b)(i)(B) of this Section and, in addition:
(A) the
consent of the Company (such consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default exists at the time of such
assignment or (2) such assignment is to an existing Lender;
(B) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to any Person
that
is not an existing Lender;
(C) the
consent of each L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation
of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and
(D) the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment unless the assignee is an
existing Lender.
(iv) Assignment
and
Assumption.
The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee in the amount of $3,500; provided,
however,
that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee,
if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and any tax forms required by Section
3.01(e).
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(v) No
Assignment to Company.
No such assignment shall be made to the Company or any of the Company’s
Affiliates or Subsidiaries.
(vi) No
Assignment to Natural Persons.
No such assignment shall be made to a natural person.
(vii) No
Assignment
Resulting in Additional Indemnified Taxes.
No such assignment shall be made to any Person that, through its Lending
Offices, is not capable of lending the applicable Alternative Currencies to
the
relevant Borrowers without the imposition of any additional Indemnified
Taxes.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in
each Assignment and Assumption, the assignee thereunder shall be a party to
this
Agreement 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 of Sections
3.01,
3.04,
3.05,
and 10.04
with respect to facts and circumstances occurring prior to the effective date
of
such assignment. Upon request, each Borrower (at its expense) shall execute
and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of
rights or obligations under this Agreement that does not comply with this
subsection 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
subsection (d) of this Section.
(c) Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office 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 L/C Issuers, and the Commitments
of,
and principal amounts and interest of the Loans and L/C Obligations owing to,
each Lender and L/C Issuer pursuant to the terms hereof from time to time (the
“Register”).
The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the L/C Issuers and the Lenders shall 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 right, title, and interest of any Lender and L/C Issuer shall
be
transferable only upon notation of such transfer in the Register. The Register
shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, any Borrower
or the Administrative Agent, sell participations to any Person (other than
a
natural person or the Company or any of the Company’s Affiliates or
Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent, the Lenders and each L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.
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Any
agreement
or instrument 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 or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section
10.01
that affects such Participant. Subject to subsection (e) of this Section, each
Borrower agrees that each Participant shall be entitled, through the applicable
Lender, to the benefits of Sections
3.01,
3.04
and 3.05 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided
such Participant agrees to be subject to Section
2.13
as though it were a Lender.
(e) Limitations
upon Participant Rights.
A Participant shall not be entitled to receive any greater payment under
Section
3.01,
3.04 or
3.05
than the applicable Lender would have been entitled to receive with respect
to
the participation sold to such Participant. Without limiting the foregoing,
a
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01
unless the Company is notified of the participation sold to such Participant
and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section
3.01(e)
as though it were a Lender.
(f) Certain
Pledges.
Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note(s), if
any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Electronic
Execution of Assignments.
The words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
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(h) Special
Purpose Funding Vehicles.
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting
Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the
Company (an “SPC”)
the option to provide all or any part of any Committed Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement;
provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any
Committed Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Committed Loan, the Granting
Lender shall be obligated to make such Committed Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required under Section
2.12(b)(ii).
Each party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrowers under this
Agreement (including its obligations under Section
3.04),
(ii) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver
or other modification of any provision of any Loan Document, remain the lender
of record hereunder. The making of a Committed Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Committed Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any
State thereof. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Company and the
Administrative Agent and with the payment of a processing fee in the amount
of
$2,500, assign all or any portion of its right to receive payment with respect
to any Committed Loan to the Granting Lender and (ii) disclose on a confidential
basis any non-public information relating to its funding of Committed Loans
to
any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
(i) Resignation
as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America or Barclays assigns all of its Commitment and Loans pursuant to
subsection (b) above, (i) Bank of America or Barclays may, upon 30 days’ notice
to the Company and the Lenders, resign as an L/C Issuer and/or (ii) Bank of
America may, upon 30 days’ notice to the Company, resign as Swing Line Lender.
In the event of any such resignation as an L/C Issuer or Swing Line Lender,
the
Company shall be entitled to appoint from among the Lenders a successor L/C
Issuer or Swing Line Lender hereunder; provided,
however,
that no failure by the Company to appoint any such successor shall affect the
resignation of Bank of America or Barclays as an L/C Issuer or Bank of America
as Swing Line Lender, as the case may be. If Bank of America or Barclays resigns
as an L/C Issuer, it shall retain all the rights, powers, privileges and duties
of an L/C Issuer hereunder with respect to all Letters of Credit and Bankers’
Acceptances outstanding, and all Bankers’ Acceptances issuable under ay
Acceptance Credit outstanding, as of the effective date of its resignation
as an
L/C Issuer and all L/C Obligations with respect thereto (including the right
to
require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section
2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Committed Loans
or
fund risk participations in outstanding Swing Line Loans pursuant to
Section
2.04(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of such retiring L/C Issuer or Swing Line Lender,
as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to Bank of
America or to Barclays to effectively assume the obligations of Bank of America
or Barclays, as the case may be, with respect to such Letters of
Credit.
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10.07 Treatment
of Certain
Information; Confidentiality. Each
of the Administrative Agent, the Lenders and each L/C Issuer agrees on its
own
behalf and on behalf of its Affiliates to keep confidential all non-public
Information provided to it by the Company, Xxxxxx or any of their respective
Subsidiaries pursuant to or in connection with this Agreement; provided
that nothing herein shall prevent the Administrative Agent, the Lenders and
each
L/C Issuer from disclosing any such Information (a) subject to an express
agreement to maintain the confidentiality of such Information in compliance
with
the provisions of this Section
10.07
to an Affiliate of the Administrative Agent, the Lenders or any L/C Issuer,
solely for the purposes of, or otherwise in connection with, this Agreement,
(b)
subject to an express agreement to maintain the confidentiality of such
Information in compliance with the provisions of this Section
10.07,
to any actual or prospective transferee or any direct or indirect counterparty
to any Swap Agreement (or any professional advisor to such counterparty), (c)
to
its employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its Affiliates, or of any Affiliate of any Lender,
in each case who have a need to know such Information in accordance with
customary business practices (it being understood that the person to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (d) upon
the
request or demand of any governmental authority, (e) in response to any order
of
any court or other governmental authority or as may otherwise be required
pursuant to any requirement of law, (f) if required to do so in connection
with
any litigation or similar proceeding, (g) that has been publicly disclosed,
other than as a result of a disclosure by the Administrative Agent, any Lender
or any L/C Issuer or any of their respective employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of their
respective affiliates, in violation of this paragraph, or (h) in connection
with
the exercise of any remedy hereunder or the Fee Letter. Unless specifically
prohibited by applicable law or court order, the Administrative Agent, any
Lender or any L/C Issuer shall, prior to any disclosure under clause (d), (e)
or
(f) above to (x) any governmental authority that does not have supervisory,
regulatory or other similar authority with respect to the Administrative Agent,
such Lender or such L/C Issuer and that is seeking such disclosure solely in
connection with an investigation, litigation or other proceeding that does
not
otherwise involve the Administrative Agent, such Lender or such L/C Issuer
or
(y) any other person that is not a governmental authority, notify the Company
of
any request for the disclosure of any such non-public Information so as to
provide the Company with the reasonable opportunity to obtain a protective
order
or other comparable relief. None of the Administrative Agent, any Lender or
any
L/C will make available to the Company or any of its Affiliates confidential
Information that they have obtained or may obtain from any other customer.
The
Administrative Agent, each Lender and each L/C Issuer are permitted to access,
use and share with any of their respective bank or non-bank Affiliates, agents,
advisors (legal or otherwise) or representatives any Information concerning
the
Company or any of its Affiliates that is or may come into the possession of
the
Administrative Agent, any Lender or such L/C Issuer or any of such Affiliates;
provided,
however,
that, in each case, such Information shall be used solely in connection with
this Credit Agreement.
100
For
purposes
of this Section, “Information”
means all information received from the Company or any Subsidiary relating
to
the Company or any Subsidiary or any of their respective businesses other than
any such information that is available to the Administrative Agent, any Lender
or any L/C Issuer on a nonconfidential basis prior to disclosure by the Company
or any Subsidiary after the date hereof.
Each
of the
Administrative Agent, the Lenders and each L/C Issuer acknowledges that (a)
the
Information may include material non-public information concerning the Company
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle
such
material non-public information in accordance with applicable Law, including
Federal and state securities Laws.
10.08 Right
of Setoff.
If
an Event of Default shall exists, each Lender, each L/C Issuer and each of
their
respective Affiliates is hereby authorized at any time and from time to time,
to
the fullest extent permitted by applicable law, to set off and apply any and
all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at
any
time owing by such Lender, such L/C Issuer or any such Affiliate to or for
the
credit or the account of any Borrower or any other Loan Party against any and
all of the obligations of such Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or
such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of such Borrower or such Loan Party may be contingent
or unmatured or are owed to a branch or office of such Lender or such L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their
respective Affiliates may have. Notwithstanding anything to the contrary
contained herein, each Lender, each L/C Issuer and their respective Affiliates
shall have no right to set off and apply any deposits held or other obligations
owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit
or the account of any Foreign Obligor against any of the obligations of any
Borrower which is not a Foreign Obligor. Each Lender and each L/C Issuer agrees
to notify the Company and the Administrative Agent promptly after any such
setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
10.09 Interest
Rate
Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid
or
agreed to be paid under the Loan Documents shall not exceed the maximum rate
of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to
the
Company. In determining whether the interest contracted for, charged, or
received by the Administrative Agent or a Lender exceeds the Maximum Rate,
such
Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and theeffects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.
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10.10 Counterparts;
Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto
in
different counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute a single contract. This Agreement
and
the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Sections
4.01
and 4.02,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each
of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
10.11 Survival
of
Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document
or
other document delivered pursuant hereto or thereto or in connection herewith
or
therewith shall survive the execution and delivery hereof and
thereof.
10.12 Severability.If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement and the other Loan Documents
shall
not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible
to
that of the illegal, invalid or unenforceable provisions. The invalidity of
a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.13 Replacement
of
Lenders. If
any Lender requests compensation under Section
3.04,
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01,
if any Lender is a Defaulting Lender, if the obligation of any Lender to make
or
continue Eurocurrency Rate Loans is suspended pursuant to Section
3.02,
if any Lender is a Non-Participating Lender, if any Lender is a Non-Extending
Lender, or if any Lender (a “Non-Consenting
Lender”)
refuses to consent to an amendment, modification or waiver of this Agreement
that, pursuant to Section 10.01,
requires consent of 100% of the Lenders or if any other circumstance exists
hereunder that gives the Company the right to replace a Lender as a party
hereto, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to execute an
Assignment and Assumption (the Administrative Agent being hereby authorized
to
execute any Assignment and Assumption on behalf of such Lender relating to
the
assignment of Loans and/or Commitments of such Lender)
assigning and delegating, without recourse (in accordance with and subject
to
the restrictions contained in, and consents required by, Section
10.06),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment),
provided
that:
102
(a) the
Company shall have paid (or caused a Designated Subsidiary to pay) to the
Administrative Agent the assignment fee specified in Section
10.06(b);
(b) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued
fees
and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section
3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company or applicable Designated Borrower (in the
case
of all other amounts);
(c) in
the case of any such assignment resulting from a claim for compensation under
Section
3.04
or payments required to be made pursuant to Section
3.01,
such assignment will result in a reduction in such compensation or payments
thereafter;
(d) in
the event such Lender is a Non-Consenting Lender, each assignee shall consent,
at the time of such assignment, to each matter in respect of which such Lender
was a Non-Consenting Lender and the Company also requires each other Lender
that
is a Non-Consenting Lender to assign its Loans and Commitments; and
(e) such
assignment does not conflict with applicable Laws.
10.14 Governing
Law;
Jurisdiction; Etc.
(a) GOVERNING
LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK.
(b) SUBMISSION
TO JURISDICTION.
EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF
THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A
FINAL JUDGMENT NOT SUBJECT TO FURTHER APPEAL IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
103
(c)
WAIVER
OF VENUE.
EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.15 Waiver
of Jury
Trial. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
10.16 No
Advisory or Fiduciary
Responsibility. In
connection with all aspects of each transaction contemplated hereby, each
Borrower and each other Loan Party acknowledges and agrees, and acknowledges
its
Affiliates’ understanding, that: (a) the credit facilities provided for
hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof
or of any other Loan Document) are an arm’s-length commercial transaction
between the Borrowers, the other Loan Parties and their respective Affiliates,
on the one hand, and the Administrative Agent and the Arrangers, on the other
hand, and the Borrowers and the other Loan Parties are capable of evaluating
and
understanding and understand and accept the terms, risks and conditions of
the
transactions contemplated hereby and by the other Loan Documents (including
any
amendment, waiver or other modification hereof or thereof); (b) in connection
with the process leading to such transaction, the Administrative Agent and
each
Arranger each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrowers, any other Loan Parties
or any of their respective Affiliates, stockholders, creditors or employees
or
any other Person; (c) neither the Administrative Agent nor any Arranger has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of any Borrower or any other Loan Party with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect
to
any amendment, waiver or other modification hereof or of any other Loan Document
(irrespective of whether the Administrative Agent or any Arranger has advised
or
is currently advising the Borrowers, the other Loan Parties or any of their
respective Affiliates on other matters) and neither the Administrative Agent
nor
any Arranger has any obligation to the Borrowers, the other Loan Parties or
any
of their respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Loan
Documents; (d) the Administrative Agent and the Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower, the other Loan Parties and
their respective Affiliates, and neither the Administrative Agent nor any
Arranger has any obligation to disclose any of such interests by virtue of
any
advisory, agency or fiduciary relationship; and (e) the Administrative Agent
and
the Arrangers have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of
any
other Loan Document) and each of the Borrower and the other Loan Parties has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate. Each Borrower and each other Loan Party hereby waives
and releases, to the fullest extent permitted by law, any claims that it may
have against the Administrative Agent and the Arrangers with respect to any
breach or alleged breach of agency or fiduciary duty.
104
10.17 USA
PATRIOT Act Notice.
Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA PATRIOT
Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of each Borrower
and
other information that will allow such Lender or the Administrative Agent,
as
applicable, to identify such Borrower in accordance with the Act.
10.18 Judgment
Currency.
If,
for the purposes of obtaining judgment in any court, it is necessary to convert
a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Borrower in respect of any
such
sum due from it to the Administrative Agent or the Lenders hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency
(the
“Judgment
Currency”)
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement
Currency”),
be discharged only to the extent that on the Business Day following receipt
by
the Administrative Agent of any sum adjudged to be so due in the Judgment
Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent from any Borrower in the Agreement Currency,
such Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent agrees to return the amount of any
excess to such Borrower (or to any other Person who may be entitled thereto
under applicable law).
105
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written
THERMO
ELECTRON CORPORATION
By:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
Title:
|
Treasurer
|
S-1
BANK
OF AMERICA, N.A.,
as
Administrative
Agent
By:
|
/s/ Xxxxx X. Xxxxx |
Name:
|
Xxxxx X. Xxxxx |
Title:
|
Assistant Vice President |
S-2
BANK
OF AMERICA, N.A.,
as
a Lender, L/C Issuer and Swing Line Lender
By:
|
/s/ Xxxxxxx X. Xxxxxxxx |
Name:
|
Xxxxxxx X. Xxxxxxxx |
Title:
|
Vice President |
S-3
BANC
OF AMERICA SECURITIES LLC,
as
Joint Lead Arranger and Book Manager
By:
|
/s/ K. Xxxxx Xxxxxx |
Name:
|
K. Xxxxx Xxxxxx |
Title:
|
Principal |
S-4
BARCLAYS
BANK PLC,
as
a Lender, L/C Issuer and Syndication Agent
By:
|
/s/ Xxxxx Xxxxxx |
Name:
|
Xxxxx Xxxxxx |
Title:
|
Associate Director |
S-5
BARCLAYS CAPITAL, as Joint Lead Arranger and Joint Book Manager
By:
|
/s/ Xxxxx Xxxxxx |
Name:
|
Xxxxx Xxxxxx |
Title:
|
Associate Director |
S-6
ABN
AMRO Bank NV,
as a Lender
By:
|
/s/ Xxxx Xxxxx |
Name:
|
Xxxx Xxxxx |
Title:
|
Managing Director |
By:
|
/s/ Xxxxx Xxxxxxxxxx |
Name:
|
Xxxxx Xxxxxxxxxx |
Title:
|
Director |
Deutsche
Bank AG New York Branch,
as a Lender
By:
|
/s/ Xxxxxxxxx X. Xxxxx |
Name:
|
Xxxxxxxxx X. Xxxxx |
Title:
|
Managing Director |
By:
|
/s/ Xxxx X. Xxx |
Name:
|
Xxxx X. Xxx |
Title:
|
Vice President |
XX
Xxxxxx Xxxxx Bank, N.A.,
as a Lender
By:
|
/s/ Xxxx Xxx Xxx |
Name:
|
Xxxx Xxx Xxx |
Title:
|
Vice President |
The
Bank of Nova Scotia,
as a Lender
By:
|
/s/ Xxxx X. Xxxxxxx |
Name:
|
Xxxx X. Xxxxxxx |
Title:
|
Managing Director |
The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch,
as a Lender
By:
|
/s/ Xxxxxxx Xxx |
Name:
|
Xxxxxxx Xxx |
Title:
|
Authorized Signatory |
S-7
BNP
Paribas,
as a Lender
By:
|
/s/ Xxxxxxx XxXxxxx |
Name:
|
Xxxxxxx XxXxxxx |
Title:
|
Director |
By:
|
/s/ Xxxx Xxxx |
Name:
|
Xxxx Xxxx |
Title:
|
Managing Director |
CALYON
NEW YORK BRANCH,
as a Lender
By:
|
/s/ Xxxxxx Xxxxxxxx |
Name:
|
Xxxxxx Xxxxxxxx |
Title:
|
Managing Director |
By:
|
/s/ Xxxxxxx Xxxx |
Name:
|
Xxxxxxx Xxxx |
Title:
|
Director |
HSBC
Bank USA, National Association,
as a Lender
By:
|
/s/ Xxxxxxx Xxxxxx |
Name:
|
Xxxxxxx Xxxxxx |
Title:
|
Managing Director |
KeyBank
National Association,
as a Lender
By:
|
/s/ Xxxx Xxxxxxxxxx |
Name:
|
Xxxx Xxxxxxxxxx |
Title:
|
Senior Vice President |
SUMITOMO
MITSUI BANKING CORPORATION,
as a Lender
By:
|
/s/ Xxxxxxx Xxxxx |
Name:
|
Xxxxxxx Xxxxx |
Title:
|
Joint General Manager |
S-8
Banca
Intesa S.p.A.,
as a Lender
By:
|
/s/ Xxxxx Xxxxxx |
Name:
|
Xxxxx Xxxxxx |
Title:
|
Vice President |
By:
|
/s/ Xxxxxxxxx XxXxxxx |
Name:
|
Xxxxxxxxx XxXxxxx |
Title:
|
Vice President |
Mizuho
Corporate Bank (USA),
as a Lender
By:
|
/s/ Xxxxxxxx Xxxx |
Name:
|
Xxxxxxxx Xxxx |
Title:
|
Senior Vice President |
ING
CAPITAL LLC,
as a Lender
By:
|
/s/ Xxxxxxx X. Xxxxxx, Xx. |
Name:
|
Xxxxxxx X. Xxxxxx, Xx. |
Title:
|
Managing Director |
XXXXXXX
STREET COMMITMENT CORPORATION (Recourse only to assets of Xxxxxxx Street
Commitment Corporation),
as a Lender
By:
|
/s/ Xxxx Xxxxxx |
Name:
|
Xxxx Xxxxxx |
Title:
|
Assistant Vice President |
Bank of China, New York Branch, as a Lender
By:
|
/s/ Xxxxxxxx Xx |
Name:
|
Xxxxxxxx Xx |
Title:
|
General Manager |
S-9
NORDEA
BANK FINLAND PLC,
as a Lender
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx |
Name:
|
Xxxxxx X. Xxxxxxxxxx |
Title:
|
Senior Vice President |
By:
|
/s/ Kraen Xxxx-Xxxxxxxxx |
Name:
|
Kraen Xxxx-Xxxxxxxxx |
Title:
|
Senior Vice President |
S-10
EXHIBIT
A
FORM
OF COMMITTED LOAN NOTICE
Date:
___________, _____
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of August 29, 2006 (as
amended, restated, extended, supplemented or otherwise modified in writing
from
time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Thermo
Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Barclays Bank PLC, as L/C Issuer.
The
Company hereby requests, on behalf of itself or, if applicable, the Designated
Borrower referenced in item 6 below (the “Applicable Designated
Borrower”)(select one):
1
|
On
______________________________
(a Business Day).
|
2.
|
In
the amount of $ ___________________.
|
3.
|
[Type
of Committed Loan requested]
|
4.
|
In
the following currency: ________________________
|
5.
|
For
Eurocurrency Rate Loans: with an Interest Period of ___
months.
|
6.
|
On
behalf of ____________________________ [insert name of
applicable Designated
Borrower].
|
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.
THERMO
ELECTRON CORPORATION
By:
|
|
Name:
|
|
Title:
|
A-1
Form of Committed Loan Notice
EXHIBIT
B
FORM
OF SWING LINE LOAN NOTICE
Date:
___________, _____
To:
|
Bank
of America, N.A., as Swing Line Lender
|
Bank of America, N.A., as Administrative Agent |
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of August 29, 2006 (as
amended, restated, extended, supplemented or otherwise modified in writing
from
time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Thermo
Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Barclays Bank PLC, as L/C Issuer.
The
undersigned hereby requests a Swing Line Loan:
1
|
On
______________________________
(a Business Day).
|
2.
|
In
the amount of $ ___________________.
|
The
Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section
2.04(a)
of the Agreement.
B-1
Form of Swing Line Loan Notice
EXHIBIT
C
FORM
OF NOTE
_______________________
FOR
VALUE RECEIVED, the undersigned (the “Borrower”)
hereby promises to pay to _____________________ or registered assigns (the
“Lender”),
in accordance with the provisions of the Agreement (as hereinafter defined),
the
principal amount of each Loan from time to time made by the Lender to the
Borrower under that certain Credit Agreement, dated as of August 29, 2006
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Thermo
Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Barclays Bank PLC, as L/C Issuer.
The
Borrower promises to pay interest on the unpaid principal amount of each Loan
from the date of such Loan until such principal amount is paid in full, at
such
interest rates and at such times as provided in the Agreement. Except as
otherwise provided in Section
2.04(f)
of the Agreement with respect to Swing Line Loans, all payments of principal
and
interest shall be made to the Administrative Agent for the account of the Lender
in the currency in which such Committed Loan was denominated and in Same Day
Funds at the Administrative Agent’s Office for such currency. If any amount is
not paid in full when due hereunder, such unpaid amount shall bear interest,
to
be paid upon demand, from the due date thereof until the date of actual payment
(and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.
This
Note is one of the Notes referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms
and
conditions provided therein. This Note is also entitled to the benefits of
the
[Company Guaranty][Subsidiary Guaranty]. Upon the occurrence and continuation
of
one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by
the
Lender shall be evidenced by one or more loan accounts or records maintained
by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount, currency and
maturity of its Loans and payments with respect thereto.
No
transfer by the Lender of any interest of the Lender in this Note or in the
right to receive any payments hereunder shall be effective unless and until
a
book entry of such transfer is made upon the Register referred to in the
Agreement.
The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.
C-1
Form of Note
THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK.
[THERMO
ELECTRON CORPORATION]
[OR]
[APPLICABLE
DESIGNATED BORROWER]
By:
|
|
Name:
|
|
Title:
|
C-2
Form of Note
LOANS
AND PAYMENTS WITH RESPECT THERETO
Date
|
Type
of Loan Made
|
Currency
and Amount of Loan Made
|
End
of Interest Period
|
Amount
of Principal or Interest Paid This Date
|
Outstanding
Principal Balance This Date
|
Notation
Made By
|
C-3
Form of Note
EXHIBIT
D
FORM
OF COMPLIANCE CERTIFICATE
Financial
Statement Date: __________ ,
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of August 29, 2006 (as
amended, restated, extended, supplemented or otherwise modified in writing
from
time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Thermo
Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Barclays Bank PLC, as L/C Issuer.
The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the _______________________________
of the Company, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Company,
and
that:
[Use
following paragraph 1 for fiscal year-end
financial statements]
1. Attached
hereto as Schedule
1
are the year-end audited financial statements required by Section
6.01(a)
of the Agreement for the fiscal year of the Company ended as of the above date,
together with the report and opinion of an independent certified public
accountant required by such section.
[Use
following paragraph 1 for fiscal quarter-end
financial statements]
1. Attached
hereto as Schedule
1
are the unaudited financial statements required by Section
6.01(b)
of the Agreement for the fiscal quarter of the Company ended as of the above
date. Such financial statements fairly present the financial condition, results
of operations and cash flows of the Company and its Subsidiaries in accordance
with GAAP as at such date and for such period, subject only to normal year-end
audit adjustments and the absence of footnotes; and
[select
one:]
[to
the best knowledge of the undersigned during such fiscal period, the Company
performed and observed each covenant and condition of the Loan Documents
applicable to it, and no Default exists.]
--or--
[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and
status:]
2. The
financial covenant analyses and information set forth on Schedule
2
attached hereto are true and accurate on and as of the date of this
Certificate.
THERMO
ELECTRON CORPORATION
By:
|
|
Name:
|
|
Title:
|
D-2
Form of Compliance Certificate
For
the Quarter/Year ended ___________________(“Statement
Date”)
SCHEDULE
2
to
the Compliance Certificate
($
in 000’s)
Consolidated
EBITDA
(in
accordance with the definition of Consolidated EBITDA
as
set forth in the Agreement)
Consolidated
EBITDA
|
Quarter
Ended
__________
|
Quarter
Ended
__________
|
Quarter
Ended
__________
|
Quarter
Ended
__________
|
Twelve
Months
Ended
__________
|
Consolidated
Net
Income
|
|||||
+ income
tax expense
|
|||||
+ interest
expense, amortization or writeoff of debt discount and debt issuance
costs
and commissions, discounts and other fees and charges associated
with
Indebtedness (including the Loans)
|
|||||
+ depreciation
and amortization expense
|
|||||
+ amortization
of intangibles and organization costs
|
|||||
+ any
extraordinary, unusual or non-recurring non-cash expenses or losses
(including, whether or not otherwise includable as a separate item
in the
statement of such Consolidated Net Income for such period, non-cash
losses
on sales of assets outside of the ordinary course of
business)
|
+ any
extraordinary, unusual or non-recurring cash expenses or losses to
the
extent they do not exceed, in the aggregate, $75,000,000 during such
period
|
|||||
+
stock-based compensation expense
|
|||||
+ cash
charges related to the Merger, including related integration costs
of the
Company and its Subsidiaries, in an aggregate amount not to exceed
$200,000,000
|
|||||
- interest
income
|
|||||
- any
extraordinary, unusual or non-recurring non-cash income or gains
(including, whether or not otherwise includable as a separate item
in the
statement of such Consolidated Net Income for such period, non-cash
gains
on the sales or assets outside of the ordinary course of
business)
|
|||||
- any
extraordinary, unusual or non-recurring cash income or gains to the
extent
they exceed, in the aggregate, $75,000,000 during such period
|
|||||
- income
tax credits (to the extent not netted from income tax
expense)
|
|||||
= Consolidated
EBITDA
|
D-4
Form of Compliance Certificate
A.
|
Indebtedness
of the Company and its Subsidiaries at Statement Date:
|
$___________
|
B.
|
Consolidated
EBITDA for the four consecutive fiscal quarters ending on
the Statement
Date (above):
|
$___________
|
C. |
Consolidated
Leverage Ratio (Line I.A ¸
Line I.B):
|
____________ |
D.
|
Maximum
Permitted Consolidated Leverage Ratio
|
3.0 to 1.0 |
D-5
Form of Compliance Certificate
EXHIBIT
E
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor identified in item 1
below ([the][each, an] “Assignor”) and [the][each] Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed
that the rights and obligations of [the Assignors][the Assignees] hereunder
are
several and not joint.]2. Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, restated, extended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated
herein by reference and made a part of this Assignment and Assumption as if
set
forth herein in full.
For
an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the
respective Assignors’] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement
and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including, without limitation,
the Letters of Credit and the Swing Line Loans included in such facilities)
and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity
as
a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law
or
in equity related to the rights and obligations sold and assigned pursuant
to
clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as
[the][an]
“Assigned
Interest”).
Each such sale and assignment is without recourse to [the][any] Assignor and,
except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor. Each such sale and assignment
must be recorded in the Register pursuant to Section 10.06(c) of the Credit
Agreement for such sale and assignment to be effective.
1. Assignor[s]: ______________________________
______________________________
___________________________
1 For
bracketed language here and elsewhere in this form relating to the Assignor(s),
if the assignment is from a single Assignor, choose the first bracketed
language. If the assignment is from multiple Assignors, choose the second
bracketed language.
2 Include
bracketed language if there are either multiple Assignors or multiple
Assignees.
E-1
Form of Assignment and Assumption
2. Assignee[s]: ______________________________
______________________________
[for
each Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]]
|
3. | Borrower(s): ______________________________ |
4. | Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement |
5. | Credit Agreement: Credit Agreement, dated as of August 29, 2006, among Thermo Electron Corporation, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender and Barclays Bank PLC, as L/C Issuer. |
6. Assigned Interest[s]:
Assignor[s]3
|
Assignee[s]4
|
Facility
Assigned5
|
Aggregate
Amount
of
Commitment
for
all Lenders6
|
Amount
of
Commitment
Assigned
|
Percentage
Assigned
of
Commitment7
|
CUSIP
Number
|
____________
|
$________________
|
$_________
|
____________%
|
|||
____________
|
$________________
|
$_________
|
____________%
|
|||
____________
|
$________________
|
$_________
|
____________%
|
[7. Trade
Date: __________________]8
Effective
Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
[Remainder
of page intentionally left blank.]
___________________________
3 List each Assignor, as appropriate.
4 List
each Assignee, as appropriate.
5
Fill
in the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. “Revolving Credit
Commitment”, “Term Loan Commitment”, etc.).
6
Amounts
in this column and in the column immediately to the right to be adjusted
by the
counterparties to take into account any payments or prepayments made between
the
Trade Date and the Effective Date.
7
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all
Lenders thereunder.
8
To
be completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.
The
terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME
OF ASSIGNOR]
By:
_____________________________
Title:
ASSIGNEE
[NAME
OF ASSIGNEE]
By:
_____________________________
Title:
[Consented
to and] Accepted:
BANK
OF AMERICA, N.A., as
Administrative
Agent
By:
_________________________________
Title:
[Consented
to:]
By:
_________________________________
Title:
E-3
Form of Assignment and Assumption
ANNEX
1 TO ASSIGNMENT AND ASSUMPTION
CREDIT
AGREEMENT DATED AS OF AUGUST 29, 2006,
AMONG
THERMO ELECTRON CORPORATION,
THE
DESIGNATED BORROWERS FROM
TIME
TO TIME PARTY THERETO, THE LENDERS FROM
TIME
TO TIME PARTY THERETO, BANK OF AMERICA, N.A., AS
ADMINISTRATIVE
AGENT, L/C ISSUER AND SWING LINE LENDER,
AND
BARCLAYS BANK PLC AS L/C ISSUER.
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1. Assignor.
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan
Document.
1.2. Assignee.
[The][Each] Assignee (a) represents and warrants that (i) it has full power
and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section
10.06(b)(iii),
(v),
(vi)
and (vii) of the Credit Agreement (subject to such consents, if any, as may
be
required under Section
10.06(b)(iii)
of the Credit Agreement), (iii) from and after the Effective Date, it shall
be
bound by the provisions of the Credit Agreement as a Lender thereunder and,
to
the extent of [the][the relevant] Assigned Interest, shall have the obligations
of a Lender thereunder, (iv) it is sophisticated with respect to decisions
to
acquire assets of the type represented by [the][such] Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire
[the][such] Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has
been
accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section
6.01
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi)
it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached hereto is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will,
independently and without reliance upon the Administrative Agent, [the][any]
Assignor or any other Lender, and based on such documents and information as
it
shall deem appropriate at the time, continue to make its own credit decisions
in
taking or not taking action under the Loan Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of
the
Loan Documents are required to be performed by it as a Lender.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of
principal, interest, fees and other amounts) to [the][the relevant] Assignor
for
amounts which have accrued to but excluding the Effective Date and to [the][the
relevant] Assignee for amounts which have accrued from and after the Effective
Date.
3. General
Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart
of
a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment
and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
E-5
Form of Assignment and Assumption
EXHIBIT
F
FORM
OF COMPANY GUARANTY
This
COMPANY GUARANTY (“Guaranty”)
is entered into as of August 29, 2006 by THERMO ELECTRON CORPORATION, a Delaware
corporation (the “Company”,
or the “Guarantor”)
in favor of and for the benefit of BANK OF AMERICA, N.A., as agent for and
representative of (in such capacity herein called the “Guarantied
Party”),
the financial institutions (the “Lenders”)
party to the Credit Agreement (as hereinafter defined; the terms defined
therein
and not otherwise defined herein being used herein as therein
defined).
WHEREAS,
the Company has entered into a Credit Agreement dated as of August 29, 2006
(as
it may hereafter be amended, restated, amended and restated, supplemented
or
otherwise modified from time to time, being the “Credit
Agreement”)
with the Lenders, the Guarantied Party, as Administrative Agent for the Lenders
and as Swing Line Lender, Bank of America, N.A. and Barclays Bank PLC, as
L/C
Issuers, Banc of America Securities LLC and Barclays Capital, as Joint Lead
Arrangers and Joint Book Managers, and Barclays Bank PLC, as Syndication
Agent,
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to the Company and the Foreign Subsidiaries of the Company that
become Designated Borrowers from time to time in accordance with the terms
of
the Credit Agreement (each, a “Designated
Borrower”
and, collectively, the “Designated
Borrowers”);
WHEREAS,
the Designated Borrowers may from time to time enter, or may from time to
time
have entered, into one or more Swap Contracts (each of such Swap Contracts
being
a “Lender
Swap Contract”
and, collectively, the “Lender
Swap Contracts”)
with one or more Persons that are Lenders or Affiliates of Lenders at the
time
such Lender Swap Contracts are entered into (in such capacity, each of such
Persons being a “Swap
Counterparty”
and, collectively, the “Swap
Counterparties”),
and it is desired that the obligations of the Designated Borrowers under
the
Lender Swap Contracts, including without limitation the obligation of any
Designated Borrower to make payments thereunder in the event of early
termination thereof, together with all obligations of the Designated Borrowers
under the Credit Agreement and the other Loan Documents, be guarantied
hereunder; and
WHEREAS,
the Guarantied Party, the Lenders and each Swap Counterparty for which the
Guarantied Party has received the notice required by Section
22
hereof are sometimes referred to herein as the “Beneficiaries”;
NOW
THEREFORE,
for value received, the sufficiency of which is hereby acknowledged, and
in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to the Designated Borrowers by
the
Beneficiaries and in consideration of any Lender Swap Contract entered into
heretofore or hereafter by and among any Designated Borrower and any Swap
Counterparty, the Guarantor hereby furnishes its guaranty of the Guarantied
Obligations (as hereinafter defined) as follows:
1. Guaranty.
In order to induce the Lenders to extend credit to the Company and in order
to
induce the Swap Counterparties to enter into the Lender Swap Contracts, the
Guarantor hereby absolutely and unconditionally guarantees, as a guaranty
of
payment and performance
and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by
required prepayment, upon
acceleration,
demand
or otherwise, and at all times thereafter, of
any and all existing and future Obligations of any Designated Borrower to
the
Beneficiaries and
any and all existing and future obligations of any Designated Borrower under
Lender Swap Contracts, in each case, now or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or
not
due, and however arising under or in connection with the Credit Agreement,
this
Guaranty, the other Loan Documents (including those arising under successive
borrowing transactions under the Credit Agreement and
all renewals, extensions and modifications thereof and all costs, attorneys’
fees and expenses incurred by the Beneficiaries in connection with the
collection or enforcement thereof payable in accordance with, and to the
extent
provided in Section 10.04 of the Credit Agreement) and any Lender Swap Contract
and whether recovery upon such indebtedness and liabilities may be or hereafter
become unenforceable or shall be an allowed or disallowed claim under any
proceeding or case
commenced by or against the Guarantor or any Designated
Borrower
under any Debtor Relief Law, and
including interest that accrues after the commencement by or against any
Designated Borrower of any proceeding under any Debtor Relief Laws (collectively,
the “Guarantied
Obligations”).
In
furtherance of the foregoing and without limiting the generality thereof,
the
Guarantor agrees that the Guarantor’s payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge the
Guarantor’s liability for any portion of the Guarantied Obligations that has not
been paid. The
books and records of each Beneficiary showing the amount of the Guarantied
Obligations shall be admissible in evidence in any action or proceeding,
and
shall be binding upon the Guarantor and conclusive for the purpose of
establishing the amount of the Guarantied Obligations absent manifest error.
This Guaranty shall not be affected by the genuineness, validity, regularity
or
enforceability of the Guarantied Obligations or any instrument or agreement
evidencing any Guarantied Obligations, or by the existence, validity,
enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating
to
the Guarantied Obligations which might otherwise constitute a defense to
the
obligations of the Guarantor under this Guaranty, and the Guarantor hereby
irrevocably waives any defenses it may now have or hereafter acquire in any
way
relating to any or all of the foregoing.
2. No
Setoff or Deductions; Taxes; Payments.
The Guarantor represents and warrants that it is organized and resident in
the
United States of America. The Guarantor shall make all payments hereunder
without setoff or counterclaim and free and clear of and without deduction
for
any taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or
taxing or other authority therein unless the Guarantor is compelled by law
to
make such deduction or withholding. If any such obligation (other than one
arising with respect to taxes based on or measured by the income or profits
of
any Beneficiary) is imposed upon the Guarantor with respect to any amount
payable by it hereunder, the Guarantor will pay to each Beneficiary, on the
date
on which such amount is due and payable hereunder, such additional amount
in
U.S. dollars as shall be necessary to enable the such Beneficiary to receive
the
same net amount which such Beneficiary would have received on such due date
had
no such obligation been imposed upon the Guarantor. The Guarantor will deliver
promptly to each Beneficiary certificates or other valid vouchers for all
taxes
or other charges deducted from or paid with respect to payments made by the
Guarantor hereunder. The
obligations of the Guarantor under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty. At
the applicable Beneficiary’s option, all payments under this Guaranty shall be
made in the United States. The obligations hereunder shall not be affected
by
any acts of any legislative body or governmental authority affecting any
Designated Borrower, including but not limited to, any restrictions on the
conversion of currency or repatriation or control of funds or any total or
partial expropriation of any Designated Borrower’s property, or by economic,
political, regulatory or other events in the countries where any Designated
Borrower is located.
F-2
Form of Company Guaranty
3. Rights
of Beneficiaries.
The
Guarantor consents and agrees that any Beneficiary may, at any time and from
time to time, without notice or demand, and without affecting the enforceability
or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms
of
the Guarantied Obligations or any part thereof; (b) take, hold, exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
security for the payment of this Guaranty or any Guarantied Obligations;
(c)
apply such security and direct the order or manner of sale thereof as such
Beneficiary in its reasonable discretion may determine; and (d) release or
substitute one or more of any endorsers or other guarantors of any of the
Guarantied Obligations. Without limiting the generality of the foregoing,
the
Guarantor consents to the taking of, or failure to take, any action which
might
in any manner or to any extent vary the risks of the Guarantor under this
Guaranty or which, but for this provision, might operate as a discharge of
the
Guarantor.
4. Certain
Waivers.
The Guarantor waives (a) any defense arising by reason of any disability
or
other defense of any Designated Borrower or any other guarantor, or the
cessation from any cause whatsoever (including any act or omission of any
Beneficiary) of the liability of any Designated Borrower; (b) any defense
based
on any claim that the Guarantor’s obligations exceed or are more burdensome than
those of any Designated Borrower; (c) the benefit of any statute of limitations
affecting the Guarantor’s liability hereunder; (d) any right to require any
Beneficiary to proceed against any Designated Borrower, proceed against or
exhaust any security for the Indebtedness, or pursue any other remedy in
such
Beneficiary’s power whatsoever; (e) any benefit of and any right to participate
in any security now or hereafter held by any Beneficiary; and (f)
to the fullest extent permitted by law, any and all other defenses or benefits
that may be derived from or afforded by applicable law limiting the liability
of
or exonerating guarantors or sureties.
The
Guarantor expressly waives all setoffs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guarantied
Obligations,
and all notices of acceptance of this Guaranty or of the existence, creation
or
incurrence of new or additional Guarantied
Obligations.
5. Obligations
Independent.
The obligations of the Guarantor hereunder are those of primary obligor,
and not
merely as surety, and are independent of the Guarantied Obligations
and the
obligations of any other guarantor, and a separate action may be brought
against
the Guarantor to enforce this Guaranty whether or not any Designated
Borrower
or any other person or entity is joined as a party.
F-3
Form of Company Guaranty
6. Subrogation.
The Guarantor shall not exercise any right of subrogation,
contribution,
indemnity, reimbursement
or similar rights with respect to any payments it makes under this
Guaranty until all of the Guarantied Obligations and any amounts payable
under
this Guaranty have been indefeasibly paid and performed in full and any
commitments of any Beneficiary or facilities provided by any Beneficiary
with
respect to the Guarantied Obligations are terminated. If any amounts are
paid to
the Guarantor in violation of the foregoing limitation, then such amounts
shall
be held in trust for the benefit of each Beneficiary and shall forthwith
be paid
to each Beneficiary to reduce the amount of the Guarantied Obligations, whether
matured or unmatured.
7. Termination;
Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Guarantied
Obligations now or hereafter existing and shall remain in full force and
effect
with respect to all Guarantied Obligations only until all Obligations under
the
Credit Agreement and the other Loan Documents and any other amounts payable
under this Guaranty are indefeasibly paid in full in cash and any commitments
of
any Beneficiary or facilities provided by any Beneficiary with respect to
the
Obligations under the Credit Agreement are terminated whether or not any
obligations of any Designated Borrower under any Lender Swap Contract remain
outstanding. Notwithstanding the foregoing, this Guaranty shall continue
in
full force and effect or
be revived,
as the case may be, if
any payment by or on behalf of any Designated
Borrower
or the Guarantor is made, or any Beneficiary exercises its right of setoff,
in respect of the Guarantied Obligations
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set
aside
or required (including pursuant to any settlement entered into by such
Beneficiary in its discretion) to be repaid to a trustee, receiver or any
other
party, in connection with any proceeding under any Debtor Relief Laws or
otherwise,
all as if such payment had not been made or
such setoff had not occurred and
whether or not the Guarantied Party is in possession of or has released this
Guaranty and regardless of any prior revocation, rescission, termination
or
reduction.
8. Subordination.
The Guarantor hereby subordinates the payment of all obligations and
indebtedness of the Designated
Borrowers
owing to the Guarantor (including any obligation or indebtedness of any
Designated Borrower owing to the Guarantor as subrogee of any Beneficiary
in
respect of any Guarantied Obligations), whether now existing or hereafter
arising and in each case resulting from the Guarantor’s performance under this
Guaranty, to the indefeasible payment in full in cash of all Guarantied
Obligations.
9. Stay
of Acceleration.
In the event that acceleration of the time for payment of any of the Guarantied
Obligations is stayed, in connection with any case commenced by or against
the
Guarantor or any Designated
Borrower
under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless
be payable by the Guarantor immediately upon demand by the Guarantied Party.
10. Expenses.
The Guarantor shall pay on demand all out-of-pocket expenses incurred by
any
Beneficiary (including Attorney Costs of any Beneficiary) in connection with
the
enforcement or protection of any Beneficiary’s rights under this Guaranty or in
respect of the Guarantied Obligations, including any incurred during
any “workout” or restructuring in respect of the Guarantied Obligations and any
incurred in
the preservation, protection or enforcement of any rights of any Beneficiary
in
any proceeding
under any Debtor Relief Laws.
The obligations of the Guarantor under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty.
F-4
Form of Company Guaranty
11. Miscellaneous.
No provision of this Guaranty may
be waived, amended, supplemented or modified, except by a written instrument
executed by the Guarantied Party and the Guarantor. No failure by any
Beneficiary to exercise, and no delay in exercising, any right, remedy or
power
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right,
power or remedy.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law or in equity. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity
of
any other provision herein. Unless
otherwise agreed by the Guarantied Party and the Guarantor in writing, this
Guaranty is not intended to supersede or otherwise affect any other guaranty
now
or hereafter given by the Guarantor for the benefit of the Beneficiaries
or any
term or provision thereof.
12. Condition
of Designated Borrowers. The
Guarantor acknowledges and agrees that it has the sole responsibility for,
and
has adequate means of, obtaining from each Designated Borrower and
any other guarantor such
information concerning the financial condition, business and operations of
such
Designated
Borrower
and
any such other guarantor as
the Guarantor requires, and that the Beneficiaries have no duty, and the
Guarantor is not relying on the Beneficiaries at any time, to disclose to
the
Guarantor any information relating to the business, operations or financial
condition of any Designated
Borrower
or any other guarantor (the guarantor waiving any duty on the part of the
Beneficiaries to disclose such information and any defense relating to the
failure to provide the same).
13. Setoff.
If and to the extent any payment is not made when
due hereunder, any Beneficiary may setoff and charge from time to time any
amount so due against any or all of the Guarantor’s accounts or deposits with
such Beneficiary.
14. Representations
and Warranties.
The Guarantor represents and warrants that (a) it is duly organized or formed,
validly existing and, as applicable, in good standing under the laws of the
jurisdiction of its
incorporation or organization and has all requisite power and authority
to execute,
deliver and perform its obligations under this
Guaranty, and all necessary authority has been obtained; (b) this Guaranty
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms; (c) the making and performance of this Guaranty does not
and
will not violate in any material respect the provisions of any applicable
law,
regulation or order, and does not and will not result in the breach of, or
constitute a default or require any consent under, any material agreement,
instrument, or document to which it is a party or by which it or any of its
property may be bound or affected; and (d) all requisite governmental licenses,
authorizations, consents and approvals for the execution, delivery and
performance of this Guaranty have been obtained or made and are in full force
and effect;
except
in each case referred to in clause (a) or (c), to the extent that such failure
to do so or such contravention, as the case may be, could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
F-5
Form of Company Guaranty
15. Indemnification
and Survival. Without
limitation of its indemnification obligations under the other Loan Documents
or
under any Lender Swap Contract, the Guarantor agrees to indemnify and hold
harmless the Guarantied Party and the other Indemnitees from and against
(and
will reimburse each Indemnitee as the same are incurred for) any and
all
claims, damages,
losses, liabilities and expenses (including Attorney
Costs
and all fees and time charges and disbursements for attorneys who may be
employees of any Indemnitee),
in each case, arising out of
or in connection with
or by reason of (including in connection with any investigation, litigation
or
proceeding or preparation of a defense in connection therewith) the
execution or delivery of this Guaranty, any other Loan Document or any Lender
Swap Contract or any agreement or instrument contemplated hereby and thereby
or,
in the case of the Guarantied Party and its Related Parties only, the
administration of this Guaranty and the other Loan Documents except to the
extent such claim, damage, loss, liability or expense is found to have resulted
from such Indemnitees’ gross negligence or willful misconduct. The Guarantor
agrees that no Indemnitee shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Guarantor or its Subsidiaries or
Affiliates or the Guarantor’s respective equity holders or creditors arising out
of, related to or in connection with any aspect of the transactions contemplated
hereby, except to the extent of direct, as opposed to special, indirect,
consequential or punitive, damages determined to have resulted from such
Indemnitee’s gross negligence, breach of contract or willful misconduct.
Notwithstanding any other provision of this Guaranty, no Indemnitee shall
be
liable for any damages arising from the use by others of information or other
materials obtained through electronic telecommunications or other information
transmission systems other than damages resulting from its gross negligence,
breach of contract or willful misconduct. If legally permitted, any Indemnitee
shall promptly notify the Guarantor in writing of any claim or action by
a third
party for which the Indemnitee plans to seek indemnification hereunder;
provided
that no failure or delay by any Indemnitee to so provide such notice shall
relieve the Guarantor from any liability or obligation hereunder except to
the
extent of any prejudice, damage or liability caused by or arising out of
such
delay or failure. The Guarantor shall have the right to control the defense
or
settlement of any such claim or action and to select counsel with respect
thereto, which counsel shall be subject to the approval of the Indemnitee
(such
approval not to be unreasonably withheld or delayed); provided,
however,
that the Guarantor shall not consent to any settlement or to the entry of
any
judgment with respect to such claim or action that does not include a complete
release of the Indemnitee from all liability with respect thereto or which
imposes any liability or obligation on the Indemnitee without the prior written
consent of the Indemnitee. Notwithstanding the Guarantor’s right to appoint
counsel to represent the Indemnitee in an action, the Indemnitee shall have
the
right to employ separate counsel (including local counsel) if (i) the use
of
counsel chosen by the Guarantor to represent the Indemnitee would present
such
counsel with a conflict of interest or (ii) the Guarantor shall not have
employed counsel satisfactory to the Indemnitee to represent the Indemnitee
within a reasonable time after notice of the institution of such action.
It is
understood that the Guarantor shall not, in connection with any action or
claim
or related actions or claims, be liable for fees and expenses of more than
one
primary such separate counsel (and at least one local counsel in each affected
jurisdiction to the extent reasonably necessary) for all of the Indemnitees.
The
obligations of the Guarantor under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty.
F-6
Form of Company Guaranty
16. GOVERNING
LAW; ASSIGNMENT;
JURISDICTION;
NOTICES.
THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
This
Guaranty shall (a) bind the Guarantor and its successors and assigns, provided
that the Guarantor may not assign its rights or obligations under this Guaranty
without the prior written consent of the Beneficiaries (and any attempted
assignment without such consent shall be void), and (b) inure to the benefit
of
each Beneficiary and its successors and assigns and each Beneficiary may,
without notice to the Guarantor and without affecting the Guarantor’s
obligations hereunder, assign, sell or grant participations in the Guarantied
Obligations and this Guaranty, in whole or in part.
THE
GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES
THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY
BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT ANY
BENEFICIARY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO
THIS GUARANTY AGAINST THE GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
THE
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO
THIS GUARANTY IN ANY COURT REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH
OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
F-7
Form of Company Guaranty
The
Guarantor agrees that any Beneficiary may disclose to any assignee of or
participant in, or any prospective assignee of or participant in, any of
its
rights or obligations of all or part of the Guarantied Obligations any and
all
information in such Beneficiary’s possession concerning the Guarantor, this
Guaranty and any security for this Guaranty. All notices and other
communications to the Guarantor under this Guaranty shall be provided in
the
manner set forth for notices in Section 10.02 of the Credit
Agreement.
17. WAIVER
OF JURY TRIAL; FINAL AGREEMENT.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE
MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
THIS
GUARANTY CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER
HEREOF.
18. Foreign
Currency. If,
for the purposes of obtaining judgment in any court, it is necessary to convert
a sum due under this Guaranty in one currency into another currency, the
rate of
exchange used shall be that at which in accordance with normal banking
procedures the applicable Beneficiary could purchase the first currency with
such other currency on the Business Day preceding that on which final judgment
is given. The obligation of the Guarantor in respect of any such sum due
from it
to any Beneficiary under this Guaranty shall, notwithstanding any judgment
in a
currency (the “Judgment
Currency”)
other than that in which such sum is denominated in accordance with the
applicable provisions of this Guaranty (the “Obligations
Currency”),
be discharged only to the extent that on the Business Day following receipt
by
any such Beneficiary of any sum adjudged to be so due in the Judgment Currency,
such Beneficiary may in accordance with normal banking procedures purchase
the
Obligations Currency with the Judgment Currency. If the amount of the
Obligations Currency so purchased is less than the sum originally due to
such
Beneficiary from the Guarantor in the Obligations Currency, the Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Beneficiary to whom such obligation was owing against such
loss.
If the amount of the Obligations Currency so purchased is greater than the
sum
originally due to such Beneficiary in such currency, such Beneficiary agrees
to
return the amount of any excess to the Guarantor.
19. Guarantied
Party as Agent.
The Guarantied Party has been appointed to act as the Guarantied Party hereunder
by Lenders. The Guarantied Party shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely
in
accordance with this Guaranty and the Credit Agreement; provided
that the Guarantied Party shall exercise, or refrain from exercising, any
remedies under or with respect to this Guaranty in accordance with the
instructions of the Required Lenders or all Lenders, as the case may be,
in
accordance with the terms of the Credit Agreement.
F-8
Form of Company Guaranty
The
Guarantied Party shall at all times be the same Person that is the
Administrative Agent under the Credit Agreement. Written notice of resignation
by the Administrative Agent pursuant to Section 9.06 of the Credit Agreement
shall also constitute notice of resignation as the Guarantied Party under
this
Guaranty; and appointment of a successor Administrative Agent (after resignation
or removal) pursuant to Section 9.06 of the Credit Agreement shall also
constitute appointment of a successor Guarantied Party under this Guaranty.
Upon
the acceptance of any appointment as the Administrative Agent under Section
9.06
of the Credit Agreement by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring or removed Guarantied
Party under this Guaranty, and the retiring or removed Guarantied Party under
this Guaranty shall promptly (a) transfer to such successor Guarantied Party
all
sums held hereunder, together with all records and other documents necessary
or
appropriate in connection with the performance of the duties of the successor
Guarantied Party under this Guaranty, and (b) take such other actions as
may be
necessary or appropriate in connection with the assignment to such successor
Guarantied Party of the rights created hereunder, whereupon such retiring
Guarantied Party shall be discharged from its duties and obligations under
this
Guaranty. After any retiring Guarantied Party’s resignation hereunder as the
Guarantied Party, the provisions of this Guaranty shall inure to its benefits
as
to any actions taken or omitted to be taken by it under this Guaranty while
it
was the Guarantied Party hereunder.
20. Counterparts;
Effectiveness. This
Guaranty may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original for all purposes; but all such
counterparts together shall constitute but one and the same instrument. This
Guaranty shall become effective as to the Guarantor upon the execution of
a
counterpart hereof by the Guarantor and receipt by the Guarantied Party of
written or telephonic notification of such execution and authorization of
delivery thereof.
21. Application
of Funds.
Except as expressly provided elsewhere in this Guaranty, all proceeds received
by the Beneficiaries on account of the Guarantied Obligations from the Guarantor
shall be applied to the payment of all Guarantied Obligations (for the ratable
benefit of the holders thereof) and, as to Obligations arising under the
Credit
Agreement, as provided in Section 8.03 of the Credit Agreement.
22. Notice
of Lender Swap Contracts. The
Guarantied Party shall not be deemed to have any duty whatsoever with respect
to
any Swap Counterparty until it shall have received written notice in form
and
substance satisfactory to the Guarantied Party from the Designated Borrowers,
the Guarantor or the applicable Swap Counterparty as to the existence and
terms
of the applicable Lender Swap Contracts.
F-9
Form of Company Guaranty
IN
WITNESS WHEREOF,
the Guarantor and, solely for purposes of the waiver of the right to jury
trial
contained in Section
17
hereof, the Guarantied Party have caused this Guaranty to be duly executed
and
delivered by their respective officers thereunto duly authorized as of the
date
hereof.
THERMO
ELECTRON CORPORATION,
as Guarantor
By:
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Treasurer
Address:
BANK
OF AMERICA, N.A.,
as Administrative Agent, as Guarantied Party
By:
Name:
Xxxxx X. Xxxxx
Title:
Assistant Vice President
S-1
EXHIBIT
G
FORM
OF SUBSIDIARY GUARANTY
This
SUBSIDIARY GUARANTY (“Guaranty”)
is entered into as of [_______ __], 20__ by XXXXXX SCIENTIFIC INTERNATIONAL,
INC., a Delaware corporation (the “Guarantor”
and, together with any additional Domestic Subsidiaries of the Company (as
defined below) executing this Guaranty after the date hereof pursuant to
Section
17
hereof, collectively, the “Guarantors”),
in favor of and for the benefit of BANK OF AMERICA, N.A., as agent for and
representative of (in such capacity herein called the “Guarantied Party”), the
financial institutions (the “Lenders”)
party to the Credit Agreement (as hereinafter defined; the terms defined therein
and not otherwise defined herein being used herein as therein defined).
R
E C I T A L S
WHEREAS,
Thermo Electron Corporation, a Delaware corporation (the “Company”),
has entered into a Credit Agreement dated as of August 29, 2006 (as it may
hereafter be amended, restated, amended and restated, supplemented or otherwise
modified from time to time, being the “Credit
Agreement”)
with the Lenders, the Guarantied Party as Administrative Agent for the Lenders
and as Swing Line Lender, Bank of America, N.A. and Barclays Bank PLC, as L/C
Issuers, Banc of America Securities LLC and Barclays Capital, as Joint Lead
Arrangers and Joint Book Managers, and Barclays Bank PLC, as Syndication Agent,
pursuant to which Lenders have made certain commitments, subject to the terms
and conditions set forth in the Credit Agreement, to extend certain credit
facilities to the Company and the Foreign Subsidiaries of the Company that
become Designated Borrowers from time to time in accordance with the terms
of
the Credit Agreement (with the Company, each a “Borrower”
and, collectively, the “Borrowers”);
WHEREAS,
the Borrowers may from time to time enter, or may from time to time have
entered, into one or more Swap Contracts (each of such Swap Contracts being
a
“Lender
Swap Contract”
and, collectively, the “Lender
Swap Contracts”)
with one or more Persons that are Lenders or Affiliates of Lenders at the time
such Lender Swap Contracts are entered into (in such capacity, each of such
Persons being a “Swap
Counterparty”
and, collectively, the “Swap
Counterparties”),
and it is desired that the obligations of the Borrowers under the Lender Swap
Contracts, including without limitation the obligation of any Borrower to make
payments thereunder in the event of early termination thereof, together with
all
obligations of the Borrowers under the Credit Agreement and the other Loan
Documents, be guarantied hereunder; and
WHEREAS,
the Guarantied Party, the Lenders and each Swap Counterparty for which the
Guarantied Party has received the notice required by Section
25
hereof are sometimes referred to herein as the “Beneficiaries”;
NOW
THEREFORE,
for value received, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to the Borrowers by the
Beneficiaries and in consideration of any Lender Swap Contract entered into
heretofore or hereafter by and among any Borrower and any Swap Counterparty,
each Guarantor hereby furnishes its guaranty of the Guarantied Obligations
(as
hereinafter defined) as follows:
1. Guaranty.
(a) In order to induce the Lenders to extend credit to the Company and in order
to induce the Swap Counterparties to enter into the Lender Swap Contracts,
each
Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of
payment and performance
and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by
required prepayment, upon
acceleration,
demand
or otherwise, and at all times thereafter, of
any and all
existing and future Obligations of any Borrower to the Beneficiaries and any
and
all existing and future obligations of any Borrower under Lender Swap Contracts,
in each case, now or hereafter made, incurred or created, whether absolute
or
contingent, liquidated or unliquidated, whether due or not due, and however
arising under or in connection with the Credit Agreement, this Guaranty, the
other Loan Documents (including those arising under successive borrowing
transactions under the Credit Agreement and
all renewals, extensions and modifications thereof and all costs, attorneys’
fees and expenses incurred by the Beneficiaries in connection with the
collection or enforcement thereof payable in accordance with, and to the extent
provided in Section 10.04 of the Credit Agreement) and any Lender Swap Contract
and whether recovery upon such indebtedness and liabilities may be or hereafter
become unenforceable or shall be an allowed or disallowed claim under any
proceeding or case
commenced by or against any Guarantor or any Borrower under any Debtor Relief
Law, and
including interest that accrues after the commencement by or against any
Borrower of any proceeding under any Debtor Relief Laws (collectively,
the “Guarantied
Obligations”).
In
furtherance of the foregoing and without limiting the generality thereof, each
Guarantor agrees that any Guarantor’s payment of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge any
Guarantor’s liability for any portion of the Guarantied Obligations that has not
been paid. The
books and records of each Beneficiary showing the amount of the Guarantied
Obligations shall be admissible in evidence in any action or proceeding, and
shall be binding upon the Guarantors and conclusive for the purpose of
establishing the amount of the Guarantied Obligations absent manifest error.
This Guaranty shall not be affected by the genuineness, validity, regularity
or
enforceability of the Guarantied Obligations or any instrument or agreement
evidencing any Guarantied Obligations, or by the existence, validity,
enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating
to
the Guarantied Obligations which might otherwise constitute a defense to the
obligations of each Guarantor under this Guaranty, and each Guarantor hereby
irrevocably waives any defenses it may now have or hereafter acquire in any
way
relating to any or all of the foregoing.
(b)
Anything
contained in this Guaranty to the contrary notwithstanding, the obligations
of
each Guarantor under this Guaranty, the other Loan Documents and any Lender
Swap
Contract shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
as a
fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code
or
any applicable provisions of comparable state law (collectively, the
“Fraudulent
Transfer Laws”),
in each case after giving effect to all other liabilities of such Guarantor,
contingent or otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Guarantor (i) in
respect of intercompany indebtedness to the Company or other Affiliates of
the
Company to the extent that such indebtedness would be discharged in an amount
equal to the amount paid by such Guarantor hereunder and (ii) under any guaranty
of subordinated Indebtedness which guaranty contains a limitation as to maximum
amount similar to that set forth in this Section 1(b), pursuant to which the
liability of such Guarantor hereunder is included in the liabilities taken
into
account in determining such maximum amount) and after giving effect as assets
to
the value (as determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, reimbursement, indemnification
or
contribution of such Guarantor pursuant to applicable law or pursuant to the
terms of any agreement.
G-2
Form of Subsidiary Guaranty
(c) The
Guarantors desire to allocate among themselves, in a fair and equitable manner,
their obligations arising under this Guaranty. Accordingly, in the event any
payment or distribution is made on any date by a Guarantor under this Guaranty,
each such Guarantor shall be entitled to a contribution from each of the other
Guarantors in the maximum amount permitted by law so as to maximize the
aggregate amount of the Guarantied Obligations paid to the
Beneficiaries.
2. Representations
and Warranties.
Each Guarantor makes, for the benefit of the Lenders under the Credit Agreement,
each of the representations and warranties made in the Credit Agreement by
the
Company as to such Guarantor, its assets, financial condition, operations,
organization, legal status, business and in the Loan Documents to which it
is a
party.
3. Covenants.
Unless the Required Lenders or all Lenders, as the case may be, shall otherwise
consent in writing in accordance with the terms of the Credit Agreement, each
Guarantor agrees that, so long as any part of the Obligations under the Credit
Agreement shall remain unpaid, any Letter of Credit shall be outstanding or
any
Lender shall have any Commitment, such Guarantor shall, and shall cause each
of
its Subsidiaries to, perform or observe all of the terms, covenants and
agreements that the Loan Documents state that the Company is to cause such
Guarantor and such Subsidiaries to perform or observe.
4. No
Setoff or Deductions; Taxes; Payments.
Each Guarantor represents and warrants that it is organized and resident in
the
United States of America. Each Guarantor shall make all payments hereunder
without setoff or counterclaim and free and clear of and without deduction
for
any taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision thereof
or
taxing or other authority therein unless such Guarantor is compelled by law
to
make such deduction or withholding. If any such obligation (other than one
arising with respect to taxes based on or measured by the income or profits
of
any Beneficiary) is imposed upon any Guarantor with respect to any amount
payable by it hereunder, such Guarantor will pay to each Beneficiary, on the
date on which such amount is due and payable hereunder, such additional amount
in U.S. dollars as shall be necessary to enable the such Beneficiary to receive
the same net amount which such Beneficiary would have received on such due
date
had no such obligation been imposed upon such Guarantor. Each Guarantor will
deliver promptly to each Beneficiary certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made
by such Guarantor hereunder. The
obligations of the Guarantors under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty. At
the applicable Beneficiary’s option, all payments under this Guaranty shall be
made in the United States. The obligations hereunder shall not be affected
by
any acts of any legislative body or governmental authority affecting any
Borrower, including but not limited to, any restrictions on the conversion
of
currency or repatriation or control of funds or any total or partial
expropriation of any Borrower’s property, or by economic, political, regulatory
or other events in the countries where any Borrower is located.
G-3
Form of Subsidiary Guaranty
5. Rights
of Beneficiaries.
Each
Guarantor consents and agrees that any Beneficiary may, at any time and from
time to time, without notice or demand, and without affecting the enforceability
or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms
of
the Guarantied Obligations or any part thereof; (b) take, hold, exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
security for the payment of this Guaranty or any Guarantied Obligations; (c)
apply such security and direct the order or manner of sale thereof as such
Beneficiary in its reasonable discretion may determine; and (d) release or
substitute one or more of any endorsers or other guarantors of any of the
Guarantied Obligations. Without limiting the generality of the foregoing, each
Guarantor consents to the taking of, or failure to take, any action which might
in any manner or to any extent vary the risks of such Guarantor under this
Guaranty or which, but for this provision, might operate as a discharge of
such
Guarantor.
6. Certain
Waivers.
Each Guarantor waives (a) any defense arising by reason of any disability or
other defense of any Borrower or any other guarantor, or the cessation from
any
cause whatsoever (including any act or omission of any Beneficiary) of the
liability of any Borrower; (b) any defense based on any claim that such
Guarantor’s obligations exceed or are more burdensome than those of any
Borrower; (c) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder; (d) any right to require any Beneficiary to
proceed against any Borrower, proceed against or exhaust any security for the
Indebtedness, or pursue any other remedy in such Beneficiary’s power whatsoever;
(e) any benefit of and any right to participate in any security now or hereafter
held by any Beneficiary; and (f)
to the fullest extent permitted by law, any and all other defenses or benefits
that may be derived from or afforded by applicable law limiting the liability
of
or exonerating guarantors or sureties.
Each
Guarantor expressly waives all setoffs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guarantied
Obligations,
and all notices of acceptance of this Guaranty or of the existence, creation
or
incurrence of new or additional Guarantied
Obligations.
7. Obligations
Independent.
The obligations of each Guarantor hereunder are those of primary obligor, and
not merely as surety, and are independent of the Guarantied
Obligations
and the
obligations of any other guarantor, and a separate action may be brought against
any Guarantor to enforce this Guaranty whether or not any Borrower or any other
person or entity is joined as a party.
8. Subrogation.
No Guarantor shall exercise any right of subrogation, contribution,
indemnity, reimbursement
or similar rights with respect to any payments it makes under this
Guaranty until all of the Guarantied Obligations and any amounts payable under
this Guaranty have been indefeasibly paid and performed in full and any
commitments of each Beneficiary or facilities provided by each Beneficiary
with
respect to the Guarantied Obligations are terminated. If any amounts are paid
to
any Guarantor in violation of the foregoing limitation, then such amounts shall
be held in trust for the benefit of each Beneficiary and shall forthwith be
paid
to each Beneficiary to reduce the amount of the Guarantied Obligations, whether
matured or unmatured.
G-4
Form of Subsidiary Guaranty
9. Termination;
Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Guarantied
Obligations now or hereafter existing and shall remain in full force and effect
with respect to all Guarantied Obligations only until all Obligations under
the
Credit Agreement and the other Loan Documents and any other amounts payable
under this Guaranty are indefeasibly paid in full in cash and any commitments
of
any Beneficiary or facilities provided by any Beneficiary with respect to the
Obligations under the Credit Agreement are terminated whether or not any
obligations of any Borrower under any Lender Swap Contract remain outstanding.
Notwithstanding the foregoing, this Guaranty shall continue in
full force and effect or
be revived,
as the case may be, if
any payment by or on behalf of any Borrower or any Guarantor is made, or any
Beneficiary exercises its right of setoff,
in respect of the Guarantied Obligations
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by such
Beneficiary in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Laws or
otherwise,
all as if such payment had not been made or
such setoff had not occurred and
whether or not the Guarantied Party is in possession of or has released this
Guaranty and regardless of any prior revocation, rescission, termination or
reduction.
10. Subordination.
Each Guarantor hereby subordinates the payment of all obligations and
indebtedness of the Borrowers owing to such Guarantor (including any obligation
or indebtedness of any Borrower owing to such Guarantor as subrogee of any
Beneficiary in respect of any Guarantied Obligations), whether now existing
or
hereafter arising and in each case resulting from any Guarantor’s performance
under this Guaranty, to the indefeasible payment in full in cash of all
Guarantied Obligations.
11. Stay
of Acceleration.
In the event that acceleration of the time for payment of any of the Guarantied
Obligations is stayed, in connection with any case commenced by or against
any
Guarantor or any Borrower under any Debtor Relief Laws, or otherwise, all such
amounts shall nonetheless be payable by each Guarantor immediately upon demand
by the Guarantied Party.
12. Expenses.
Each Guarantor shall pay on demand all out-of-pocket expenses incurred by any
Beneficiary (including Attorney Costs of any Beneficiary) in connection with
the
enforcement or protection of any Beneficiary’s rights under this Guaranty or in
respect of the Guarantied Obligations, including any incurred during
any “workout” or restructuring in respect of the Guarantied Obligations and any
incurred in
the preservation, protection or enforcement of any rights of any Beneficiary
in
any proceeding
under any Debtor Relief Laws.
The obligations of each Guarantor under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty.
G-5
Form of Subsidiary Guaranty
13. Miscellaneous.
No provision of this Guaranty may
be waived, amended, supplemented or modified, except by a written instrument
executed by the Guarantied Party and each Guarantor. No failure by any
Beneficiary to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power hereunder preclude any other or further
exercise thereof or the exercise of any other right,
power or remedy.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law or in equity. The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity
of
any other provision herein. Unless
otherwise agreed by the Guarantied Party and each Guarantor in writing, this
Guaranty is not intended to supersede or otherwise affect any other guaranty
now
or hereafter given by such Guarantor for the benefit of the Beneficiaries or
any
term or provision thereof.
14. Condition
of Borrowers. Each
Guarantor acknowledges and agrees that it has the sole responsibility for,
and
has adequate means of, obtaining from each Borrower and
any other guarantor such
information concerning the financial condition, business and operations of
such
Borrower and
any such other guarantor as
such Guarantor requires, and that the Beneficiaries have no duty, and such
Guarantor is not relying on the Beneficiaries at any time, to disclose to such
Guarantor any information relating to the business, operations or financial
condition of any Borrower
or any other guarantor (the guarantor waiving any duty on the part of the
Beneficiaries to disclose such information and any defense relating to the
failure to provide the same).
15. Setoff.
If and to the extent any payment is not made when
due hereunder, any Beneficiary may setoff and charge from time to time any
amount so due against any or all of each Guarantor’s accounts or deposits with
such Beneficiary.
16. Indemnification
and Survival. Without
limitation of its indemnification obligations under the other Loan Documents
or
under any Lender Swap Contract, each Guarantor agrees to indemnify and hold
harmless the Guarantied Party and the other Indemnitees from and against
(and
will reimburse each Indemnitee as the same are incurred for) any and
all
claims, damages,
losses, liabilities and expenses (including Attorney
Costs
and all fees and time charges and disbursements for attorneys who may be
employees of any Indemnitee),
in each case, arising out of
or in connection with
or by reason of (including in connection with any investigation, litigation
or
proceeding or preparation of a defense in connection therewith) the
execution or delivery of this Guaranty, any other Loan Document or any Lender
Swap Contract or any agreement or instrument contemplated hereby and thereby
or,
in the case of the Guarantied Party and its Related Parties only, the
administration of this Guaranty and the other Loan Documents except to the
extent such claim, damage, loss, liability or expense is found to have resulted
from such Indemnitees’ gross negligence or willful misconduct. Each Guarantor
agrees that no Indemnitee shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to such Guarantor or its Subsidiaries or
Affiliates or such Guarantor’s respective equity holders or creditors arising
out of, related to or in connection with any aspect of the transactions
contemplated hereby, except to the extent of direct, as opposed to special,
indirect, consequential or punitive, damages determined to have resulted from
such Indemnitee’s gross negligence, breach of contract or willful misconduct.
Notwithstanding any other provision of this Guaranty, no Indemnitee shall be
liable for any damages arising from the use by others of information or other
materials obtained through electronic telecommunications or other information
transmission systems other than damages resulting from its gross negligence,
breach of contract or willful misconduct. If legally permitted, any Indemnitee
shall promptly notify each Guarantor in writing of any claim or action by a
third party for which the Indemnitee plans to seek
G-6
Form of Subsidiary Guaranty
indemnification
hereunder; provided
that no failure or delay by any Indemnitee to so provide such notice shall
relieve any Guarantor from any liability or obligation hereunder except to
the
extent of any prejudice, damage or liability caused by or arising out of such
delay or failure. Each Guarantor shall have the right to control the defense
or
settlement of any such claim or action and to select counsel with respect
thereto, which counsel shall be subject to the approval of the Indemnitee (such
approval not to be unreasonably withheld or delayed); provided,
however,
that no Guarantor shall consent to any settlement or to the entry of any
judgment with respect to such claim or action that does not include a complete
release of the Indemnitee from all liability with respect thereto or which
imposes any liability or obligation on the Indemnitee without the prior written
consent of the Indemnitee. Notwithstanding each Guarantor’s right to appoint
counsel to represent the Indemnitee in an action, the Indemnitee shall have
the
right to employ separate counsel (including local counsel) if (i) the use of
counsel chosen by any Guarantor to represent the Indemnitee would present such
counsel with a conflict of interest or (ii) no Guarantor shall have employed
counsel satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after notice of the institution of such action. It is understood
that no Guarantor shall, in connection with any action or claim or related
actions or claims, be liable for fees and expenses of more than one primary
such
separate counsel (and at least one local counsel in each affected jurisdiction
to the extent reasonably necessary) for all of the Indemnitees. The
obligations of each Guarantor under this section shall survive the
payment in full of the Guarantied Obligations and termination
of this Guaranty.
17. Additional
Guarantors.
The initial Guarantors hereunder shall be such of the Subsidiaries of the
Company as are signatories hereto on the date hereof. From time to time
subsequent to the date hereof, other Subsidiaries of the Company may become
parties hereto, as additional Guarantors (each an “Additional
Guarantor”),
by executing a counterpart of this Guaranty in substantially the form attached
as Exhibit
A.
Upon delivery of any such counterpart to the Guarantied Party, notice of which
is hereby waived by the Guarantors, each such Additional Guarantor shall be
a
Guarantor and shall be as fully a party hereto as if such Additional Guarantor
were an original signatory hereof. Each Guarantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Guarantor hereunder. This Guaranty shall be
fully effective as to any Guarantor that is or becomes a party hereto regardless
of whether any other Person becomes or fails to become or ceases to be a
Guarantor hereunder.
18. Discharge
of Guaranty Upon Sale of a Subsidiary Guarantor.
If all of the stock of any Guarantor or any of its successors in interest under
this Guaranty shall be sold or otherwise disposed of (including by merger or
consolidation) in a sale or other disposition to a Person (other than a
Subsidiary or an Affiliate of the Company) not prohibited by the Credit
Agreement or otherwise consented to by the Required Lenders in accordance with
the terms of the Credit Agreement, such Guarantor or such successor in interest,
as the case may be, may request the Guarantied Party to, and the Guarantied
Party shall, execute and deliver documents or instruments necessary to evidence
the release and discharge of this Guaranty as provided in Section 9.10 of the
Credit Agreement.
G-7
Form of Subsidiary Guaranty
19. GOVERNING
LAW; ASSIGNMENT;
JURISDICTION;
NOTICES.
THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
This
Guaranty shall (a) bind each Guarantor and its successors and assigns, provided
that no Guarantor may assign its rights or obligations under this Guaranty
without the prior written consent of the Beneficiaries (and any attempted
assignment without such consent shall be void), and (b) inure to the benefit
of
each Beneficiary and its successors and assigns and each Beneficiary may,
without notice to any Guarantor and without affecting any Guarantor’s
obligations hereunder, assign, sell or grant participations in the Guarantied
Obligations and this Guaranty, in whole or in part.
EACH
GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY
BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS GUARANTY SHALL AFFECT ANY RIGHT THAT ANY
BENEFICIARY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS GUARANTY AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
EACH
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO
THIS GUARANTY IN ANY COURT REFERRED TO IN THE IMMEDIATELY PRECEDING PARAGRAPH
OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 10.02 OF THE CREDIT AGREEMENT. NOTHING IN THIS GUARANTY
WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.
G-8
Form of Subsidiary Guaranty
Each
Guarantor agrees that any Beneficiary may disclose to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations of all or part of the Guarantied Obligations any and
all
information in such Beneficiary’s possession concerning such Guarantor, this
Guaranty and any security for this Guaranty. All notices and other
communications to any Guarantor under this Guaranty shall be provided in the
manner set forth for notices in Section 10.02 of the Credit
Agreement.
20. WAIVER
OF JURY TRIAL; FINAL AGREEMENT.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
THIS
GUARANTY CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER
HEREOF.
21. Foreign
Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due under this Guaranty in one currency
into another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the applicable Beneficiary could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each
Guarantor in respect of any such sum due from it to any Beneficiary under this
Guaranty shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Guaranty (the “Obligations
Currency”), be discharged only to the extent that on the Business Day
following receipt by any Beneficiary of any sum adjudged to be so due in the
Judgment Currency, such Beneficiary may in accordance with normal banking
procedures purchase the Obligations Currency with the Judgment Currency. If
the
amount of the Obligations Currency so purchased is less than the sum originally
due to such Beneficiary from any Guarantor in the Obligations Currency, each
such Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Beneficiary to whom such obligation was owing
against such loss. If the amount of the Obligations Currency so purchased is
greater than the sum originally due to such Beneficiary in such currency, such
Beneficiary agrees to return the amount of any excess to each such
Guarantor.
G-9
Form of Subsidiary Guaranty
22. Guarantied
Party as Agent.
The Guarantied Party has been appointed to act as the Guarantied Party hereunder
by Lenders. The Guarantied Party shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely
in
accordance with this Guaranty and the Credit Agreement; provided
that the Guarantied Party shall exercise, or refrain from exercising, any
remedies under or with respect to this Guaranty in accordance with the
instructions of the Required Lenders or all Lenders, as the case may be, in
accordance with the terms of the Credit Agreement.
The
Guarantied Party shall at all times be the same Person that is the
Administrative Agent under the Credit Agreement. Written notice of resignation
by the Administrative Agent pursuant to Section 9.06 of the Credit Agreement
shall also constitute notice of resignation as the Guarantied Party under this
Guaranty; and appointment of a successor Administrative Agent (after resignation
or removal) pursuant to Section 9.06 of the Credit Agreement shall also
constitute appointment of a successor Guarantied Party under this Guaranty.
Upon
the acceptance of any appointment as the Administrative Agent under Section
9.06
of the Credit Agreement by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring or removed Guarantied
Party under this Guaranty, and the retiring or removed Guarantied Party under
this Guaranty shall promptly (a) transfer to such successor Guarantied Party
all
sums held hereunder, together with all records and other documents necessary
or
appropriate in connection with the performance of the duties of the successor
Guarantied Party under this Guaranty, and (b) take such other actions as may
be
necessary or appropriate in connection with the assignment to such successor
Guarantied Party of the rights created hereunder, whereupon such retiring
Guarantied Party shall be discharged from its duties and obligations under
this
Guaranty. After any retiring Guarantied Party’s resignation hereunder as the
Guarantied Party, the provisions of this Guaranty shall inure to its benefits
as
to any actions taken or omitted to be taken by it under this Guaranty while
it
was the Guarantied Party hereunder.
23. Counterparts;
Effectiveness. This
Guaranty may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original for all purposes; but all such
counterparts together shall constitute but one and the same instrument. This
Guaranty shall become effective as to each Guarantor upon the execution of
a
counterpart hereof by such Guarantor (whether or not a counterpart hereof shall
have been executed by any other Guarantor) and receipt by the Guarantied Party
of written or telephonic notification of such execution and authorization of
delivery thereof.
24. Application
of Funds.
Except as expressly provided elsewhere in this Guaranty, all proceeds received
by the Beneficiaries on account of the Guarantied Obligations from any Guarantor
shall be applied to the payment of all Guarantied Obligations (for the ratable
benefit of the holders thereof) and, as to Obligations arising under the Credit
Agreement, as provided in Section 8.03 of the Credit Agreement.
G-10
Form of Subsidiary Guaranty
25. Notice
of Lender Swap Contracts.
The Guarantied Party shall not be deemed to have any duty whatsoever with
respect to any Swap Counterparty until it shall have received written notice
in
form and substance satisfactory to the Guarantied Party from the Borrowers,
the
Guarantor or the applicable Swap Counterparty as to the existence and terms
of
the applicable Lender Swap Contracts.
[Remainder
of page intentionally left blank.]
G-11
Form of Subsidiary Guaranty
IN
WITNESS WHEREOF,
the Guarantor and, solely for purposes of the waiver of the right to jury trial
contained in Section
20
hereof, the Guarantied Party have caused this Guaranty to be duly executed
and
delivered by their respective officers thereunto duly authorized as of the
date
hereof.
XXXXXX
SCIENTIFIC INTERNATIONAL, INC., as a Guarantor
By:
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Name:
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Title:
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Address: |
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BANK
OF AMERICA, N.A., as Administrative Agent, as Guarantied
Party
By:
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Name:
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Title:
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S-1
EXHIBIT
A
[FORM
OF] COUNTERPART FOR ADDITIONAL GUARANTORS
This
COUNTERPART (this “Counterpart”), dated _______, 20__, is delivered pursuant to
Section 17 of the Guaranty referred to below. The undersigned hereby agrees
that
this Counterpart may be attached to the Guaranty, dated as of [______ __],
200_
(as it may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Guaranty”; capitalized terms used herein not
otherwise defined herein shall have the meanings ascribed therein), among Xxxxxx
Scientific International Inc. and the other Guarantors named therein and Bank
of
America, N.A., as Administrative Agent for the Lenders, as Guarantied Party.
The
undersigned, by executing and delivering this Counterpart, hereby becomes an
Additional Guarantor under the Guaranty in accordance with Section 17 thereof
and agrees to be bound by all of the terms thereof.
IN
WITNESS WHEREOF,
the undersigned has caused this Counterpart to be duly executed and delivered
by
its officer thereunto duly authorized as of ______________, 20__.
[NAME
OF ADDITIONAL GUARANTOR], as a Guarantor
By:
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Name:
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Title:
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A-1
EXHIBIT
H
FORM
OF DESIGNATED BORROWER
JOINDER
AGREEMENT
Date:
___________, _____
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
This
Designated Borrower Joinder Agreement is made and delivered pursuant to
Section 2.14
of that certain Credit Agreement, dated as of August 29, 2006 (as amended,
restated, extended, supplemented or otherwise modified in writing from time
to
time, the “Credit
Agreement”),
among Thermo Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, and Bank of America, N.A., as Administrative Agent,
L/C
Issuer and Swing Line Lender, and reference is made thereto for full particulars
of the matters described therein. All capitalized terms used in this Designated
Borrower Joinder Agreement and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
Each
of ______________________ (the “Designated
Borrower”)
and the Company hereby confirms, represents and warrants to the Administrative
Agent and the Lenders that the Designated Borrower is a Subsidiary of the
Company.
The
documents required to be delivered to the Administrative Agent under
Section 2.14
of the Credit Agreement will be furnished to the Administrative Agent in
accordance with the requirements of the Credit Agreement.
The
true and correct unique identification number that has been issued to the
Designated Borrower by its jurisdiction of organization and the name of such
jurisdiction are set forth below:
Identification
Number
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Jurisdiction
of Organization
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|
|
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The
parties hereto hereby confirm that with effect from the date hereof, the
Designated Borrower shall have obligations, duties and liabilities toward each
of the other parties to the Credit Agreement identical to those which the
Designated Borrower would have had if the Designated Borrower had been an
original party to the Credit Agreement as a Borrower except that, in all cases,
the Designated Borrower’s obligation under the Credit Agreement shall be several
and not joint. The Designated Borrower confirms its acceptance of, and consents
to, all representations and warranties, covenants, and other terms and
provisions of the Credit Agreement (to the extent the same relate to a
Subsidiary of the Company).
The
parties hereto hereby request that the Designated Borrower be entitled to
receive Loans under the Credit Agreement, and understand, acknowledge and agree
that neither the Designated Borrower nor the Company on its behalf shall have
any right to request any Loans for its account unless and until the date five
Business Days after the effective date designated by the Administrative Agent
in
a Designated Borrower Notice delivered to the Company and the Lenders pursuant
to Section 2.14
of the Credit Agreement.
This
Designated Borrower Joinder Agreement shall constitute a Loan Document under
the
Credit Agreement.
THIS
DESIGNATED BORROWER JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF,
the parties hereto have caused this Designated Borrower Joinder Agreement to
be
duly executed and delivered by their proper and duly authorized officers as
of
the day and year first above written.
[DESIGNATED
BORROWER]
By:
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Name:
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Title:
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THERMO
ELECTRON CORPORATION
By:
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Name:
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Title:
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H-2
Form of Designated Borrower Joinder Agreement
EXHIBIT
I
FORM
OF DESIGNATED BORROWER NOTICE
Date:
___________, _____
To:
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Thermo
Electron Corporation
|
The
Lenders party to the Credit Agreement referred to below
|
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Ladies
and Gentlemen:
|
This
Designated Borrower Notice is made
and delivered pursuant to Section 2.14
of that certain Credit Agreement, dated as of August 29, 2006 (as amended,
restated, extended, supplemented or otherwise modified in writing from
time to
time, the “Credit
Agreement”),
among Thermo Electron Corporation, a Delaware corporation (the “Company”),
the Designated Borrowers from time to time party thereto, the Lenders from
time
to time party thereto, Bank of America, N.A., as Administrative Agent,
L/C
Issuer and Swing Line Lender, and Barclays Bank PLC, as L/C Issuer, and
reference is made thereto for full particulars of the matters described
therein.
All capitalized terms used in this Designated Borrower Notice and not otherwise
defined herein shall have the meanings assigned to them in the Credit
Agreement.
The
Administrative Agent hereby notifies Company and the Lenders that effective
as
of the date hereof [_________________________] shall be a Designated Borrower
and may receive Loans for its account on the terms and conditions set forth
in
the Credit Agreement.
This
Designated Borrower Notice shall constitute a Loan Document under the Credit
Agreement.
BANK
OF AMERICA, N.A.,
as
Administrative Agent
By:
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Name:
|
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Title:
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I-1
Form of Designated Borrower Notice
SCHEDULE
1.01
MANDATORY
COST FORMULAE
1. The
Mandatory Cost (to the extent applicable) is an addition to the interest
rate to
compensate Lenders for the cost of compliance with:
the
requirements of the Bank of England and/or the Financial Services Authority
(or,
in either case, any other authority which replaces all or any of its functions);
or the
requirements of the European Central Bank.
2. On
the first day of each Interest Period (or as soon as possible thereafter)
the
Administrative Agent shall calculate, as a percentage rate, a rate (the
“Additional
Cost Rate”)
for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average
of the
Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a
percentage rate per annum. The Administrative Agent will, at the request
of the
Company or any Lender, deliver to the Company or such Lender as the case
may be,
a statement setting forth the calculation of any Mandatory Cost.
3. The
Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender
to the
Administrative Agent. This percentage will be certified by such Lender in
its
notice to the Administrative Agent to be its reasonable determination of
the
cost (expressed as a percentage of such Lender’s participation in all Loans made
from such Lending Office) of complying with the minimum reserve requirements
of
the European Central Bank in respect of Loans made from that Lending
Office.
4. The
Additional Cost Rate for any Lender lending from a Lending Office in the
United
Kingdom will be calculated by the Administrative Agent as follows:
(a) in
relation to any Loan in Sterling:
AB+C(B-D)+E
x 0.01
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per
cent per annum
|
100
- (A+C)
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(b) in
relation to any Loan in any currency other than Sterling:
E
x 0.01
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per
cent per annum
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300
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5. Where:
“A”
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is
the percentage of Eligible Liabilities (assuming these to be
in excess of
any stated minimum) which that Lender is from time to time required
to
maintain as an interest free cash ratio deposit with the Bank
of England
to comply with cash ratio requirements.
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“B”
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is
the percentage rate of interest (excluding the Applicable Rate,
the
Mandatory Cost and any interest charged on overdue amounts pursuant
to the
first sentence of Section 2.08(b) and, in the case of interest
(other than
on overdue amounts) charged at the Default Rate, without counting
any
increase in interest rate effected by the charging of the Default
Rate)
payable for the relevant Interest Period of such Loan.
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“C”
|
is
the percentage (if any) of Eligible Liabilities which that Lender
is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
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“D”
|
is
the percentage rate per annum payable by the Bank of England
to the
Administrative Agent on interest bearing Special Deposits.
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“E”
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is
designed to compensate Lenders for amounts payable under the
Fees Rules
and is calculated by the Administrative Agent as being the average
of the
most recent rates of charge supplied by the Lenders to the Administrative
Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.
|
5. For
the purposes of this Schedule:
“Eligible
Liabilities”
and “Special
Deposits”
have the meanings given to them from time to time under or pursuant to the
Bank
of England Act 1998 or (as may be appropriate) by the Bank of
England;
“Fees
Rules”
means the rules on periodic fees contain in the FSA Supervision Manual or
such
other law or regulation as may be in force from time to time in respect of
the
payment of fees for the acceptance of deposits;
“Fee
Tariffs”
means the fee tariffs specified in the Fees Rules under the activity group
A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate);
and
“Tariff
Base”
has the meaning given to it in, and will be calculated in accordance with,
the
Fees Rules.
6. In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e.
5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If
requested by the Administrative Agent or the Company, each Lender with a
Lending
Office in the United Kingdom or a Participating Member State shall, as soon
as
practicable after publication by the Financial Services Authority, supply
to the
Administrative Agent and the Company, the rate of charge payable by such
Lender
to the Financial Services Authority pursuant to the Fees Rules in respect
of the
relevant financial year of the Financial Services Authority (calculated for
this
purpose by such Lender as being the average of the Fee Tariffs applicable
to
such Lender for that financial year) and expressed in pounds per £1,000,000 of
the Tariff Base of such Lender.
8. Each
Lender shall supply any information required by the Administrative Agent
for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or
prior to the date on which it becomes a Lender:
(a) the
jurisdiction of the Lending Office out of which it is making available its
participation in the relevant Loan; and
(b) any
other information that the Administrative Agent may reasonably require for
such
purpose.
Each
Lender shall promptly notify the Administrative Agent in writing of any change
to the
information provided by it pursuant to this paragraph.
9. The
percentages of each Lender for the purpose of A and C above and the rates
of
charge of each Lender for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to
paragraphs
7
and 8
above and on the assumption that, unless a Lender notifies the Administrative
Agent to the contrary, each Lender’s obligations in relation to cash ratio
deposits and Special Deposits are the same as those of a typical bank from
its
jurisdiction of incorporation with a Lending Office in the same jurisdiction
as
its Lending Office.
10.
The
Administrative Agent shall have no liability to any Person if such
determination
results in an Additional Cost Rate which over- or under-compensates
any Lender
and shall be entitled to assume that the information provided by any
Lender
pursuant to paragraphs
3,
7
and 8
above is true and correct in all respects.
11.
The
Administrative Agent shall distribute the additional amounts received as
a
result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost
Rate for each Lender based on the information provided by each Lender pursuant
to paragraphs
3,
7
and 8
above.
12.
Any
determination by the Administrative Agent pursuant to this Schedule in
relation
to a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding
on all parties hereto.
13.
The
Administrative Agent may from time to time, after consultation with the
Company
and the Lenders, determine and notify to all parties any amendments which
are
required to be made to this Schedule in order to comply with any change
in law,
regulation or any requirements from time to time imposed by the Bank of
England,
the Financial Services Authority or the European Central Bank (or, in any
case,
any other authority which replaces all or any of its functions) and any
such
determination shall, in the absence of manifest error, be conclusive and
binding
on all parties hereto.
SCHEDULE
2.01
COMMITMENTS
AND
APPLICABLE PERCENTAGES
Lender
|
Commitment
|
Applicable
Percentage
|
Bank
of America, N.A.
|
$90,000,000
|
9.000000000%
|
Barclays
Bank PLC
|
$90,000,000
|
9.000000000%
|
ABN-AMRO
Bank NV
|
$80,000,000
|
8.000000000%
|
Deutsche
Bank AG New York Branch
|
$80,000,000
|
8.000000000%
|
JPMorgan
Chase Bank, N.A.
|
$80,000,000
|
8.000000000%
|
The
Bank of Nova Scotia
|
$50,000,000
|
5.000000000%
|
Bank
of Tokyo-Mitsubishi UFJ, Ltd.
|
$50,000,000
|
5.000000000%
|
BNP
Paribas
|
$50,000,000
|
5.000000000%
|
Calyon
New York Branch
|
$50,000,000
|
5.000000000%
|
HSBC
Bank USA, National Association
|
$50,000,000
|
5.000000000%
|
KeyBank
National Association
|
$50,000,000
|
5.000000000%
|
Sumitomo
Mitsui Banking Corporation
|
$50,000,000
|
5.000000000%
|
Banca
Intesa S.p.A.
|
$45,000,000
|
4.500000000%
|
Mizuho
Corporate Bank (USA)
|
$45,000,000
|
4.500000000%
|
ING
Capital LLC
|
$40,000,000
|
4.000000000%
|
Xxxxxxx
Street Commitment Corporation
|
$40,000,000
|
4.000000000%
|
Bank
of China, New York Branch
|
$35,000,000
|
3.500000000%
|
Nordea
Bank Finland PLC
|
$25,000,000
|
2.500000000%
|
____________
|
______________
|
|
Total
|
$1,000,000,000
|
100.000000000%
|
Schedule
2.03
Existing
Letters of Credit
OUTSTANDING
LETTERS OF CREDIT
|
||||||
BUSINESS
|
BOA
REF #
|
LC
BENEFICIARY
|
AMOUNT
|
ISSUE
DATE
|
EXPIRATION
|
LC
ISSUE BANK
|
THERMO
ELEMENTAL INC.
|
64045669
|
STANDARD
CHARTERED BANK
|
$6,290.40
|
11-Mar-05
|
30-Sep-06
|
FLEET
|
THERMO
ELEMENTAL INC.
|
64045605
|
STANDARD
CHARTERED BANK
|
$12,580.80
|
22-Jul-04
|
30-Sep-06
|
FLEET
|
THERMO
ELEMENTAL INC.
|
64045689
|
STANDARD
CHARTERED BANK
|
$5,860.00
|
17-Nov-05
|
11-Jan-07
|
BOA
|
THERMO
ELEMENTAL INC.
|
64045685
|
STANDARD
CHARTERED BANK
|
$6,604.00
|
9-Sep-05
|
8-Feb-07
|
BOA
|
THERMO
ELEMENTAL INC.
|
64045682
|
MINERA
XXXXXX X.X. / XXXXXX PROJECT
|
$21,286.70
|
1-Aug-05
|
6-Oct-07
|
BOA
|
THERMO
XXXXXXXX LLC
|
0000000
|
BANK
OF CHINA
|
$8,990.00
|
4-Nov-03
|
30-Jan-07
|
FLEET
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
0000000
|
NATIONAL
BANK OF EGYPT
|
$22,622.50
|
4-Jun-03
|
28-Oct-06
|
FLEET
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
64045614
|
STANDARD
CHARTERED BANK
|
$16,360.00
|
21-Apr-04
|
30-Oct-06
|
FLEET
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
STATE
BANK OF INDIA
|
$19,700.00
|
24-Oct-05
|
30-Dec-06
|
BOA
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
STATE
BANK OF INDIA
|
$6,270.00
|
28-Mar-05
|
4-Feb-07
|
FLEET
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
STATE
BANK OF INDIA
|
$2,950.00
|
10-Feb-06
|
17-May-07
|
BOA
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
STATE
BANK OF INDIA
|
$18,050.00
|
16-Feb-06
|
17-Jun-07
|
BOA
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
WOORI
BANK, KOREA
|
$6,525.00
|
30-Jun-06
|
30-Sep-07
|
BOA
|
THERMO
ELECTRON
SCIENTIFIC
INSTRUMENTS
|
00000000
|
CANARA
BANK
|
$15,874.60
|
24-Apr-04
|
30-Jan-08
|
FLEET
|
THERMO
FORMA
|
64072213
|
Sanyo
Sales & Marketing
|
$250,939.00
|
12-Jul-06
|
10-Sep-06
|
BOA
|
THERMO
ELECTRON
LABORATORY
EQUIPMENT LLC
|
00000000
|
Bank
of China
|
$4,923.60
|
9-Jun-06
|
12-Jun-07
|
BOA
|
XXXXXX
LABORATORY
|
64421003
|
SHANGHAI
AN XING SCIENTIFIC
INSTRUMENTS
& MATERIALS IMPORT
|
$4,200.00
|
26-Jan-06
|
16-Jul-07
|
BOA
|
THERMO
LABSYSTEMS INC.
|
64421013
|
AGL
Investments No.2 Limited Partnership
|
$110,000.00
|
6-Jun-06
|
31-Jul-08
|
BOA
|
THERMO
XXXXXXXX CORPORATION
|
50103038
|
NEW
MEXICO ENVIRONMENT
|
$750,000.00
|
24-Sep-98
|
9-Oct-07
|
FLEET
|
THERMO
ENVIRONMENTAL
INSTRUMENTS
|
64045656
|
INDIAN
OVERSEAS BANK
|
$8,466.02
|
8-Feb-05
|
30-Apr-07
|
FLEET
|
THERMO
ENVIRONMENTAL
INSTRUMENTS
|
64045658
|
INDIAN
OVERSEAS BANK
|
$19,243.96
|
8-Feb-05
|
30-Apr-07
|
FLEET
|
THERMO
ENVIRONMENTAL
INSTRUMENTS
|
00000000
|
State
Bank of India
|
$240,118.00
|
15-Aug-06
|
22-Mar-07
|
BOA
|
THERMO
GAMMA-METRICS LLC
|
00000000
|
Bank
of China
|
$50,000.00
|
10-Mar-06
|
30-Aug-06
|
BOA
|
THERMO
GAMMA-METRICS
|
64045645
|
IHI,
INC. (NEW YORK)
|
$65,800.00
|
12-Nov-04
|
14-Sep-06
|
FLEET
|
THERMO
GAMMA-METRICS
|
0000000
|
CITIBANK
N.A. ALGERIA
|
$68,000.00
|
21-May-03
|
30-Sep-06
|
FLEET
|
THERMO
GAMMA-METRICS LLC
|
64045686
|
BANCO
BRADESCO S.A. (BRAZIL)
|
$24,970.00
|
29-Sep-05
|
31-Oct-06
|
BOA
|
THERMO
GAMMA-METRICS LLC
|
64421010
|
Agricultural
Bank of China Shenzhen Branch
|
$40,000.00
|
6-Apr-06
|
30-Dec-06
|
BOA
|
THERMO
GAMMA-METRICS
|
1432809
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
21-Nov-03
|
31-Dec-06
|
FLEET
|
THERMO
GAMMA-METRICS
|
1432818
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
17-Dec-03
|
31-Dec-06
|
FLEET
|
THERMO
GAMMA-METRICS
|
1432817
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
17-Dec-03
|
31-Dec-06
|
FLEET
|
THERMO
GAMMA-METRICS
|
1432811
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
21-Nov-03
|
31-Dec-06
|
FLEET
|
THERMO
GAMMA-METRICS LLC
|
00000000
|
CALYON
BANK EGYPT S.A.
|
$39,750.02
|
29-Jul-05
|
31-Mar-07
|
BOA
|
THERMO
GAMMA-METRICS
|
64421007
|
KOREA
HYDRO & NUCLEAR POWER CO
|
$22,464.00
|
17-Feb-06
|
30-Jul-07
|
BOA
|
THERMO
GAMMA-METRICS LLC
|
64421017
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
27-Jun-06
|
30-Oct-08
|
BOA
|
THERMO
GAMMA-METRICS LLC
|
64421019
|
KOREA
EXCHANGE BANK
|
$266,200.00
|
27-Jun-06
|
30-Jun-09
|
BOA
|
THERMO
FLOW SYSTEMS
|
1432832
|
JOINT
VENTURE ABB LUMMAS
|
$4,029.90
|
2-Mar-04
|
31-Dec-06
|
FLEET
|
THERMO
MEASURETECH
(TN
TECHNOLOGIES)
|
1251298
|
TEXAS
DEPARTMENT OF HEALTH
|
$85,000.00
|
29-Jan-01
|
29-Jan-07
|
FLEET
|
THERMO
MEASURETECH
(TN
TECHNOLOGIES)
|
00000000
|
STATE
BANK OF INDIA
|
$43,092.90
|
10-Dec-04
|
30-Apr-08
|
FLEET
|
THERMO
PROCESS
INSTRUMENTS LP
|
00000000
|
BANK
OF CHINA
|
$22,860.00
|
16-Dec-05
|
30-Jun-08
|
BOA
|
THERMO
MEASURETECH
(TN
TECHNOLOGIES)
|
00000000
|
STATE
BANK OF INDIA
|
$2,997.20
|
7-Mar-05
|
25-Aug-08
|
FLEET
|
THERMO
XXXXXX INC.
|
64421012
|
SQM
NITRATOS
|
$818.10
|
23-May-06
|
30-Sep-06
|
BOA
|
THERMO
XXXXXX INC.
|
64421014
|
CARBONES
DEL CERREJON LLC
|
$101,260.14
|
1-Jun-06
|
30-Sep-06
|
BOA
|
THERMO
XXXXXX INC.
|
64045650
|
MAN
TAKRAF, INC.
|
$1,520.00
|
8-Dec-04
|
30-Oct-06
|
FLEET
|
THERMO
XXXXXX INC.
|
64045668
|
NIPPON
CONVEYOR
|
$5,268.40
|
18-Mar-05
|
30-Oct-06
|
FLEET
|
THERMO
XXXXXX INC.
|
64045676
|
CORPORACION
NACIONAL DE COBRE/
DIVISION
CODELCO NORTE
|
$28,928.10
|
15-Jun-05
|
30-Jan-07
|
FLEET
|
THERMO
XXXXXX INC.
|
64045693
|
Fluor
Xxxxxx Sucursal Del Peru
|
$2,191.80
|
14-Dec-05
|
31-Jul-07
|
BOA
|
THERMO
XXXXXX INC.
|
64421011
|
Southern
Peru Copper Corporation
|
$88,300.00
|
23-May-06
|
31-Oct-07
|
BOA
|
Thermo
Keytek
|
64045692
|
Public
Procurement Service, Korea
|
$43,400.00
|
12/9/2005
|
4/1/2008
|
BOA
|
THERMO
ELECTRON CORPORATION
|
1287116
|
ADP,
INC
|
$1,900,000.00
|
18-Sep-01
|
18-Sep-07
|
FLEET
|
THERMO
ELECTRON CORPORATION
|
50003844
|
TRAVELERS
INDEMNITY COMPANY
|
$2,159,000.00
|
12-May-86
|
30-Jun-07
|
FLEET
|
THERMO
ELECTRON CORPORATION
|
64045674
|
SPX
CORPORATION
|
$156,293.00
|
|
00-Xxx-00
|
XXX
|
XXXXXXX
XXXXXXXX
|
00000000
|
XXX
XXXXX INT'L BANK
|
$40,000.00
|
4-Dec-98
|
30-Dec-06
|
FLEET
|
XXXXXXX
RESEARCH
|
50102508
|
ABU
DHABI INT'L BANK
|
$56,648.00
|
10-Feb-97
|
7-Feb-07
|
FLEET
|
THERMO
ELECTRON CORPORATION
(PEEK
TRAFFIC DENMARK)
|
0000000
|
DANSKE
BANK
|
$208,479.41
|
22-Dec-00
|
31-Dec-06
|
FLEET
|
THERMO
POWER CORPORATION
(PEEK
TRAFFIC THAILAND)
|
50102969
|
HONG
KONG SHANGHAI BANK
|
$3,012,684.84
|
5-Aug-98
|
5-Aug-07
|
FLEET
|
$11,428,810.39
|
Schedule
2.14
Eligible
Foreign Subsidiary Jurisdictions
Australia
Canada
Denmark
England
Finland
France
Germany
Japan
Luxembourg
Netherlands
Sweden
Switzerland
Schedule
5.06
The
litigation described in the first paragraph of Item 12 of the Notes to
Consolidated Financial Statements included in Thermo Electron Corporation’s
Quarterly Report on Form 10-Q for the quarter ended July 1, 2006.
Schedule
5.08
Environmental
Matters
None.
Schedule
7.01(b)
Existing
Liens at the Closing Date
A. Mortgages
Liens
with respect to the Thermo Xxxxxx, Inc. facility located at 501-90th
Avenue, N.W., Xxxx Rapids (Minneapolis), Minnesota, arising pursuant to that
certain Mortgage by and between Thermo Electron Corporation and Life Insurance
Company of the Southwest (c/o National Life Investment Management Company,
Inc.), dated as of June 12, 2000, and an assignment of leases and rents from
such facility pursuant to that certain Absolute Assignment of Leases and Rents
by and between Thermo Electron Corporation and Life Insurance Company of the
Southwest (c/o National Life Investment Management Company, Inc.), dated as
of
June 12, 2000.
B. UCC
Liens
Liens against Thermo Electron Corporation and its Subsidiaries arising in
connection with existing capital lease, operating lease, conditional sale and
deferred purchase price obligations of the type described in Schedule
7.02(b).
Schedule
7.02(b)
Existing
Indebtedness at the Closing Date
A. |
Credit
Arrangements
|
a. |
Revolving
Credit Arrangements
|
Existing
and/or future indebtedness for borrowed money and other credit arrangements
under the short-term (bilateral) credit arrangements by the banks listed below
for the utilization of the borrowers listed below up to the aggregate credit
limit amount per facility listed below:
Banks
|
Borrowers
|
Credit
Limit Amounts
|
Barclays
Bank PLC (UK)
|
Designated
Subsidiaries
|
US$150,000,000
|
ABN
AMRO Bank (various branches)
|
Designated
Majority- Owned Subsidiaries or Affiliates
|
US$30,000,000
EUR16,880,000
|
Royal
Bank of Canada (Canada)
|
Designated
Subsidiaries
|
CAD16,800,000
|
Commerzbank
(Germany)
|
Designated
Subsidiaries
|
EUR20,500,000
|
Nordea
Bank Finland PLC
Nordea
Bank Sverige AB
Nordea
Bank Danmark A/S
|
Designated
Subsidiaries
|
EUR15,000,000
(same
facility as above)
|
Nordea
Bank Norge ASA
|
NOK2,100,000
|
|
Australia
& New Zealand Banking Group Ltd. (Australia)
|
Designated
Subsidiaries
|
AUD6,900,000
|
Banca
Popolare de Milano (Italy)
|
Jouan
Italia Srl
Thermo
Electron SpA
|
EUR300,000
EUR1,500,000
|
Banco
Bilbao Vizcaya (Spain)
|
Thermo
Xxxxxxxx X.X.
|
EUR2,000,000
|
Banco
di Brescia (Italy)
|
Jouan
Italia Srl
|
EUR612,000
|
Bank
of Tokyo-Mitsubishi
UFJ,
Ltd.
(Japan)
(Hong
Kong)
(China)
|
Thermo
Electron K.K.
Thermo
Life Sciences (HK) Ltd.
Designated
Subsidiaries
|
JPY2,800,000,000
HKD1,000,000
USD30,000,000
|
Banca
Intesa (Italy)
|
Designated
Subsidiaries
|
XXX0,000,000
|
Xxxx
xx Xxxxxxx (XX)
|
Designated
Subsidiaries
|
US$30,000,000
|
Creditanstalt/Bank
Austria
(Austria)
|
Thermo
Electron Austria Wiss. Ger. GmbH
|
EUR1,460,000
|
Deutsche
Bank (Italy)
|
Jouan
Italia Srl
|
EUR175,000
|
Erste
Bank (Austria)
|
Thermo
Electron Austria Wiss. Ger. GmbH
|
EUR900,000
|
HSBC
(Singapore)
|
Thermo
Informatics
|
SGD100,000
|
XXX
Bank (South Africa)
|
Thermo
Electron Corporation (Pty) Ltd.
|
ZAR9,500,000
|
Credit
Suisse (Switzerland)
|
Thermo
Electron S.A.
|
CHF5,000,000
|
UBS
(Switzerland)
|
Thermo
Electron S.A.
|
CHF10,000,000
|
Banca
Nazionale del Lavoro (Italy)
|
Thermo
Xxxxxx Italia S.p.A.
Jouan
Italia Srl
|
EUR289,000
EUR175,000
|
Banco
del Xxxxx Xxxxx (Italy)
|
Thermo
Xxxxxx Italia S.p.A.
|
EUR775,000
|
BHF
Bank (Germany)
|
Thermo
Electron LED GmbH
|
EUR2,000,000
|
b. |
Other
Credit Arrangements
|
Five
Year Credit Agreement, dated as of June 30, 2005, among Thermo Luxembourg
Holding S.A.R.L., Thermo Finance Company B.V., and the additional borrowers
party thereto, Thermo Electron Corporation, as guarantor, Bank of
Tokyo-Mitsubishi Trust Company, as syndication agent, Barclays Bank Plc and
JPMorgan Chase Bank, N.A., as co-documentation agents, ABN AMRO Bank N.V.,
as
administrative agent and sole bookrunner, and the several lenders from time
to
time parties thereto.
B. |
Obligations
for the Deferred Purchase Price of Property or
Services
|
Indebtedness
arising pursuant to any existing operating leases with respect to company cars,
phones, office equipment, office furniture and other similar items that are
deemed to be deferred purchase price or other similar arrangements.
C. |
Notes,
Bonds and Debentures
|
a. |
Debentures
and Similar Instruments
|
None.
b. |
Long-Term
Notes Payable
|
Balance
as of 28 July 2006
|
Lender
|
|
($000)
|
||
Thermo
Electron Oy
|
||
Current
|
$43
|
Tekes
|
Long-Term
|
$128
|
|
Jouan
SAS
|
||
Current
|
$72
|
BNP
|
Long-Term
|
0
|
c. |
Short-Term
Notes Payable
|
Indebtedness
arising pursuant to any existing revolving credit arrangement as set forth
in
Section A above.
D. |
Indebtedness
Created or Arising Under Conditional Sale or Other Title Retention
Agreement for Acquired Property
|
Indebtedness
arising pursuant to any existing operating leases with respect to company cars,
phones, office equipment, office furniture and other similar items that may
be
deemed to be conditional sale or other similar obligations.
E. |
Capital
Lease Obligations
|
Balance
as of 28 July 2006
|
Lender
|
|
1.
Jouan SAS
|
||
Current
|
$94
|
SOGEFIMUR
|
Long-Term
|
$727
|
(sub
of Societe Generale)
|
2.
Jouan Industries SAS
|
||
Current
|
$894
|
|
Long-Term
|
$5,920
|
BNP/Societe
Generale
|
3. Jouan Robotics SAS | ||
Current
|
$30 |
SDR
(Societe
|
Long-Term
|
$40 |
Development
Regional)
|
4. Indebtedness arising pursuant to any existing operating leases with respect to company cars, phones, office equipment, office furniture and other similar items that may be deemed to be capital lease or other similar obligations. |
F.
|
Obligations,
Contingent or Otherwise, as an Account Party or Applicant Under or
In
Respect of Banker’s Acceptances
|
None.
G. |
Reimbursement
Obligations in respect of Drawings or Payments made under Letters
of
Credit, Surety or Performance Bonds or Similar Arrangements that
are not
Satisfied within Three Business Days following the Date of Receipt
of
Notice of such Drawing or
Payment
|
None.
H. |
Liquidation
Value of Mandatorily Redeemable Preferred Capital
Stock
|
None.
I. |
Guarantees
in respect of Obligations Described in (A) through (F) and
(H)
|
Separate
pooling arrangements in each of the United Kingdom, The Netherlands and Sweden
pursuant to which the banks under the revolving credit arrangements described
in
Section A above have a right of set-off against the accounts of all subsidiaries
of Thermo Electron Corporation party to the pooling arrangements in such
jurisdictions for amounts owing under the revolving credit arrangements to
such
banks.
J. |
Obligations
in (A) through (I) above Secured by any Lien on
Property
|
See
Schedule 7.01(b).
Schedule
7.04
Dispositions
MAT
Ltd. product line