EXHIBIT 10.1
EXECUTION COPY
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FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 17, 2004,
Among
TRW AUTOMOTIVE HOLDINGS CORP.,
TRW AUTOMOTIVE INTERMEDIATE HOLDINGS CORP.,
TRW AUTOMOTIVE INC. (f/k/a
TRW AUTOMOTIVE ACQUISITION CORP.),
THE FOREIGN SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.
(f/k/a JPMORGAN CHASE BANK),
as Administrative Agent,
BANK OF AMERICA, N.A. and
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Co-Syndication Agents,
and
CREDIT SUISSE FIRST BOSTON and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
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X.X. XXXXXX SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC,
as Lead Arrangers
and
X.X. XXXXXX SECURITIES INC., BANC OF
AMERICA SECURITIES LLC and
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Joint Bookrunners
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TABLE OF CONTENTS
Page(s)
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.......................................................... 5
SECTION 1.02. Terms Generally........................................................ 78
SECTION 1.03. Exchange Rates......................................................... 79
SECTION 1.04. Redenomination of Certain Foreign Currencies........................... 79
SECTION 1.05. Effectuation of Transfers.............................................. 80
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................................ 80
SECTION 2.02. Loans and Borrowings................................................... 82
SECTION 2.03. Requests for Borrowings................................................ 84
SECTION 2.04. Swingline Loans........................................................ 85
SECTION 2.05. Letters of Credit...................................................... 89
SECTION 2.06. Funding of Borrowings.................................................. 93
SECTION 2.07. Interest Elections..................................................... 99
SECTION 2.08. Termination and Reduction of Commitments............................... 101
SECTION 2.09. Repayment of Loans; Evidence of Debt................................... 102
SECTION 2.10. Repayment of Term Loans and Revolving Loans............................ 104
SECTION 2.11. Prepayment of Loans.................................................... 110
SECTION 2.12. Fees................................................................... 111
SECTION 2.13. Interest............................................................... 114
SECTION 2.14. Alternate Rate of Interest............................................. 115
SECTION 2.15. Increased Costs........................................................ 116
SECTION 2.16. Break Funding Payments................................................. 118
SECTION 2.17. Taxes.................................................................. 119
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs............ 120
SECTION 2.19. Mitigation Obligations; Replacement of Lenders......................... 121
SECTION 2.20. Foreign Subsidiary Loan Parties........................................ 125
SECTION 2.21. Additional Reserve Costs............................................... 125
SECTION 2.22. Ancillary Facilities................................................... 126
SECTION 2.23. Incremental Extensions of Credit....................................... 133
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers................................................... 135
SECTION 3.02. Authorization.......................................................... 135
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SECTION 3.03. Enforceability......................................................... 136
SECTION 3.04. Governmental Approvals................................................. 136
SECTION 3.05. Financial Statements................................................... 136
SECTION 3.06. No Material Adverse Change or Material Adverse Effect.................. 137
SECTION 3.07. Title to Properties; Possession Under Leases........................... 137
SECTION 3.08. Subsidiaries........................................................... 138
SECTION 3.09. Litigation; Compliance with Laws....................................... 139
SECTION 3.10. Federal Reserve Regulations............................................ 139
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act............. 140
SECTION 3.12. Use of Proceeds........................................................ 140
SECTION 3.13. Tax Returns............................................................ 140
SECTION 3.14. No Material Misstatements.............................................. 141
SECTION 3.15. Employee Benefit Plans................................................. 141
SECTION 3.16. Environmental Matters.................................................. 142
SECTION 3.17. Security Documents..................................................... 143
SECTION 3.18. Location of Real Property and Leased Premises.......................... 144
SECTION 3.19. Solvency............................................................... 145
SECTION 3.20. Labor Matters.......................................................... 146
SECTION 3.21. Insurance.............................................................. 146
ARTICLE IV
Conditions
SECTION 4.01. Effectiveness of Restated Credit Agreement............................. 146
SECTION 4.02. All Credit Events...................................................... 149
SECTION 4.03. Credit Events Relating to Foreign Subsidiary Borrowers................. 150
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties................................... 151
SECTION 5.02. Insurance.............................................................. 152
SECTION 5.03. Taxes.................................................................. 153
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the Administrative
Agent (which will furnish such information to the Lenders):.......... 155
SECTION 5.05. Litigation and Other Notices........................................... 158
SECTION 5.06. Compliance with Laws................................................... 158
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.............. 158
SECTION 5.08. Use of Proceeds........................................................ 159
SECTION 5.09. Compliance with Environmental Laws..................................... 159
SECTION 5.10. Further Assurances; Additional Mortgages............................... 159
SECTION 5.11. Fiscal Year; Accounting................................................ 162
SECTION 5.12. [Intentionally Omitted]................................................ 162
SECTION 5.13. Proceeds of Certain Dispositions....................................... 162
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SECTION 5.14. Post Restatement Effective Date Matters................................ 163
SECTION 5.15. Collateral Release..................................................... 163
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness........................................................... 165
SECTION 6.02. Liens.................................................................. 168
SECTION 6.03. Sale and Lease-Back Transactions....................................... 171
SECTION 6.04. Investments, Loans and Advances........................................ 171
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.............. 174
SECTION 6.06. Dividends and Distributions............................................ 177
SECTION 6.07. Transactions with Affiliates........................................... 179
SECTION 6.08. Business of Holdings, Intermediate Holdings, the U.S. Borrower and
the Subsidiaries..................................................... 181
SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc...................................................... 182
SECTION 6.10. [Intentionally Omitted.]............................................... 184
SECTION 6.11. Interest Coverage Ratio................................................ 185
SECTION 6.12. Leverage Ratio......................................................... 185
SECTION 6.13. Swap Agreements........................................................ 186
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default...................................................... 186
SECTION 7.02. Exclusion of Immaterial Subsidiaries................................... 187
SECTION 7.03. U.S. Borrower's Right to Cure.......................................... 187
ARTICLE VIII
The Agents
SECTION 8.01. Appointment............................................................ 191
SECTION 8.02. Nature of Duties....................................................... 193
SECTION 8.03. Resignation by the Agents.............................................. 194
SECTION 8.04. Each Agent in its Individual Capacity.................................. 194
SECTION 8.05. Indemnification........................................................ 194
SECTION 8.06. Lack of Reliance on Agents............................................. 195
SECTION 8.07. Designation of Affiliates for Foreign Currency Loans................... 195
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................... 196
SECTION 9.02. Survival of Agreement................................................. 197
SECTION 9.03. Binding Effect........................................................ 197
SECTION 9.04. Successors and Assigns................................................ 198
SECTION 9.05. Expenses; Indemnity................................................... 202
SECTION 9.06. Right of Set-off...................................................... 205
SECTION 9.07. Applicable Law........................................................ 205
SECTION 9.08. Waivers; Amendment.................................................... 205
SECTION 9.08A Amendment Fees........................................................ 207
SECTION 9.09. Interest Rate Limitation.............................................. 208
SECTION 9.10. Entire Agreement...................................................... 208
SECTION 9.11. WAIVER OF JURY TRIAL.................................................. 208
SECTION 9.12. Severability.......................................................... 208
SECTION 9.13. Counterparts.......................................................... 209
SECTION 9.14. Headings.............................................................. 209
SECTION 9.15. Jurisdiction; Consent to Service of Process........................... 209
SECTION 9.16. Confidentiality....................................................... 210
SECTION 9.17. Conversion of Currencies.............................................. 210
SECTION 9.18. USA PATRIOT Act....................................................... 211
ARTICLE X
Ancillary Facility Adjustments
SECTION 10.01. Exchange of Interests in Ancillary Facilities......................... 211
ARTICLE XI
Collection Allocation Mechanism
SECTION 11.01. Implementation of CAM................................................. 213
SECTION 11.02. Letters of Credit and Unfunded Ancillary Credit Extensions............ 215
SECTION 11.03. Existing Credit Agreement; Effectiveness of this Agreement............ 217
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Swingline Borrowing Request
Exhibit D Form of U.S. Mortgage
Exhibit E Form of U.S. Collateral Agreement
Exhibit F Form of Foreign Guarantee
Exhibit G Form of Xxxxx Guarantee
Exhibit H [Intentionally Omitted]
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Exhibit I [Intentionally Omitted]
Exhibit J [Intentionally Omitted]
Exhibit K-1 Form of Foreign Subsidiary Borrower Agreement
Exhibit K-2 Form of Foreign Subsidiary Borrower Termination
Exhibit L Reserve Costs for Mandatory Costs Rate
Exhibit M [Intentionally Omitted]
Exhibit N Form of Acceptable Letter of Credit
Exhibit O Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Exhibit P Form of Reaffirmation Agreement
Schedule 1.01(a) Acquired Foreign Subsidiaries
Schedule 1.01(b) Foreign Acquirors, Foreign Acquiror Equity Contributions
and Foreign Acquiror Loans
Schedule 1.01(c) Restatement Effective Date Ancillary Facilities
Schedule 1.01(d) Foreign Pledge Agreements
Schedule 1.01(e) Foreign Subsidiary Loan Parties
Schedule 1.01(f) Ancillary Facility Limits
Schedule 1.01(g) Collateral and Guarantee Requirement
Schedule 1.01(h) Certain U.S. Subsidiaries
Schedule 1.01(i) Restatement Effective Date Foreign Subsidiary Borrower
Agreements
Schedule 2.01 Commitments
Schedule 2.04(a) Swingline Dollar Commitments
Schedule 2.04(b) Swingline Foreign Currency Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.08(b) Subsidiaries
Schedule 3.08(c) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.18 Mortgaged Properties
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 4.01 Restatement Effective Date Collateral Matters
Schedule 5.14 Post Restatement Effective Date Collateral Matters
Schedule 6.02 Liens
Schedule 6.03 Sale and Lease-Back Transactions
Schedule 6.04(h) Existing Investments
Schedule 6.07 Transactions with Affiliates
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated
as of December 17, 2004 (this "Agreement"), among TRW
AUTOMOTIVE HOLDINGS CORP., a Delaware corporation
("Holdings"), TRW AUTOMOTIVE INTERMEDIATE HOLDINGS
CORP., a Delaware corporation ("Intermediate Holdings"),
TRW AUTOMOTIVE INC. (f/k/a TRW AUTOMOTIVE ACQUISITION
CORP.), a Delaware corporation (the "U.S. Borrower"),
the FOREIGN SUBSIDIARY BORROWERS party hereto, the
LENDERS party hereto from time to time, JPMORGAN CHASE
BANK, N.A. (f/k/a JPMORGAN CHASE BANK), as
administrative agent (in such capacity, the
"Administrative Agent"), and as collateral agent (in
such capacity, the "Collateral Agent") for the Lenders,
BANK OF AMERICA, N.A. and XXXXXXX XXXXX CREDIT PARTNERS
L.P., each as co-syndication agent (in such capacity, a
"Co-Syndication Agent"), and CREDIT SUISSE FIRST BOSTON
and THE BANK OF NOVA SCOTIA, each as co-documentation
agent (in such capacity, a "Co-Documentation Agent").
Pursuant to or in connection with the Purchase Agreement (with
such term and each other capitalized term used but not defined in this preamble
having the meaning assigned thereto in Article I), (a) the Equity Contributions
were made, (b) the financing transactions described in this preamble were
consummated, (c) the Xxxxx Equity Contribution, the Xxxxx Loan, the Newco UK
Equity Contribution, the Newco UK Loan, the Foreign Acquiror Equity
Contributions and the Foreign Acquiror Loans were consummated, (d) the Stock
Purchases were consummated, and (e) fees and expenses (the "Transaction Costs")
incurred in connection with the foregoing were paid.
On the Closing Date, (a) Automotive Investors L.L.C., a
Delaware limited liability company ("AILLC") and a Fund Affiliate, the
Management Group and the Management Equity Vehicle together, contributed not
less than $500,000,000 in cash to Holdings in exchange for not less than 500,000
shares of Holdings Common Stock (the "Holdings Equity Contribution"), (b)
Holdings contributed (i) the proceeds of the Holdings Equity Contribution and
(ii) a number of shares of Holdings Common Stock (the "Stock Consideration"),
that taken together with the shares issued pursuant to the Holdings Equity
Contribution had an implied value of not less than $868,000,000, to Intermediate
Holdings, in exchange for all the issued and outstanding Equity Interests of
Intermediate Holdings (the "Intermediate Holdings Equity Contribution"), (c)
Intermediate Holdings contributed to the U.S.
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Borrower in exchange for all the issued and outstanding Equity Interests of the
U.S. Borrower (i) the cash proceeds of the Intermediate Holdings Equity
Contribution, (ii) the Stock Consideration and (iii) 62.7% shares of LucasVarity
Holdings purchased by Intermediate Holdings from a subsidiary of Northrop Space
and Mission in exchange for the Seller Note and (d) the U.S. Borrower
contributed $10,000,000 in cash to Automotive (LV) Corp. in exchange for all the
issued and outstanding Equity Interests of Automotive (LV) Corp. (the steps
described in clauses (a)-(d) of this paragraph together, the "Equity
Contributions").
On February 18, 2003, the U.S. Borrower issued and sold in
offerings pursuant to Rule 144A under the Securities Act of 1933 (the
"Securities Act") and Regulation S under the Securities Act (a) Senior Notes
having an aggregate principal amount of $925,000,000, (b) Senior Notes having an
aggregate principal amount of (euro)200,000,000, (c) Senior Subordinated Notes
having an aggregate principal amount of $300,000,000 and (d) Senior Subordinated
Notes having an aggregate principal amount of (euro)125,000,000.
Simultaneously with the consummation of the Equity
Contributions, (a) the U.S. Borrower obtained, and made Borrowings in an
aggregate amount the Dollar Equivalent of which is not in excess of
$1,544,000,000 under, the senior secured credit facilities provided for by the
Original Credit Agreement, (b) the U.S. Borrower made the Management Equity Loan
and (c) the U.S. Borrower and certain of the Subsidiaries obtained $150,000,000
in proceeds under the Permitted Receivables Financing.
Prior to the consummation of the transactions described in the
immediately preceding sentence, the U.S. Borrower contributed (euro)12,500 in
cash to Xxxxx in exchange for all of the issued and outstanding Equity Interests
of Xxxxx (the "Xxxxx Equity Contributions"). Concurrently with the consummation
of the transactions described in the immediately preceding paragraph, (a) the
U.S. Borrower (i) made the Foreign Acquiror Equity Contributions and the Xxxxx
Loan and (ii) contributed no more than $12,000,000 to Automotive Holdings (UK),
Ltd. ("Newco UK") in exchange for all the issued and outstanding Equity
Interests of Newco UK (the "Newco UK Equity Contribution") and made the Newco UK
Loan, (b) Xxxxx used the proceeds of the Xxxxx Loan to make the Foreign Acquiror
Loans, (c) the U.S. Borrower purchased from a subsidiary of Northrop Space and
Mission all the issued and outstanding shares of LucasVarity Holdings not
purchased by Intermediate Holdings (as described above) for $356,510,000 in
cash, (d) (i) the Foreign Acquirors used the proceeds of the Foreign Acquiror
Equity Contributions
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and the Foreign Acquiror Loans to purchase from subsidiaries of Northrop Space
and Mission all the Equity Interests of the Acquired Foreign Subsidiaries and
(ii) Newco UK used the proceeds of the Newco UK Equity Contribution and the
Newco UK Loan to acquire 80.4% of the issued and outstanding LucasVarity shares
and all the issued and outstanding Equity Interests in TRW UK Ltd and all the
issued and outstanding Equity Interests of TRW INO Ltd., (e) Automotive Holdings
(France) S.A.S. purchased no less than 90% of the Equity Interests of TRW France
Holdings SAS from Xxxxx Investments, Limited in exchange for a subordinated note
of Automotive Holdings (France) S.A.S. in an aggregate principal amount of up to
$542,000,000, (f) Automotive (LV) Corp. purchased from a subsidiary of Northrop
Space and Mission 1% of the issued and outstanding LucasVarity shares for
$10,000,000 in cash, (g) the U.S. Borrower purchased from a subsidiary of
Northrop Space and Mission (i) all the issued and outstanding LucasVarity shares
not purchased by Automotive (LV) Corp. or Newco UK, and (ii) all the issued and
outstanding shares of TRW Steering & Suspension Co. Ltd., TRW Vehicle Safety
Systems and TRW Automotive JV LLC for $280,000,000 in cash and the Stock
Consideration, (h) the U.S. Borrower purchased from a subsidiary of Northrop
Space and Mission all the issued and outstanding Equity Interests of TRW Auto
Holdings Inc. and TRW Automotive U.S. LLC for $1,126,000,000 in cash (the steps
described in clauses (c)-(h) of this paragraph together, the "Stock Purchases").
Following the consummation of the Stock Purchases, (i) the U.S. Borrower
contributed to LucasVarity 1% of the Equity Interests of Xxxxx acquired by the
U.S. Borrower as described in clause (a) above and (j) the U.S. Borrower
contributed to Newco UK all the LucasVarity shares purchased by U.S. Borrower
(as described in clause (g) above) in exchange for 18.6% of the issued and
outstanding shares of Newco UK.
The Borrowers borrowed (a) tranche A term loans on the Closing
Date, in an aggregate principal amount not in excess of $410,000,000, (b)
tranche B-1 term loans on the Closing Date, in an aggregate principal amount not
in excess of $1,030,000,000, and (c) tranche B-2 term loans on the Closing Date
in an aggregate principal amount in Euros not in excess of (euro)64,814,815.
The proceeds of such term loans were used by the U.S. Borrower
and the Subsidiaries on the Closing Date, together with (a) the Equity
Contributions, (b) up to $12,000,000 in proceeds of U.S. Revolving Facility
Loans, (c) the proceeds of the offering and sale of the Senior Notes and the
Senior Subordinated Notes and (d) the proceeds of the initial sale on the
Closing Date of accounts receivable and related assets under the Permitted
Receivables Financing, solely (v) to make the Management Equity Loan, (w) to
make the Xxxxx Loan, (x) to make
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the Foreign Acquiror Loans and the Newco UK Loan, (y) to make the Stock
Purchases and (z) to pay the Transaction Costs.
On July 22, 2003, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into an Amendment
and Restatement Agreement (the "First Amendment and Restatement Agreement")
pursuant to which the Original Credit Agreement was amended and restated in its
entirety (as so amended and restated, the "First Amended and Restated Credit
Agreement").
On January 9, 2004, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into an Amendment
and Restatement Agreement (the "Second Amendment and Restatement Agreement")
pursuant to which the First Amended and Restated Credit Agreement was amended
and restated in its entirety (as so amended and restated, the "Second Amended
and Restated Credit Agreement").
On February 6, 2004, Holdings completed an initial public
offering of 24,137,931 shares of its common stock (the "IPO") and used the
proceeds therefrom to (a) repurchase 12,068,965 shares of its common stock from
AILLC (the "IPO Repurchase Transaction") and (b) repay a portion of its Senior
Notes and Senior Subordinated Notes (both as defined below) as follows: (i)
approximately $117,000,000 of such proceeds to repay 35% of its $300,000,000
aggregate principal amount of 11% Senior Subordinated Notes, (ii) approximately
$61,000,000 of such proceeds to repay 35% of its (euro)125,000,000 aggregate
principal amount of 11.75% Senior Subordinated Notes, (iii) approximately
$109,000,000 of such proceeds to repay approximately 11% of its $925,000,000
aggregate principal amount of 9.375% Senior Notes and (iv) approximately
$30,000,000 of such proceeds to repay approximately 11% of its (euro)200,000,000
aggregate principal amount of 10.125% Senior Notes.
On November 2, 2004, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into an Amendment
and Restatement Agreement (the "Third Amendment and Restatement Agreement")
pursuant to which the Second Amended and Restated Credit Agreement was amended
and restated in its entirety (as so amended and restated, the "Existing Credit
Agreement").
The Existing Credit Agreement provided for the Tranche E
Facility, the proceeds of which (together with cash on hand) were utilized to
make the Intermediate Holdings Loan. On November 12, 2004, Intermediate Holdings
utilized the proceeds of the Intermediate Holdings Loan to repurchase the entire
outstanding principal amount of the Seller Note.
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Holdings, Intermediate Holdings, the U.S. Borrower and the Required
Restatement Lenders desire to further amend and restate the Existing Credit
Agreement as more fully described herein. Subject to the satisfaction of the
conditions set forth herein, the Existing Credit Agreement shall be amended and
restated as provided herein.
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Dollar Loan.
"ABR Revolving Borrowing" shall mean a Borrowing comprised of ABR
Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acceptable Letter of Credit" shall mean a letter of credit that (a)
is issued to Xxxxx by a commercial bank whose long-term debt, or whose parent
holding company's long-term debt, is rated A (or such similar equivalent rating)
or higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act), (b) has a face amount not
less than the outstanding principal amount of the Xxxxx Notes on the date of
issuance of such letter of credit, (c) is in substantially the form of Exhibit N
and (d) provides for drawing upon the earlier to occur of (i) the date on which
Xxxxx is required by a judgment of a court of competent jurisdiction to pay
amounts in respect of principal due under the Xxxxx Notes and (ii) 10 Business
Days prior to the stated termination date of such letter of credit if such
letter of credit has not been replaced with a substantially identical letter of
credit.
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"Acquired Foreign Subsidiaries" shall mean the Subsidiaries
specified on Schedule 1.01(a).
"Additional Mortgage" shall have the meaning provided in Section
5.10(c).
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves applicable to such
Eurocurrency Borrowing, if any.
"Administrative Agent" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.12(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Agents" shall mean the Administrative Agent and the Collateral
Agent.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Revolving Credit Exposures and the Ancillary Facility
Exposures.
"Agreement" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Agreement Currency" shall have the meaning assigned to such term in
Section 9.17(b).
"AILLC" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. If for any
reason the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New
York to publish rates or the
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inability of the Administrative Agent to obtain quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Ancillary Commitment" shall mean, with respect to any Ancillary
Lender, the maximum amount that such Ancillary Lender has agreed to make
available from time to time during the Availability Period under Ancillary
Facilities created pursuant to Section 2.22 by such Ancillary Lender; provided
that at no time shall (a) the sum of (i) the Ancillary Commitment of such
Ancillary Lender and (ii) the Available Unused Commitment of such Ancillary
Lender exceed (b) the Global Revolving Facility Commitment of such Ancillary
Lender.
"Ancillary Commitment Limit" shall mean $125,000,000; provided that
the Ancillary Commitments with respect to the Ancillary Facilities in the
jurisdictions set forth on Schedule 1.01(f) shall be limited to the amounts set
forth opposite such jurisdictions on such Schedule.
"Ancillary Credit Extensions" shall mean Funded Ancillary Credit
Extensions and Unfunded Ancillary Credit Extensions.
"Ancillary Facility" shall mean any facility or financial
accommodation (including any revolving, overdraft, foreign exchange, guarantee,
letter of credit, bonding, credit card or automated payments facility) made
available to a Foreign Subsidiary Borrower by a Global Revolving Facility Lender
pursuant to Section 2.22.
"Ancillary Facility Document" shall mean, with respect to any
Ancillary Facility, the agreements between the applicable Foreign Subsidiary
Borrower and the Ancillary Lender thereunder providing for such Ancillary
Facility.
"Ancillary Facility Exposure" shall mean, at any time with respect
to an Ancillary Facility made available by an Ancillary Lender, the sum of the
Dollar Equivalents at such time of each of the following amounts (as calculated
by such Ancillary Lender using the relevant Exchange Rate at such time):
(a) the aggregate principal amount under any overdraft, check
drawing or other account facilities, determined on the same basis as that
for determining any
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limit on such facilities imposed by the terms of such Ancillary Facility;
(b) the maximum potential liability (excluding amounts
representing interest, fees and similar amounts) under all letters of
credit, guarantees and bonds then outstanding under such Ancillary
Facility;
(c) the aggregate principal amount of loans outstanding
thereunder; and
(d) in the case of any other facility or financial accommodation,
such other amount as fairly represents the aggregate exposure of such
Ancillary Lender under such facility or financial accommodation, as
reasonably determined by such Ancillary Lender from time to time in
accordance with its usual banking practice for facilities or
accommodations of such type.
"Ancillary Facility Repayment Amount" shall have the meaning
assigned to such term in Section 2.22(e)(ii).
"Ancillary Facility Termination Date" shall have the meaning
assigned to such term in Section 2.22(e)(i).
"Ancillary Lender" shall mean, with respect to an Ancillary
Facility, the Global Revolving Facility Lender that has made such Ancillary
Facility available pursuant to Section 2.22.
"Ancillary Replacement Borrowing" shall mean a Global Revolving
Facility Borrowing made by an Eligible Borrower upon the termination of an
Ancillary Facility pursuant to clause (ii) of the first sentence of Section
2.22(e).
"Applicable Agent" shall mean (a) with respect to a Loan or
Borrowing denominated in Dollars or with respect to any payment that does not
relate to any Loan or Borrowing, the Administrative Agent and (b) with respect
to a Loan or Borrowing denominated in a Foreign Currency, a Swingline Foreign
Currency Borrowing or Swingline Foreign Currency Loan, the Administrative Agent
or an Affiliate thereof designated pursuant to Section 8.07.
"Applicable Creditor" shall have the meaning assigned to such term
in Section 9.17(b).
"Applicable Margin" shall mean, for any day, with respect to any
Loan that is a Tranche A Term Loan, Tranche A-1 Term Loan, Tranche B Term Loan,
Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Loan, Tranche E Term Loan or a Revolving
Loan, or with respect to the Commitment Fees payable hereunder after
9
the Effective Funding Time, as the case may be, the applicable margin per annum
set forth below under the caption "Existing Revolving Loan ABR Spread",
"Existing Revolving Loan Eurocurrency Spread", "New Revolving Loan ABR Spread",
"New Revolving Loan Eurocurrency Spread", "Tranche A Term Loan ABR Spread",
"Tranche A Term Loan Eurocurrency Spread", "Tranche A-1 Term Loan ABR Spread",
"Tranche A-1 Term Loan Eurocurrency Spread", "Tranche D-1 Term Loan ABR Spread",
"Tranche D-1 Term Loan Eurocurrency Spread", "Tranche D-2 Term Loan Eurocurrency
Spread", "Tranche E Term Loan and Tranche B Term Loan ABR Spread", "Tranche E
Term Loan and Tranche B Term Loan Eurocurrency Spread" or "Commitment Fee Rate",
as applicable, based upon the Leverage Ratio or, with respect to the Tranche A-1
Term Loans, Tranche D-1 Term Loans, Tranche D-2 Term Loans, Tranche B Term Loans
and Tranche E Term Loans, the ratings assigned to the Facilities by S&P and/or
Xxxxx'x as of the most recent determination date.
10
Applicable Margins for Existing Revolving Loans
Existing Revolving
Existing Revolving Loan
Loan ABR Eurocurrency
Leverage Ratio: Spread Spread
------------------------- ------------------ ------------------
Category 1
Leverage Ratio greater than 4.375
to 1.00 3.25% 4.25%
Category 2
Leverage Ratio less than or equal
to 4.375 to 1.00 but greater than
3.00 to 1.00 2.50% 3.50%
Category 3
Leverage Ratio less than or equal
to 3.00 to 1.00 but greater than
2.50 to 1.00 2.00% 3.00%
Category 4
Leverage Ratio less than or equal
to 2.50 to 1.00 but greater than
2.00 to 1.00 1.50% 2.50%
Category 5
Leverage Ratio less than or equal
to 2.00 to 1.00 1.25% 2.25%
Applicable Margins for New Revolving Loans,
Tranche A Term Loans and Commitment Fee Rates
New Revolving Loan
New Revolving Loan and Tranche A Term Loan
and Tranche A Term Eurocurrency
Leverage Ratio: Loan ABR Spread Spread Commitment Fee Rate
------------------------ ------------------ ----------------------- -------------------
Category 1
Leverage Ratio greater than or
equal to
2.25 to 1.00 0.375% 1.375% 0.35%
Category 2
Leverage Ratio less than 2.25 to
1.00 but greater than or equal to
2.00 to 1.00 0.25% 1.25% 0.30%
Category 3
Leverage Ratio less than 2.00 to
1.00 but greater than or equal to
1.75 to 1.00 0.125% 1.125% 0.25%
11
New Revolving Loan
New Revolving Loan and Tranche A Term Loan
and Tranche A Term Eurocurrency
Leverage Ratio: Loan ABR Spread Spread Commitment Fee Rate
------------------------ ------------------ ----------------------- -------------------
Category 4
Leverage Ratio less than 1.75 to
1.00 0.00% 1.00% 0.20%
Applicable Margins for Tranche A-1 Term Loans,
Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0 Term Loans,
Tranche E Term Loans and Tranche B Term Loans
Tranche E Tranche E
Term Loan Term Loan
Tranche X-0 Xxxxxxx X-0 Xxxxxxx X-0 Xxxxxxx X-0 and and Tranche
Term Term Loan Tranche D-1 Term Loan Term Loan Tranche B B Term Loan
Leverage Ratio or Loan ABR Euro-currency Term Loan Euro-currency Euro-currency Term Loan Euro-currency
Ratings: Spread Spread ABR Spread Spread Spread ABR Spread Spread
----------------- ----------- ------------- ----------- ------------- ------------- ---------- -------------
Category 1
Leverage Ratio
greater than 3.75
to 1.00 1.50% 2.50% 1.75% 2.75% 2.75% 0.75% 1.75%
Category 2
Leverage Ratio
less than or equal
to 3.75 to 1.00
but greater than
3.25 to 1.00 1.25% 2.25% 1.50% 2.50% 2.50% 0.75% 1.75%
Category 3
Leverage Ratio
less than or equal
to 3.25 to 1.00
but greater than
2.00 to 1.00 1.00% 2.00% 1.50% 2.50% 2.50% 0.75% 1.75%
Category 4
Leverage Ratio
less than or equal
to 2.00 to 1.00
OR
Ratings either BB+
or better by S&P
or Ba1 or better
by Xxxxx'x 0.75% 1.75% 1.25% 2.25% 2.25% 0.50% 1.50%
Category 5
Ratings both BB+
or better by S&P
and Ba1 or better
by Xxxxx'x 0.75% 1.75% 1.00% 2.00% 2.25% 0.50% 1.50%
12
For purposes of the foregoing, (a) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the U.S. Borrower's fiscal
year based upon the consolidated financial information of the U.S. Borrower and
the Subsidiaries delivered pursuant to Section 5.04(a) or (b) and (b) each
change in the Applicable Margin resulting from a change in the Leverage Ratio
shall be effective during the period commencing on and including the first
Business Day after the date of delivery to the Administrative Agent of such
consolidated financial information indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
the Leverage Ratio shall be deemed to be in Category 1 (i) at any time that an
Event of Default has occurred and is continuing or (ii) at the option of the
Administrative Agent or at the request of the Required Lenders, if the U.S.
Borrower fails to deliver the consolidated financial information required to be
delivered pursuant to Section 5.04(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
information is delivered.
For purposes of the foregoing, (i) if either S&P or Xxxxx'x shall
not have in effect a rating for the Facilities (other than by reason of the
circumstances referred to in the following sentence), then such rating agency
(or, if an Event of Default has occurred and is continuing, both rating
agencies) will have deemed to have established a rating for the Facilities that
is below BB+ (in the case of S&P) or below Ba1 (in the case of Xxxxx'x) and (ii)
if any rating established or deemed to have been established by S&P or Xxxxx'x
shall be changed (other than as a result of a change in the rating system of
either S&P or Xxxxx'x), such change shall be effective as of the date on which
such change is first announced by the rating agency making such change. If the
rating system of S&P or Xxxxx'x shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the U.S.
Borrower and the Required Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the non-availability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the rating of such rating agency shall be determined by reference to
the rating most recently in effect from such rating agency prior to such change
or cessation.
For purposes of the Tranche A-1 Term Loans, Tranche D-1 Term Loans,
Tranche D-2 Term Loans, Tranche B Term Loans and Tranche E Term Loans, in the
event the ratings established or deemed to have been established by S&P or
Xxxxx'x for the Facilities and the Leverage Ratio shall fall in different
13
Categories, the Applicable Margin shall be determined by reference to the
Category with the lower Applicable Margin.
"Applicant Party" shall mean, with respect to a Letter of Credit,
the Borrower that requested such Letter of Credit.
"Approved Fund" shall have the meaning assigned to such term in
Section 9.04(b).
"Asset Disposition" shall mean any sale, transfer or other
disposition by Holdings, the U.S. Borrower or any of the Subsidiaries to any
person other than a Borrower or any Subsidiary Loan Party of any asset or group
of related assets in one or a series of related transactions, the Net Proceeds
from which exceed $50,000,000.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent and the U.S. Borrower, in the form of Exhibit A or such other form as
shall be approved by the Administrative Agent.
"Automotive (LV) Corp." shall mean Automotive (LV) Corp., a Delaware
corporation.
"Availability Period" shall mean the period from and including the
Closing Date to but excluding the earlier of the Revolving Credit Maturity Date
and (a) in the case of each of Global Revolving Facility Loans, Global Revolving
Facility Borrowings, Swingline Foreign Currency Loans and Swingline Foreign
Currency Borrowings, the date of termination of the Global Revolving Facility
Commitments and (b) in the case of each of U.S. Revolving Facility Loans, U.S.
Revolving Facility Borrowings, Swingline Dollar Borrowings and Letters of
Credit, the date of termination of the U.S. Revolving Facility Commitments.
"Available Intercompany Investment Amount" shall mean, at any time
with respect to any investment, loan or Guarantee, (a) 10% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date of such
investment, loan or Guarantee for which financial statements have been delivered
pursuant to Section 5.04, minus (b) the sum of (x) the aggregate amount of
investments made prior to such time by the Borrowers and the Subsidiary Loan
Parties in Subsidiaries that are not Loan Parties pursuant to Section 6.04(a)
(valued at the time of the making thereof without giving effect to any
write-downs or write-offs thereof), (y) the aggregate amount of intercompany
loans made prior to such time by the Borrowers and the Subsidiary Loan Parties
in Subsidiaries that are not Loan Parties pursuant to
14
Section 6.04(d) and (z) the aggregate amount of Guarantees provided prior to
such time by the Borrowers and the Subsidiary Loan Parties in respect of
obligations of Subsidiaries that are not Loan Parties pursuant to Section
6.04(l), plus (c) the sum of (x) the aggregate amount of returns of capital
received by the Borrowers and the Subsidiary Loan Parties in cash prior to such
time in respect of investments made by them in Subsidiaries that are not Loan
Parties pursuant to Section 6.04(a) or Section 6.04(h), (y) the aggregate
principal amount of intercompany loans made by the Borrowers and the Subsidiary
Loan Parties in Subsidiaries that are not Loan Parties pursuant to Section
6.04(d) or Section 6.04(h) that have been repaid in cash or with assets prior to
such time by Subsidiaries that are not Loan Parties to the Borrowers and the
Subsidiary Loan Parties, provided that, with respect to the repayment of
intercompany loans with assets pursuant to this clause (y), the aggregate
principal amount of intercompany loans repaid for purposes of this clause (y)
shall not exceed the fair market value of the assets of Subsidiaries that are
not Loan Parties received by the Borrowers and the Subsidiary Loan Parties in
respect of such repayments (as shall be specified in a certificate delivered by
the chief financial officer of the U.S. Borrower to the Administrative Agent at
the time of such repayment), and (z) the aggregate reduction prior to such time
of Indebtedness of Subsidiaries that are not Loan Parties that had been
Guaranteed by the Borrowers and the Subsidiary Loan Parties pursuant to Section
6.04(l) or Section 6.04(h) (other than any such reduction in Indebtedness funded
by the Borrowers and the Subsidiary Loan Parties).
"Available Unused Commitment" shall mean (a) with respect to any
Global Revolving Facility Lender prior to the Effective Funding Time, the
Existing Available Unused Commitment of such Global Revolving Facility Lender
and (b) with respect to any Global Revolving Facility Lender at and after the
Effective Funding Time, the New Available Unused Commitment of such New Global
Revolving Facility Lender.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" shall mean the U.S. Borrower and the Foreign Subsidiary
Borrowers.
"Borrowing" shall mean a group of Loans of a single Type under a
single Facility and made on a single date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect.
15
"Borrowing Minimum" shall mean (a) in the case of an ABR Revolving
Borrowing, $5,000,000, (b) in the case of a Eurocurrency Revolving Borrowing
denominated in Dollars, $5,000,000, (c) in the case of a Global Revolving
Facility Borrowing denominated in a Foreign Currency, the smallest amount of
such Foreign Currency that is a multiple of 1,000,000 units of such Foreign
Currency and has a Dollar Equivalent in excess of $5,000,000, (d) in the case of
a Swingline Dollar Borrowing, $500,000 and (e) in the case of a Swingline
Foreign Currency Borrowing, the smallest amount of such Foreign Currency that is
a multiple of 500,000 units of such Foreign Currency and has a Dollar Equivalent
in excess of $1,000,000.
"Borrowing Multiple" shall mean (a) in the case of a Revolving
Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Swingline
Dollar Borrowing, $500,000 and (c) in the case of a Global Revolving Facility
Borrowing denominated in a Foreign Currency or a Swingline Foreign Currency
Borrowing, 100,000 units of such Foreign Currency.
"Borrowing Request" shall mean a request by a Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C-1.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market and (b) when used in connection with a Loan denominated
in Euros, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro.
"Calculation Date" shall mean (a) the last Business Day of each
calendar month, (b) each date (with such date to be reasonably determined by the
Administrative Agent) that is on or about the date of (i) a Borrowing Request or
an Interest Election Request with respect to any Global Revolving Facility Loan
denominated in a Foreign Currency, (ii) the issuance, amendment, renewal or
extension of a Foreign Currency Letter of Credit or (iii) a request for a
Swingline Foreign Currency Borrowing and (c) if an Event of Default has occurred
and is continuing, any Business Day as determined by the Administrative Agent in
its sole discretion.
"CAM" shall mean the mechanism for the allocation and exchange of
interests in the Loans and extensions of credit under
16
Ancillary Facilities, participations in Letters of Credit and collections
thereunder established under Article XI.
"CAM Dollar Lender" shall mean each Lender other than a CAM Euro
Lender.
"CAM Euro Lender" shall mean a Lender that has made or holds only
Xxxxxxx X-0 Loans.
"CAM Exchange" shall mean the exchange of the Lenders' interests
provided for in Section 11.01.
"CAM Exchange Date" shall mean the first date after the Closing Date
on which there shall occur (a) any event described in paragraph (h) or (i) of
Section 7.01 with respect to any Borrower or (b) an acceleration of Loans
pursuant to Section 7.01.
"CAM Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum of (i) the
Dollar Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of the aggregate Obligations in respect of Loans (other than
Swingline Loans) owed to such Lender, (ii) the Revolving L/C Exposure, if any,
of such Lender, (iii) the Swingline Exposure, if any, of such Lender, and (iv)
the Ancillary Facility Exposure, if any, of such Lender, in each case
immediately prior to the CAM Exchange Date, and (b) the denominator shall be the
sum of (i) the Dollar Equivalent, determined using the Exchange Rates calculated
as of the CAM Exchange Date, of the aggregate Obligations in respect of Loans
(other than Swingline Loans) owed to all the Lenders, (ii) the aggregate
Revolving L/C Exposure of all the Lenders, (iii) the Swingline Exposures of all
Lenders and (iv) the Ancillary Facility Exposures of all Lenders, in each case
immediately prior to the CAM Exchange Date; provided that, for purposes of
clause (a) above, the Obligations owed to a Swingline Lender will be deemed not
to include any Swingline Loans except to the extent provided in clause (a)(iii)
above.
"Capital Expenditures" shall mean, for any person in respect of any
period, the aggregate of all expenditures incurred by such person during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the statement of
cash flows of such person, provided, however, that Capital Expenditures for the
U.S. Borrower and the Subsidiaries shall not include (a) expenditures to the
extent they are made with the proceeds of the issuance of Equity Interests of
Holdings after the Closing Date or with funds that would have constituted Net
Proceeds under clause (a) of the definition of the term "Net
17
Proceeds" (but that will not constitute Net Proceeds as a result of the first
proviso to such clause (a)), (b) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost,
destroyed, damaged or condemned assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed,
damaged or condemned assets, equipment or other property or otherwise to
acquire, maintain, develop, construct, improve, upgrade or repair assets or
properties useful in the business of the U.S. Borrower and the Subsidiaries
within 12 months of receipt of such proceeds, (c) interest capitalized during
such period, (d) expenditures that are accounted for as capital expenditures of
such person and that actually are paid for by a third party (excluding Holdings
or any subsidiary thereof) and for which neither Holdings nor any subsidiary
thereof has provided or is required to provide or incur, directly or indirectly,
any consideration or obligation to such third party or any other person (whether
before, during or after such period), (e) the book value of any asset owned by
such person prior to or during such period to the extent that such book value is
included as a capital expenditure during such period as a result of such person
reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period, provided
that (i) any expenditure necessary in order to permit such asset to be reused
shall be included as a Capital Expenditure during the period that such
expenditure actually is made and (ii) such book value shall have been included
in Capital Expenditures when such asset was originally acquired, (f) the
purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment traded in at the time of such purchase and (ii) the proceeds of a
concurrent sale of used or surplus equipment, in each case, in the ordinary
course of business and (g) investments in respect of a Permitted Business
Acquisition.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the U.S.
Borrower and the Subsidiaries on a consolidated basis for any period, the sum of
Interest Expense of the U.S. Borrower and the Subsidiaries for such period less
the sum of (a) pay-in-
18
kind Interest Expense, (b) to the extent included in Interest Expense (and
without duplication), the amortization of any financing fees paid by, or on
behalf of, the U.S. Borrower or any of the Subsidiaries, including such fees
paid in connection with the Restatement Transactions (including any such fees
paid by Holdings from the proceeds of distributions from the U.S. Borrower) and
(c) the amortization of debt discounts, if any, or fees in respect of Swap
Agreements.
A "Change in Control" shall be deemed to occur if:
(a) at any time, (i) Holdings shall fail to own directly,
beneficially and of record, 100% of the issued and outstanding Equity
Interests of Intermediate Holdings (or the surviving entity in any merger
of Intermediate Holdings and the U.S. Borrower pursuant to Section
6.05(b)), unless and until such time as Intermediate Holdings (or such
surviving entity) is merged with Holdings pursuant to Section 6.05(b),
(ii) Intermediate Holdings (or the surviving entity in any merger of
Intermediate Holdings and Holdings pursuant to Section 6.05(b)) shall fail
to own directly, beneficially and of record, 100% of the issued and
outstanding Equity Interests of the U.S. Borrower, unless and until such
time as Intermediate Holdings (or such surviving entity) is merged with
the U.S. Borrower pursuant to Section 6.05(b), (iii) a majority of the
seats (other than vacant seats) on the board of directors of Holdings
shall at any time be occupied by persons who were neither (A) nominated by
the board of directors of Holdings or a Permitted Holder nor (B) appointed
by directors so nominated or (iv) a "Change in Control" shall occur under
the Senior Note Indentures or the Senior Subordinated Note Indentures;
(b) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the Closing Date), other
than the Permitted Holders or any combination of the Permitted Holders,
shall own beneficially, directly or indirectly, in the aggregate Equity
Interests representing at least 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of Holdings and
the Permitted Holders own beneficially, directly or indirectly, a smaller
percentage of such ordinary voting power at such time than the Equity
Interests owned by such other person or group.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or regulation or
in the interpretation or application thereof by any Governmental Authority after
the Closing Date or
19
(c) compliance by any Lender or Issuing Bank (or, for purposes of Section
2.15(b), by any lending office of such Lender or by such Lender's or Issuing
Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date.
"Charges" shall have the meaning assigned to such term in Section
9.09.
"Closing Date" shall mean February 28, 2003.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Documentation Agent" shall have the meaning assigned to such
term in the introductory paragraph to this Agreement.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"Collateral and Guarantee Requirement" shall mean the requirement
that:
(a) the Collateral Agent shall have received (i) from Holdings,
Intermediate Holdings, the U.S. Borrower and each Domestic Subsidiary Loan
Party, a counterpart of the U.S. Collateral Agreement duly executed and
delivered on behalf of such person, (ii) from each Subsidiary listed on
Schedule 1.01(d), a counterpart of a Foreign Pledge Agreement with respect
to the amount of the Equity Interests of each Foreign Subsidiary listed
opposite such Subsidiary on such Schedule, duly executed and delivered on
behalf of such party, (iii) except as set forth on Schedule 1.01(g), from
each Foreign Subsidiary Loan Party a counterpart of a Foreign Security
Agreement and a Foreign Mortgage, duly executed and delivered on behalf of
such Foreign Subsidiary, (iv) except as set forth on Schedule 1.01(g),
from each Foreign Subsidiary Loan Party a counterpart of the Foreign
Guarantee, duly executed and delivered on behalf of each such person, (v)
from Xxxxx, a counterpart of the Xxxxx Guarantee and Foreign Pledge
Agreements, with respect to its interest in certain of the Foreign
Acquiror Notes, in each case, duly executed and delivered on behalf of
Xxxxx and (vi) from the U.S.
20
Borrower and each Domestic Subsidiary Loan Party thereto a counterpart of
the First-Tier Subsidiary Pledge Agreement, duly executed and delivered on
behalf of each such person;
(b) in the case of any person that becomes a Domestic Subsidiary
Loan Party after the Closing Date, the Collateral Agent shall have
received from such subsidiary (i) a supplement to the U.S. Collateral
Agreement, in the form specified therein, duly executed and delivered on
behalf of such Domestic Subsidiary Loan Party, (ii) if such Subsidiary
owns Equity Interests of a Foreign Subsidiary that, as a result the law of
the jurisdiction or organization of such Foreign Subsidiary, cannot be
pledged to the Collateral Agent under the U.S. Collateral Agreement, a
counterpart of a Foreign Pledge Agreement with respect to such Equity
Interests (provided that in no event shall more than 65% of the issued and
outstanding voting Equity Interests of any Foreign Subsidiary, other than
Xxxxx, be pledged to secure Obligations of the U.S. Borrower), duly
executed and delivered on behalf of such Subsidiary and (iii) a supplement
to the First-Tier Subsidiary Pledge Agreement or a Foreign Pledge
Agreement, as applicable, with respect to the portion that is not being
pledged pursuant to clause (ii) above of the Equity Interests of a Foreign
Subsidiary owned by it, duly executed and delivered on behalf of such
Subsidiary;
(c) in the case of any person that becomes a Foreign Subsidiary
Loan Party after the Closing Date, the Collateral Agent shall have
received (i) from such person (x) subject to clause (iii) of Section
5.10(f), a counterpart of a Foreign Security Agreement and (if applicable)
a Foreign Mortgage, duly executed and delivered on behalf of such person
and (y) a supplement to the Foreign Guarantee, in the form specified
therein, duly executed and delivered on behalf of such person and (ii)
from the parent of such Foreign Subsidiary, a counterpart of a Foreign
Pledge Agreement duly executed and delivered on behalf of such parent;
(d) all the issued and outstanding Equity Interests (i) of (A)
Intermediate Holdings (or the surviving entity of any merger of
Intermediate Holdings and the U.S. Borrower pursuant to Section 6.05(b)),
until such time as Intermediate Holdings (or such surviving entity) is
merged with Holdings (or the surviving entity of any merger of
Intermediate Holdings and Holdings) pursuant to Section 6.05(b), (B) the
U.S. Borrower, until such time as the U.S. Borrower is merged with
Intermediate Holdings pursuant to Section 6.05(b), (C) each Domestic
Subsidiary
21
Loan Party, (D) each Foreign Subsidiary Loan Party, (E) each Wholly Owned
Subsidiary directly owned by or on behalf of (1) the U.S. Borrower, (2) a
Subsidiary listed on Schedule 1.01(e), (3) any Domestic Subsidiary Loan
Party or (4) subject to clause (iii) of Section 5.10(f), any person that
becomes a Foreign Subsidiary Loan Party after the Closing Date, (ii) of
any other person owned on the Closing Date directly by or on behalf by any
Loan Party, subject to Section 5.10(h) and except to the extent that a
pledge of such Equity Interests would violate applicable law or a
contractual obligation binding upon such Equity Interests as of the
Closing Date and for so long as such restriction exists and (iii) subject
to Section 5.10(h), that are acquired by a Loan Party after the Closing
Date, shall have been pledged pursuant to the U.S. Collateral Agreement or
a Foreign Pledge Agreement, as applicable (provided that in no event shall
more than 65% of the issued and outstanding voting Equity Interests of any
Foreign Subsidiary, other than Xxxxx, be pledged to secure Obligations of
the U.S. Borrower), and the Collateral Agent shall have received all
certificates or other instruments (if any) representing such Equity
Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(e) all Indebtedness of Holdings, Intermediate Holdings, the U.S.
Borrower and each Subsidiary having an aggregate principal amount that has
a Dollar Equivalent in excess of $10,000,000 (other than intercompany
current liabilities incurred in the ordinary course of business in
connection with the cash management operations of the U.S. Borrower and
the Subsidiaries) that is owing to any Loan Party shall be evidenced by a
promissory note or an instrument and shall have been pledged pursuant to
the U.S. Collateral Agreement or a Foreign Pledge Agreement, as
applicable, and the Collateral Agent shall have received all such
promissory notes or instruments, together with note powers or other
instruments of transfer with respect thereto endorsed in blank;
(f) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each case, including
any supplements thereto) and perfect such Liens to the extent required by,
and with the priority required by, the Security Documents, shall have been
filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or the recording concurrently with, or
22
promptly following, the execution and delivery of each such Security
Document;
(g) the Collateral Agent shall have received (i) counterparts of
each Mortgage to be entered into on the Closing Date with respect to each
Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance, paid for
by the U.S. Borrower, issued by a nationally recognized title insurance
company insuring the Lien of each U.S. Mortgage specified on Schedule 3.18
as a valid first Lien on the Mortgaged Property described therein, free of
any other Liens except as permitted by Section 6.02 and Liens arising by
operation of law, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent may reasonably request, and (iii) such
legal opinions and other documents as the Collateral Agent may reasonably
request with respect to any such Mortgage or Mortgaged Property; and
(h) each Loan Party shall have obtained (i) all consents and
approvals required to be obtained by it in connection with (A) the
execution and delivery of all Security Documents (or supplements thereto)
to which it is a party and the granting by it of the Liens thereunder, (B)
in the case of each Domestic Subsidiary Loan Party, the performance of its
obligations thereunder and (C) in the case of each Foreign Subsidiary Loan
Party, the performance of its obligations under the Foreign Guarantee and
(ii) in the case of a Foreign Subsidiary Loan Party, all material consents
and approvals required to be obtained by it in connection with the
performance by it of its obligations under the Security Documents (other
than the Foreign Guarantee).
"Collateral Release Period" shall mean any period after the
repayment of all outstanding Tranche B Term Loans, Tranche E Term Loans and, if
applicable, Incremental Extensions of Credit during which the senior unsecured
debt obligations of the U.S. Borrower have Investment Grade Ratings (determined
without regard to any form of credit enhancement). Each Collateral Release
Period shall commence upon written notice by the U.S. Borrower to the
Administrative Agent and shall terminate on the first date following the
commencement of such Collateral Release Period on which the senior unsecured
debt obligations of the U.S. Borrower cease to have Investment Grade Ratings
(determined without regard to any form of credit enhancement).
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.12(a).
23
"Commitments" shall mean, (a) with respect to any Lender, such
Lender's Global Revolving Facility Commitment, U.S. Revolving Facility
Commitment, Tranche A Term Loan Commitment and Tranche B Term Loan Commitment,
or any commitment in respect of any Incremental Extension of Credit, and (b)
with respect to any Swingline Lender, its Swingline Dollar Commitment or
Swingline Foreign Currency Commitment, as applicable.
"Consolidated Net Income" means, with respect to any person for any
period, the aggregate of the Net Income of such person and its subsidiaries for
such period, on a consolidated basis; provided, however, that (i) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto) shall be excluded, (ii) any net after-tax gains or losses on disposal
of discontinued operations shall be excluded, (iii) any net after-tax gains or
losses (less all fees and expenses relating thereto) attributable to asset
dispositions other than in the ordinary course of business (as determined in
good faith by the U.S. Borrower) shall be excluded, (iv) the Net Income for such
period of any person that is not a subsidiary of such person, or that is
accounted for by the equity method of accounting, shall be included only to the
extent of the amount of dividends or distributions or other payments paid in
cash (or to the extent converted into cash) to the referent person or a
subsidiary thereof in respect of such period, (v) the Net Income for such period
of any subsidiary of such person shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such subsidiary
of its Net Income is not at the date of determination permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule, or governmental regulation
applicable to that subsidiary or its stockholders, unless such restriction with
respect to the payment of dividends or in similar distributions has been legally
waived, (vi) in the case of the U.S. Borrower, Consolidated Net Income for such
period shall be decreased by the amount of all payments made during such period
pursuant to Sections 6.06(b) and used by Holdings or Intermediate Holdings to
make payments that reduce the Consolidated Net Income of Holdings or
Intermediate Holdings, as applicable, for such period, (vii) Consolidated Net
Income for such period shall not include the cumulative effect of a change in
accounting principles during such period and (viii) Consolidated Net Income for
such period shall be (x) increased by the amount of the net after-tax premium
paid in respect of debt repurchases or redemptions during such period and (y)
decreased by any net after-tax gains in respect of debt repurchases or
redemptions during such period.
24
"Consolidated Total Assets" shall mean, as of any date, the total
assets of the U.S. Borrower and the consolidated Subsidiaries, determined in
accordance with GAAP, as set forth on the consolidated balance sheet of the U.S.
Borrower as of such date.
"Consolidated Total Debt" at any date shall mean the sum of (without
duplication), (a) all Indebtedness consisting of Capital Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of the deferred
purchase price of property or services of the U.S. Borrower and the Subsidiaries
determined on a consolidated basis on such date plus (b) the "Aggregate
Principal Balance" (as defined in the Receivables Loan Agreement) or any
analogous term in any replacement or amendment of the Receivables Loan Agreement
plus, (c) without duplication, the aggregate principal amount of any financing
of, or Net Investment in, accounts receivable that constitutes a Permitted
Receivables Financing.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Co-Syndication Agent" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"Credit Event" shall have the meaning assigned to such term in
Article IV.
"Cumulative Net Income Amount" shall mean, at any time, an amount
equal to (a) the product of (i) Consolidated Net Income for the period (taken as
one accounting period) commencing January 1, 2005 to the end of the most
recently completed fiscal quarter for which financial statements are delivered
pursuant to Section 5.04 and (ii) 0.50, minus (b) the aggregate amount of such
Consolidated Net Income that has been utilized, or committed to be utilized,
prior to such time to purchase or redeem, or pay dividends or make other
distributions in respect of, Equity Interests of Holdings pursuant to Section
6.06(e)(ii), minus (c) the aggregate amount of such Consolidated Net Income that
has been utilized, or committed to be utilized, prior to such time to purchase,
redeem, retire or otherwise acquire Senior Notes, Senior Subordinated Notes or
Permitted Notes Refinancing Indebtedness pursuant to clause (E)(2) of Section
6.09(b)(i).
"Cure Amount" shall have the meaning provided in Section 7.03.
25
"Cure Right" shall have the meaning provided in Section 7.03.
"Current Assets" shall mean, with respect to the U.S. Borrower and
the Subsidiaries on a consolidated basis at any date of determination, the sum
of (a) all assets (other than cash and Permitted Investments or other cash
equivalents) that would, in accordance with GAAP, be classified on a
consolidated balance sheet of the U.S. Borrower and the Subsidiaries as current
assets at such date of determination, other than amounts related to current or
deferred Taxes based on income or profits (including the Michigan Single
Business Tax and similar Taxes) and (b) in the event that the Permitted
Receivables Financing is accounted for off-balance sheet, (x) gross accounts
receivable sold by the U.S. Borrower or any Subsidiary pursuant to a Permitted
Receivables Financing less (y) collections against the amounts sold pursuant to
clause (x).
"Current Liabilities" shall mean, with respect to the U.S. Borrower
and the Subsidiaries on a consolidated basis at any date of determination, all
liabilities that would, in accordance with GAAP, be classified on a consolidated
balance sheet of the U.S. Borrower and the Subsidiaries as current liabilities
at such date of determination, other than (a) the current portion of any debt or
Capital Lease Obligations, (b) accruals of Interest Expense (excluding Interest
Expense that is due and unpaid), (c) accruals for current or deferred Taxes
based on income or profits (including the Michigan Single Business Tax and
similar Taxes), (d) accruals, if any, of transaction costs resulting from the
Transactions, (e) accruals of any costs or expenses related to (i) severance or
termination of employees prior to the Closing Date or (ii) bonuses, pension and
other post-retirement benefit obligations, (f) the current portion of the
obligations of the U.S. Borrower and the Subsidiaries under the Trust Agreement
between Xxxxx and Fidelity Management Trust dated as of October 1, 1995, with
respect to the Varity Automotive Inc. Deferred Compensation Plan and the Varity
Automotive Inc. Deferred Compensation Trust Agreement dated as of November 1,
1997, with respect to the Varity Automotive Supplemental Compensation and
Deferred Compensation Plan and (g) accruals for add-backs to EBITDA included in
clauses (a)(v) through (a)(ix) of paragraph (B) of the definition of such term.
"Debt Service" shall mean, with respect to the U.S. Borrower and the
Subsidiaries on a consolidated basis for any period, Cash Interest Expense for
such period plus scheduled principal amortization of Consolidated Total Debt for
such period (whether or not such payments are made).
26
"Default" shall mean any event or condition that upon notice, lapse
of time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender or Ancillary Lender with
respect to which a Lender Default is in effect.
"Designated Non-Cash Consideration" shall mean all non-cash
consideration received by the U.S. Borrower or any Subsidiary in respect of any
sale, transfer or other disposition of assets pursuant to Section 6.05(h) that
is designated as Designated Non-Cash Consideration pursuant to a certificate of
a Responsible Officer, which certificate shall set forth the fair market value
of such Designated Non-Cash Consideration and the basis of such valuation.
"Dividend Payment Amount" shall mean (a) at any time during the
fiscal year ending December 31, 2005, an amount equal to (i) $50,000,000, minus
(ii) the aggregate amount of payments made during such fiscal year and prior to
such time pursuant to Section 6.06(e)(i) and (b) at any time during each fiscal
year thereafter, an amount equal to (i) $25,000,000, plus (ii) any portion of
the Dividend Payment Amount for prior fiscal years not utilized to make payments
pursuant to Section 6.06(e)(i) during such prior fiscal years, minus (iii) the
aggregate amount of payments made during the current fiscal year and prior to
such time pursuant to Section 6.06(e)(i).
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean, on any date of determination (a)
with respect to any amount in Dollars, such amount, and (b) with respect to any
amount in any Foreign Currency, the equivalent in Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.03(b) using the
Exchange Rate with respect to such Foreign Currency at the time in effect under
the provisions of such Section.
"Dollar Letter of Credit" shall mean a Letter of Credit denominated
in Dollars.
"Domestic Subsidiary Loan Party" shall mean each Wholly Owned
Subsidiary that is not (a) a Foreign Subsidiary, (b) the Receivables Subsidiary,
(c) the Transferor or (d) listed on Schedule 1.01(h).
"EBITDA" shall mean, with respect to the U.S. Borrower and the
Subsidiaries on a consolidated basis for any period:
27
(A) for purposes only of calculating the Leverage Ratio in connection with
the determination of the Applicable Margin in respect of the Existing Revolving
Loans, the Consolidated Net Income of the U.S. Borrower and the Subsidiaries for
such period
PLUS (a) the sum of (in each case without duplication and to the
extent the respective amounts described in subclauses (i) through
(x) of this clause (a) reduced such Consolidated Net Income for the
respective period for which EBITDA is being determined) (i)
provision for Taxes based on income or profits of the U.S. Borrower
and the Subsidiaries (including the Michigan Single Business Tax and
similar Taxes) for such period and provision for Taxes based on
income or profits of Holdings and Intermediate Holdings during such
period to the extent paid using the proceeds of dividends made by
the U.S. Borrower in accordance with Section 6.06(b), (ii) Interest
Expense of the U.S. Borrower and the Subsidiaries for such period,
(iii) depreciation and amortization expense of the U.S. Borrower and
the Subsidiaries for such period, (iv) any fees, expenses or charges
related to any equity offering, any investment or acquisition
permitted hereunder or occurring prior to the Closing Date, any
recapitalization permitted hereunder or any Indebtedness permitted
to be incurred hereunder (whether or not successful) and fees,
expenses, charges or change of control payments related to the
Transactions (including fees to the Fund and Fund Affiliates) or the
acquisition by Northrop Grumman Corporation of TRW Inc., (v) the
amount of any cash restructuring or other nonrecurring charges
incurred not in excess of (A) $30,000,000 in fiscal year 2004 or (B)
$50,000,000 in any fiscal year thereafter, (vi) any other noncash
charges, including increases in costs of sales resulting from
purchase accounting in relation to the Transactions or any
acquisition (but excluding any such charge which requires an accrual
of a cash reserve for anticipated cash charges for any future
period), (vii) the amount of any minority interest expense, (viii)
noncash exchange, translation or performance losses relating to any
foreign currency hedging transactions or currency fluctuations, (ix)
the amount of management, consulting, monitoring and
28
advisory fees paid to the Fund and/or Fund Affiliates (or any
accruals related to such fees) during such period not to exceed
$7,500,000 during any four quarter period and (x) any expense
relating to defined benefits pension or post-retirement benefit
plans (provided that, for purposes of subclauses (vi) and (viii) of
this clause (a), any noncash charges or losses shall be treated as
cash charges or losses in any subsequent period during which cash
disbursements attributable thereto are made),
MINUS (b) the sum of (in each case without duplication and to the
extent the respective amounts described in subclauses (i) through
(iii) and (v) of this clause (b) increased such Consolidated Net
Income for the respective period for which EBITDA is being
determined) (i) the amount of any minority interest income, (ii)
noncash exchange, translation or performance gains relating to any
foreign currency hedging transactions or currency fluctuations,
(iii) any income relating to defined benefits pension or
post-retirement benefit plans, (iv) any cash payment relating to
defined benefits pension or post-retirement benefit plans net of any
amounts receivable from Northrop Grumman Corporation pursuant to the
Purchase Agreement for post-retirement benefits plans (provided that
any such amounts calculated pursuant to this clause (iv) shall be
reduced by $35,000,000 with respect to fiscal year 2004, and
$20,000,000 with respect to fiscal year 2005) and (v) noncash items
increasing Consolidated Net Income of the U.S. Borrower and the
Subsidiaries for such period (but excluding any such items (A) in
respect of which cash was received in a prior period or will be
received in a future period or (B) which represent the reversal of
any accrual of, or cash reserve for, anticipated cash charges in any
prior period); and
(B) for all other purposes under this Agreement, the Consolidated Net
Income of the U.S. Borrower and the Subsidiaries for such period:
PLUS (a) the sum of (in each case without duplication and to the
extent the respective amounts described in subclauses (i) through
(ix) of this clause (a) reduced such Consolidated Net
29
Income for the respective period for which EBITDA is being
determined) (i) provision for Taxes based on income or profits of
the U.S. Borrower and the Subsidiaries (including the Michigan
Single Business Tax and similar Taxes) for such period and provision
for Taxes based on income or profits of Holdings and Intermediate
Holdings during such period to the extent paid using the proceeds of
dividends made by the U.S. Borrower in accordance with Section
6.06(b), (ii) Interest Expense of the U.S. Borrower and the
Subsidiaries for such period, (iii) depreciation and amortization
expense of the U.S. Borrower and the Subsidiaries for such period,
(iv) any fees, expenses or charges related to any equity offering,
any investment or acquisition permitted hereunder or occurring prior
to the Closing Date, any recapitalization permitted hereunder or any
Indebtedness permitted to be incurred hereunder (whether or not
successful) and fees, expenses, charges or change of control
payments related to the Transactions (including fees to the Fund and
Fund Affiliates) or the acquisition by Northrop Grumman Corporation
of TRW Inc., (v) the amount of any cash restructuring or other
nonrecurring charges incurred not in excess of (A) $30,000,000 in
fiscal year 2004 or (B) $50,000,000 in any fiscal year thereafter,
(vi) any other noncash charges, including increases in costs of
sales resulting from purchase accounting in relation to the
Transactions or any acquisition (but excluding any such charge which
requires an accrual of a cash reserve for anticipated cash charges
for any future period and any noncash expense relating to defined
benefits pension or post-retirement benefit plans), (vii) the amount
of any minority interest expense, (viii) noncash exchange,
translation or performance losses relating to any foreign currency
hedging transactions or currency fluctuations and (ix) the amount of
management, consulting, monitoring and advisory fees paid to the
Fund and/or Fund Affiliates (or any accruals related to such fees)
during such period not to exceed $7,500,000 during any four quarter
period (provided that, for purposes of subclauses (vi) and (viii) of
this clause (a), any noncash charges or losses shall be treated as
cash charges or losses in any subsequent period during
30
which cash disbursements attributable thereto are made),
MINUS (b) the sum of (in each case without duplication and to the
extent the respective amounts described in subclauses (i) through
(iii) of this clause (b) increased such Consolidated Net Income for
the respective period for which EBITDA is being determined) (i) the
amount of any minority interest income, (ii) noncash exchange,
translation or performance gains relating to any foreign currency
hedging transactions or currency fluctuations and (iii) noncash
items increasing Consolidated Net Income of the U.S. Borrower and
the Subsidiaries for such period (but excluding any such items (A)
in respect of which cash was received in a prior period or will be
received in a future period, (B) which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any
prior period) or (C) which constitute noncash gains or income
relating to defined benefits pension or post-retirement benefit
plans).
"Effective Funding Date" shall mean the date on which (a) the Tranche A
Term Borrowings, Tranche B Term Borrowings and New Revolving Borrowings are
converted or made pursuant to Section 2.01 and (b) all Tranche A-1 Term
Borrowings, Tranche D Term Borrowings and Existing Revolving Borrowings are
converted or repaid in full.
"Effective Funding Time" shall mean the time on the Effective Funding Date
at which all Tranche A-1 Term Loans, Tranche D Term Loans and Existing Revolving
Loans are repaid with the proceeds of, or (in the case of Tranche A-1 Term Loans
and Tranche D-1 Term Loans) are converted into, Tranche A Loans, Tranche B Loans
and New Revolving Loans, respectively, pursuant to Section 2.01.
"Eligible Borrower" shall mean the U.S. Borrower or any Foreign Subsidiary
Borrower that has been designated under Section 2.20 to make Borrowings under
the Global Revolving Facilities.
"EMU Legislation" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states of the European Union.
31
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Laws" shall mean all applicable laws (including
common law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, release or
threatened release of, or exposure to, any Hazardous Material or to health and
safety matters (to the extent relating to the environment or Hazardous
Materials).
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation or remediation, fines, penalties or indemnities), of Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries directly or
indirectly resulting from or based upon (a) a violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment, or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Contributions" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with Holdings, Intermediate Holdings, the U.S.
Borrower or a Subsidiary is treated as a single employer under Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the Code.
32
"ERISA Event" shall mean (a) any Reportable Event; (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Holdings, Intermediate Holdings, the U.S. Borrower,
a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by Holdings,
Intermediate Holdings, the U.S. Borrower, a Subsidiary or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or to appoint a trustee to administer any Plan under Section
4042 of ERISA; (f) the incurrence by Holdings, Intermediate Holdings, the U.S.
Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by Holdings, Intermediate Holdings, the U.S. Borrower, a Subsidiary
or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from Holdings, Intermediate Holdings, the U.S. Borrower, a Subsidiary or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "(euro)" shall mean the single currency of the European
Union as constituted by the treaty establishing the European Community being the
Treaty of Rome, as amended from time to time and as referred to in the EMU
Legislation.
"Euro Equivalent" shall mean, on any date of determination, (a) with
respect to any amount in Euros, such amount and (b) with respect to any amount
in Dollars or any Foreign Currency other than Euros, the equivalent in Euros of
such amount or determined by the Administrative Agent pursuant to Section
1.03(b) using the Exchange Rate with respect to such currency of the time in
effect under the provisions of such Section.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Term Loan or
Eurocurrency Revolving Loan.
"Eurocurrency Revolving Borrowing" shall mean a Borrowing comprised
of Eurocurrency Revolving Loans.
33
"Eurocurrency Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Term Loan" shall mean any Term Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning given such term in Section
7.01.
"Excess Cash Flow" shall mean, with respect to the U.S. Borrower and
the Subsidiaries on a consolidated basis for any Excess Cash Flow Period, EBITDA
of the U.S. Borrower and the Subsidiaries on a consolidated basis for such
Excess Cash Flow Period,
MINUS, without duplication, (a) Debt Service for such Excess Cash
Flow Period, (b) (i) any voluntary prepayments of Term Loans during such
Excess Cash Flow Period, (ii) any permanent voluntary reductions during
such Excess Cash Flow Period of Revolving Credit Commitments to the extent
that an equal amount of Revolving Loans was simultaneously repaid and
(iii) any voluntary prepayment permitted hereunder of term Indebtedness
during such Excess Cash Flow Period to the extent not financed, or
intended to be financed, using the proceeds of the incurrence of
Indebtedness, so long as the amount of such prepayment is not already
reflected in Debt Service, (c) (i) Capital Expenditures by the U.S.
Borrower and the Subsidiaries on a consolidated basis during such Excess
Cash Flow Period (excluding Capital Expenditures made in such Excess Cash
Flow Period where a certificate in the form contemplated by the following
clause (d) was previously delivered) that are paid in cash and (ii) the
aggregate consideration paid in cash during such Excess Cash Flow Period
in respect of Permitted Business Acquisitions and other investments
permitted hereunder (less any amounts received in respect thereof as a
return of capital), (d) Capital Expenditures that the U.S. Borrower or any
Subsidiary shall, during such Excess Cash Flow Period, become obligated to
make but that are not made during such Excess Cash Flow Period, provided
that the U.S. Borrower shall deliver a certificate to the Administrative
Agent not later than 90 days after the end of such Excess Cash Flow
Period, signed by a Responsible Officer of the U.S. Borrower and
certifying that such Capital Expenditures and the delivery of the related
equipment will be made in the following Excess Cash Flow
34
Period, (e) Taxes paid in cash by the U.S. Borrower and the Subsidiaries
on a consolidated basis during such Excess Cash Flow Period or that will
be paid within six months after the close of such Excess Cash Flow Period
(provided that any amount so deducted that will be paid after the close of
such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period) and for which reserves have been established,
including income tax expense and withholding tax expense incurred in
connection with cross-border transactions involving the Foreign
Subsidiaries, (f) an amount equal to any increase in Working Capital of
the U.S. Borrower and the Subsidiaries for such Excess Cash Flow Period,
(g) to the extent not deducted in determining EBITDA, consulting,
monitoring and advisory fees paid to the Fund and Fund Affiliates during
such Excess Cash Flow Period, (h) cash expenditures made in respect of
Swap Agreements during such Excess Cash Flow Period, to the extent not
reflected in the computation of EBITDA or Interest Expense, (i) permitted
dividends or distributions or repurchases of its Equity Interests paid in
cash by Holdings during such Excess Cash Flow Period and permitted
dividends paid by the U.S. Borrower or by any Subsidiary to any person
other than the U.S. Borrower or any of the other Subsidiaries during such
Excess Cash Flow Period, in each case in accordance with Section 6.06, (j)
amounts paid in cash during such Excess Cash Flow Period on account of (x)
items that were accounted for as noncash reductions of the Consolidated
Net Income of the U.S. Borrower and the Subsidiaries in a prior Excess
Cash Flow Period and (y) reserves or accruals established in purchase
accounting, (k) extraordinary special charges or any nonrecurring loss
paid in cash during such Excess Cash Flow Period, (l) to the extent not
deducted in the computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of any
mandatory prepayment of Indebtedness (other than Indebtedness created
hereunder or under any other Loan Document), together with any interest,
premium or penalties required to be paid (and actually paid) in connection
therewith, (m) the amount, if any, by which consolidated deferred revenues
of the U.S. Borrower and the Subsidiaries decreased during such Excess
Cash Flow Period, (n) the amount related to items that were added to
Consolidated Net Income in calculating EBITDA to the extent such items
represented a cash payment, or an accrual for a cash payment, by the U.S.
Borrower and the Subsidiaries on a consolidated basis during such Excess
Cash Flow Period, (o) the amount of minority interest expense added to
Consolidated Net Income in calculating EBITDA for such
35
Excess Cash Flow Period and (p) any income relating to defined benefits
pension or post-retirement benefit plans and any cash payment relating to
defined benefits pension or post-retirement benefit plans net of any
amounts received by Holdings, Intermediate Holdings, the U.S. Borrower or
any Subsidiary from Northrop Grumman Corporation pursuant to the Purchase
Agreement for post-retirement benefit plans,
PLUS, without duplication, (q) an amount equal to any decrease in
Working Capital for such Excess Cash Flow Period, (r) all proceeds
received during such Excess Cash Flow Period of Capital Lease Obligations,
purchase money Indebtedness, Sale and Lease-Back Transactions pursuant to
Section 6.03 and any other Indebtedness, in each case to the extent used
to finance any Capital Expenditure (other than Indebtedness under this
Agreement to the extent there is no corresponding deduction to Excess Cash
Flow above in respect of the use of such Borrowings), (s) all amounts
referred to in clause (c) above to the extent funded with the proceeds of
the issuance of Equity Interests of, or capital contributions to, Holdings
after the Closing Date (to the extent not previously used to prepay
Indebtedness (other than Revolving Loans or Swingline Loans), make any
investment or capital expenditure or otherwise for any purpose resulting
in a deduction to Excess Cash Flow in any prior Excess Cash Flow Period)
or any amount that would have constituted Net Proceeds under clause (a) of
the definition of the term "Net Proceeds" if not so spent, in each case to
the extent there is a corresponding deduction from Excess Cash Flow above,
(t) to the extent any Capital Expenditures and the corresponding delivery
of equipment referred to in clause (d) above do not occur in the Excess
Cash Flow Period of the U.S. Borrower specified in the certificate of the
U.S. Borrower provided pursuant to clause (d) above, the amount of such
Capital Expenditures that were not so made in the Excess Cash Flow Period
of the U.S. Borrower specified in such certificates, (u) cash payments
received in respect of Swap Agreements during such Excess Cash Flow Period
to the extent (i) not included in the computation of EBITDA or (ii) such
payments do not reduce Cash Interest Expense, (v) any extraordinary or
nonrecurring gain realized in cash during such Excess Cash Flow Period
(except to the extent such gain consists of Net Proceeds subject to
Section 2.11(c)), (w) to the extent deducted in the computation of EBITDA,
interest income, (x) the amount, if any, by which consolidated deferred
revenues of the U.S. Borrower and the Subsidiaries increased during such
Excess Cash Flow Period, (y) the
36
amount related to items that were deducted from Consolidated Net Income in
calculating EBITDA to the extent such items represented cash received by
the U.S. Borrower and the Subsidiaries on a consolidated basis during such
Excess Cash Flow Period, (z) the amount of minority interest income
deducted from Consolidated Net Income in calculating EBITDA for such
Excess Cash Flow Period and (aa) any expense relating to defined benefits
pension or post-retirement benefit plans.
"Excess Cash Flow Period" shall mean (i) the period taken as one
accounting period beginning on January 1, 2005 and ending on December 31, 2005,
and (ii) each fiscal year of the U.S. Borrower ended thereafter.
"Exchange Rate" shall mean on any day, for purposes of determining
the Dollar Equivalent or Euro Equivalent of any other currency, the rate at
which such other currency may be exchanged into Dollars or Euros (as
applicable), as set forth at approximately 11:00 a.m., London time, on such day
on the Reuters World Currency Page for such currency. In the event that such
rate does not appear on any Reuters World Currency Page, the Exchange Rate shall
be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the U.S. Borrower, or, in the absence of such an agreement, such Exchange Rate
shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or about
10:00 a.m., Local Time, on such date for the purchase of Dollars or Euros (as
applicable) for delivery two Business Days later; provided that if at the time
of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" shall mean, with respect to the Agents, any Lender,
any Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of a Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by a Borrower under Section
2.19(b)), any withholding tax (other
37
than a withholding tax levied upon any amounts payable to such Foreign Lender in
respect of any interest in any Loan or Ancillary Credit Extension acquired by
such Foreign Lender pursuant to Section 11.01) that is in effect and would apply
to amounts payable hereunder to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from a Borrower with respect to any withholding tax
pursuant to Section 2.17(a).
"Exempted Intercompany Investment" shall mean (a)(i) any investment
or series of related investments (valued at the time of the making thereof) by
any Borrower or Subsidiary Loan Party in any Subsidiary that is not a Loan
Party, (ii) any intercompany loan or series of related intercompany loans by any
Borrower or Subsidiary Loan Party to any Subsidiary that is not a Loan Party or
(iii) any Guarantee or series of related Guarantees provided by any Borrower or
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan
Party, in each case in an amount not in excess of $10,000,000 and (b) any
keep-well or similar contingent arrangement provided to Automotive Holdings
(France), S.A.S. by a Loan Party (provided that amounts paid in respect of any
such keep-well or similar arrangement shall not constitute an Exempted
Intercompany Investment).
"Existing Available Unused Commitment" shall mean, with respect to
any Global Revolving Facility Lender at any time prior to the Effective Funding
Time, an amount equal to the amount by which (a) the Existing Global Revolving
Facility Commitment of such Global Revolving Facility Lender at such time
exceeds (b) the sum of (x) the Existing Global Revolving Facility Credit
Exposure of such Global Revolving Facility Lender at such time and (y) the
Ancillary Commitment (if any) of such Global Revolving Facility Lender at such
time. For purposes of calculating any Global Revolving Facility Lender's
Existing Available Unused Commitment in connection with an Ancillary Replacement
Borrowing, the amount of the Ancillary Commitment of such Global Revolving
Facility Lender shall be reduced by the amount of the Ancillary Commitment being
terminated.
"Existing Credit Agreement" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Existing Global Revolving Facility" shall mean the Existing Global
Revolving Facility Commitments and the extensions of credit made thereunder by
the applicable Global Revolving Facility Lenders.
38
"Existing Global Revolving Facility Commitment" shall mean, with
respect to each Global Revolving Facility Lender, the commitment of such Global
Revolving Facility Lender to make Existing Global Revolving Facility Loans
pursuant to Section 2.01, expressed as an amount representing the maximum
aggregate permitted amount of such Global Revolving Facility Lender's Existing
Global Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender under
Section 9.04. The amount of each Global Revolving Facility Lender's Existing
Global Revolving Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Global Revolving Facility
Lender shall have assumed its Existing Global Revolving Facility Commitment, as
applicable. The aggregate amount of the Existing Global Revolving Facility
Commitments on the date hereof is $325,000,000.
"Existing Global Revolving Facility Credit Exposure" shall mean, at
any time prior to the Effective Funding Time, the sum of (a) the aggregate
principal amount of the Existing Global Revolving Facility Loans denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the aggregate
principal amount of the Existing Global Revolving Facility Loans denominated in
a Foreign Currency outstanding at such time and (c) the Swingline Foreign
Currency Exposure at such time. The Existing Global Revolving Facility Credit
Exposure of any Global Revolving Facility Lender at any time prior to the
Effective Funding Time shall be the sum of (a) the aggregate principal amount of
such Global Revolving Facility Lender's Existing Global Revolving Facility Loans
denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of
the aggregate principal amount of such Global Revolving Facility Lender's
Existing Global Revolving Facility Loans denominated in a Foreign Currency
outstanding at such time and (c) such Global Revolving Facility Lender's ratable
share (based on Existing Available Unused Commitments) of the Swingline Foreign
Currency Exposure at such time.
"Existing Global Revolving Facility Lender" shall mean a Lender with
an Existing Global Revolving Facility Commitment or with outstanding Existing
Global Revolving Facility Loans.
"Existing Global Revolving Facility Loan" shall mean a Loan made by
a Global Revolving Facility Lender in respect of an Existing Global Revolving
Facility Commitment pursuant to Section 2.01. Each Existing Global Revolving
Facility Loan denominated in Dollars shall be a Eurocurrency Loan or an ABR
39
Loan, and each Existing Global Revolving Facility Loan denominated in a Foreign
Currency shall be a Eurocurrency Loan.
"Existing Revolving Loans" shall mean the Existing Global Revolving
Facility Loans and the Existing U.S. Revolving Facility Loans.
"Existing U.S. Revolving Facility" shall mean the Existing U.S.
Revolving Facility Commitments and the extensions of credit made hereunder in
respect thereof by the U.S. Revolving Facility Lenders.
"Existing U.S. Revolving Facility Commitment" shall mean, with
respect to each U.S. Revolving Facility Lender, the commitment of such U.S.
Revolving Facility Lender to make Existing U.S. Revolving Facility Loans
pursuant to Section 2.01, expressed as an amount representing the maximum
aggregate permitted amount of such Lender's Existing U.S. Revolving Facility
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
amount of each Existing U.S. Revolving Facility Lender's Existing U.S. Revolving
Facility Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such U.S. Revolving Facility Lender shall have
assumed its Existing U.S. Revolving Facility Commitment, as applicable. The
aggregate amount of the Existing U.S. Revolving Facility Commitments on the date
hereof is $175,000,000.
"Existing U.S. Revolving Facility Credit Exposure" shall mean, at
any time prior to the Effective Funding Time, the sum of (a) the aggregate
principal amount of the Existing U.S. Revolving Facility Loans outstanding at
such time, (b) the Swingline Dollar Exposure at such time and (c) the Revolving
L/C Exposure at such time. The Existing U.S. Revolving Facility Credit Exposure
of any Lender at any time prior to the Effective Funding Time shall be such
Lender's Existing U.S. Revolving Facility Percentage of the Existing U.S.
Revolving Facility Credit Exposure at such time.
"Existing U.S. Revolving Facility Lender" shall mean a Lender with
an Existing U.S. Revolving Facility Commitment or with outstanding Existing U.S.
Revolving Facility Loans.
"Existing U.S. Revolving Facility Loan" shall mean a Loan made by a
U.S. Revolving Facility Lender in respect of an Existing U.S. Revolving Facility
Commitment pursuant to Section 2.01. Each Existing U.S. Revolving Facility Loan
shall be a Eurocurrency Loan or an ABR Loan.
40
"Existing U.S. Revolving Facility Percentage" shall mean, with
respect to any Existing U.S. Revolving Facility Lender, the percentage of the
total Existing U.S. Revolving Facility Commitments represented by such Lender's
Existing U.S. Revolving Facility Commitment. If the Existing U.S. Revolving
Facility Commitments have terminated or expired, the Existing U.S. Revolving
Facility Percentages shall be determined based upon the Existing U.S. Revolving
Facility Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04.
"Facility" shall mean the respective facility and commitments
utilized in making Loans and credit extensions hereunder, it being understood
that (a) prior to the Effective Funding Time, there are six Facilities, i.e.,
the Tranche A-1 Facility, the Tranche D-1 Facility, the Tranche D-2 Facility,
the Tranche E Facility, the Existing Global Revolving Facility and the Existing
U.S. Revolving Facility and (b) at and after the Effective Funding Time, there
will be five Facilities, i.e., the Tranche A Facility, the Tranche B Facility,
the Tranche E Facility, the New Global Revolving Facility and the New U.S.
Revolving Facility.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fees, the L/C Participation Fees,
the Issuing Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any person shall mean the Chief Financial
Officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such person.
"Financial Performance Covenants" shall mean the covenants of the
U.S. Borrower set forth in Sections 6.11 and 6.12.
"Xxxxx" shall mean TRW Automotive Finance (Luxembourg) S.A X.X., a
company organized under the laws of Luxembourg and a Wholly Owned Subsidiary.
41
"Xxxxx Equity Contribution" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Xxxxx Guarantee" shall mean the Xxxxx Guarantee Agreement, in the
form of Exhibit G, between Xxxxx and the Collateral Agent, as amended,
supplemented or otherwise modified from time to time.
"Xxxxx Loan" shall mean the loan from the U.S. Borrower to Xxxxx on
the Closing Date in an aggregate principal amount equal to approximately
$681,501,000 out of the proceeds of Loans made to the U.S. Borrower on the
Closing Date, which loan has been evidenced by a note and pledged pursuant to
the Collateral and Guarantee Requirement.
"First Amended and Restated Credit Agreement" shall have the meaning
assigned to such term in the preamble to this Agreement.
"First Amendment and Restatement Agreement" shall have the meaning
assigned to such term in the preamble to this Agreement.
"First-Tier Subsidiary Pledge Agreement" shall mean the First-Tier
Subsidiary Pledge Agreement among the Subsidiaries party thereto and the
Collateral Agent.
"Foreign Acquiror Equity Contributions" shall mean direct or
indirect equity contributions from the U.S. Borrower to each Foreign Acquiror on
the Closing Date in the respective amount set forth on Schedule 1.01(b) in
exchange for all the issued and outstanding Equity Interests of such Foreign
Acquiror.
"Foreign Acquiror Loans" shall mean loans from Xxxxx to the Foreign
Acquirors on the Closing Date in the respective principal amounts set forth on
Schedule 1.01(b) out of the proceeds of the Xxxxx Loan, which loans are
evidenced by notes or other instruments reasonably satisfactory to the
Collateral Agent.
"Foreign Acquirors" shall mean the Wholly Owned Subsidiaries set
forth on Schedule 1.01(b).
"Foreign Currency" shall mean (a) with respect to an Ancillary
Facility, any currency reasonably acceptable to the Administrative Agent that is
freely available, freely transferable and freely convertible into Dollars and
(b) otherwise, Euros and Sterling.
"Foreign Currency Letter of Credit" shall mean a Letter of Credit
denominated in a Foreign Currency.
42
"Foreign Guarantee" shall mean the Foreign Guarantee Agreement, in
the form of Exhibit F, among the Foreign Subsidiary Loan Parties and the
Collateral Agent, as amended, supplemented or otherwise modified from time to
time.
"Foreign Lender" shall mean any Lender that is organized under the
laws of a jurisdiction other than that in which the U.S. Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Mortgages" shall mean the mortgages, deeds of trust,
charges, assignments of leases and rents and other security documents delivered
on or prior to the Restatement Effective Date with respect to Mortgaged
Properties located outside the United States of America or pursuant to Section
5.10, each in form and substance reasonably satisfactory to the Collateral
Agent.
"Foreign Perfection Certificate" shall mean a certificate with
respect to a Foreign Subsidiary Loan Party in the form approved by the
Collateral Agent.
"Foreign Pledge Agreement" shall mean (a) each pledge agreement
listed on Schedule 1.01(d) and (b) each other pledge agreement with respect to
the Pledged Collateral delivered pursuant to Section 5.10 with respect to a
Foreign Subsidiary Loan Party or Foreign Subsidiary, in form and substance
reasonably satisfactory to the Collateral Agent, in each case, as amended,
supplemented or otherwise modified from time to time.
"Foreign Security Agreement" shall mean one or more security
agreements, charges, mortgages or pledges with respect to the Collateral (other
than Pledged Collateral or Collateral that is subject to a Foreign Mortgage) of
a Foreign Subsidiary Loan Party, each in form and substance reasonably
satisfactory to the Collateral Agent, as amended, supplemented or otherwise
modified from time to time.
"Foreign Subsidiary" shall mean any Subsidiary that is incorporated
or organized under the laws of any jurisdiction other than the United States of
America, any State thereof or the District of Columbia.
"Foreign Subsidiary Borrower" shall mean, at any time, each Foreign
Subsidiary Loan Party that (a) has entered into a Restatement Effective Date
Foreign Subsidiary Borrower Agreement or (b) has been designated as a Foreign
Subsidiary Borrower by the U.S. Borrower pursuant to Section 2.20, other than a
Foreign
43
Subsidiary Borrower that has ceased to be a Foreign Subsidiary Borrower
as provided in Section 2.20.
"Foreign Subsidiary Borrower Agreement" shall mean a Foreign
Subsidiary Borrower Agreement substantially in the form of Exhibit K-1.
"Foreign Subsidiary Borrower Termination" shall mean a Foreign
Subsidiary Borrower Termination substantially in the form of Exhibit J-2.
"Foreign Subsidiary Loan Party" shall mean (a) each Foreign
Subsidiary that is set forth on Schedule 1.01(e) and (b) each Wholly Owned
Foreign Subsidiary that has met the requirements of Section 5.10(f) after the
Restatement Effective Date.
"Fortuna" means Fortuna Assurance Company, a captive insurance
company that provides insurance coverage solely for the benefit of the U.S.
Borrower and the Subsidiaries.
"Fund" shall mean Blackstone Capital Partners IV Merchant Banking
Fund L.P., a Delaware limited partnership.
"Fund Affiliate" shall mean (i) each Affiliate of the Fund that is
neither an operating company nor a company controlled by an operating company
and (ii) each general partner of the Fund or any Fund Affiliate who is a partner
or employee of the Blackstone Group L.P.
"Funded Ancillary Credit Extension" shall mean, at any time, an
extension of credit under an Ancillary Facility in respect of which the
applicable Ancillary Lender has advanced funds to, or on behalf of, the Foreign
Subsidiary Borrower thereunder.
"GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States, applied on a consistent basis.
"Global Lending Office" shall mean, as to any Global Revolving
Facility Lender, the applicable branch, office or Affiliate of such Global
Revolving Facility Lender designated by such Global Revolving Facility Lender to
make Loans denominated in a Foreign Currency.
"Global Revolving Facilities" shall mean (a) prior to the Effective
Funding Time, the Existing Global Revolving Facility and (b) at or after the
Effective Funding Time, the New Global Revolving Facility.
44
"Global Revolving Facility Borrowing" shall mean a Borrowing
comprised of Global Revolving Facility Loans.
"Global Revolving Facility Commitment" shall mean (a) prior to the
Effective Funding Time, an Existing Global Revolving Facility Commitment and (b)
at or after the Effective Funding Time, a New Global Revolving Facility
Commitment.
"Global Revolving Facility Credit Exposure" shall mean (a) prior to
the Effective Funding Time, the Existing Global Revolving Facility Credit
Exposure and (b) at and after the Effective Funding Time, the New Global
Revolving Facility Credit Exposure.
"Global Revolving Facility Lender" shall mean an Existing Global
Revolving Facility Lender or a New Global Revolving Facility Lender, as
applicable.
"Global Revolving Facility Loans" shall mean (a) prior to the
Effective Funding Time, the Existing Global Revolving Facility Loans and (b) at
or after the Effective Funding Time, the New Global Revolving Facility Loans.
"Governmental Authority" shall mean any federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person (the "guarantor") shall mean (a) any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take-or-pay or otherwise) or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, (iv) entered into for the purpose of assuring
in any other manner the holders of such Indebtedness or other obligation of the
payment thereof or to protect such holders against loss in respect thereof (in
whole or in part) or (v) as an account party
45
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or other obligation, or (b) any Lien on any assets of the guarantor
securing any Indebtedness (or any existing right, contingent or otherwise, of
the holder of Indebtedness to be secured by such a Lien) of any other person,
whether or not such Indebtedness or other obligation is assumed by the
guarantor; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition
of assets permitted under this Agreement.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Holdings" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Holdings Common Stock" shall mean common stock issued by Holdings.
"Holdings Equity Contribution" shall have the meaning assigned to
such term in the preamble to this Agreement.
"Incremental Extensions of Credit" shall have the meaning assigned
to such term in Section 2.23.
"Incremental Facility Amendment" shall have the meaning assigned to
such term in Section 2.23.
"Incremental Facility Closing Date" shall have the meaning assigned
to such term in Section 2.23.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid, (d)
all obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (other than current trade liabilities and current
intercompany liabilities (but not any refinancings, extensions,
46
renewals or replacements thereof) incurred in the ordinary course of business
and maturing within 365 days after the incurrence thereof), (f) all Guarantees
by such person of Indebtedness of others, (g) all Capital Lease Obligations of
such person, (h) all payments that such person would have to make in the event
of an early termination, on the date Indebtedness of such person is being
determined, in respect of outstanding Swap Agreements, (i) all obligations,
contingent or otherwise, of such person as an account party in respect of
letters of credit and (j) all obligations of such person in respect of bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner, other than to the
extent that the instrument or agreement evidencing such Indebtedness expressly
limits the liability of such person in respect thereof.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Installment Date" shall mean a Tranche A Installment Date, a
Tranche A-1 Installment Date, a Tranche B Installment Date, a Tranche D
Installment Date or a Tranche E Installment Date, as applicable.
"Intercreditor Agreement" shall mean the Intercreditor Agreement
dated as of February 28, 2003, among JPMorgan Chase Bank, as Administrative
Agent, the Receivables Subsidiary, the U.S. Borrower and the Collateral Agent.
"Interest Coverage Ratio" shall have the meaning given such term in
Section 6.11.
"Interest Election Request" shall mean a request by a Borrower to
convert or continue a Term Borrowing or Revolving Borrowing in accordance with
Section 2.07.
"Interest Expense" shall mean, with respect to any person for any
period, the sum of (a) gross interest expense of such person for such period on
a consolidated basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to Swap Agreements)
payable in connection with the incurrence of Indebtedness to the extent included
in interest expense, (iii) the portion of any payments or accruals with respect
to Capital Lease Obligations allocable to interest expense and (iv) commissions,
discounts, yield and other fees and charges incurred in connection with the
Permitted Receivables Financing which are payable to any person other than
47
the U.S. Borrower or a Subsidiary Loan Party and (b) capitalized interest of
such person. For purposes of the foregoing, gross interest expense shall be
determined after giving effect to any net payments made or received by the U.S.
Borrower and the Subsidiaries with respect to Swap Agreements.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing and, in addition, the
date of any refinancing or conversion of such Borrowing with or to a Borrowing
of a different Type, (b) with respect to any ABR Loan, the last day of each
calendar quarter, (c) with respect to any Swingline Dollar Loan, the day that
such Swingline Dollar Loan is required to be repaid pursuant to Section 2.09(a)
and (d) with respect to any Swingline Foreign Currency Loan, the last day of the
Interest Period applicable to such Swingline Foreign Currency Loan or any day
otherwise agreed to by the Swingline Foreign Currency Lenders.
"Interest Period" shall mean, (a) as to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as
applicable, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of the relevant
Borrowing, all Lenders make interest periods of such length available), as the
applicable Borrower may elect, or the date any Eurocurrency Borrowing is
converted to an ABR Borrowing in accordance with Section 2.07 or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11 and (b) as to any
Swingline Foreign Currency Borrowing, the period commencing on the date of such
Borrowing and ending on the day that is designated in the notice delivered
pursuant to Section 2.04 with respect to such Swingline Foreign Currency
Borrowing, which shall not be later than the seventh day thereafter; provided,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
48
"Intermediate Holdings" shall have the meaning assigned to such term
in the introductory paragraph of this Agreement.
"Intermediate Holdings Equity Contribution" shall have the meaning
assigned to such term in the preamble to this Agreement.
"Investment Grade Ratings" shall mean a rating of both (a) BBB- or
better from S&P and (b) Baa3 or better from Xxxxx'x.
"IPO" shall have the meaning assigned to such term in the preamble
to this Agreement.
"IPO Repurchase Transaction" shall have the meaning assigned to such
term in the preamble to this Agreement.
"Intermediate Holdings Loan" shall mean the loan from the U.S.
Borrower to Intermediate Holdings in an aggregate principal amount of
$499,000,000 made with the proceeds of the Tranche E Term Loans and
approximately $200,000,000 of cash of the U.S. Borrower, which loan has been
evidenced by a note and pledged pursuant to the Collateral and Guarantee
Requirement.
"Issuing Bank" shall mean JPMorgan Chase Bank, N.A., each other
Issuing Bank designated pursuant to Section 2.05(l), in each case in its
capacity as an issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i). An Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.12(b).
"Judgment Currency" shall have the meaning assigned to such term in
Section 9.17(b).
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit.
"L/C Participation Fee" shall have the meaning assigned such term in
Section 2.12(b).
"Lender" shall mean each financial institution listed on Schedule
2.01, as well as any person that becomes a "Lender" hereunder pursuant to
Section 9.04 or pursuant to an Incremental Facility Amendment.
49
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing, to
acquire participations in a Swingline Loan pursuant to Section 2.04 or to fund
its portion of any unreimbursed payment under Section 2.05(e), (ii) a Lender
having notified in writing the applicable Borrower and/or the Applicable Agent
that it does not intend to comply with its obligations under Section 2.04, 2.05
or 2.06 or (iii) the refusal of an Ancillary Lender to extend credit under an
Ancillary Facility other than a refusal in accordance with the terms of the
applicable Ancillary Facility Document and the terms hereof.
"Lenders' Presentation" shall mean the Lenders' Presentation dated
November 17, 2004, as modified or supplemented prior to the Restatement
Effective Date.
"Letter of Credit" shall mean any letter of credit issued pursuant
to Section 2.05 (including each letter of credit issued under the Existing
Credit Agreement and outstanding at the Effective Funding Time).
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Consolidated Total Debt as of such date to (b) EBITDA for the period of four
consecutive fiscal quarters of the U.S. Borrower most recently ended as of such
date, all determined on a consolidated basis in accordance with GAAP; provided
that to the extent any Asset Disposition or any Permitted Business Acquisition
(or any similar transaction or transactions that require a waiver or a consent
of the Required Lenders pursuant to Section 6.04 or Section 6.05) has occurred
during the relevant Test Period, EBITDA shall be determined for the respective
Test Period on a Pro Forma Basis for such occurrences.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by the Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen page), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London
interbank market by JPMorgan Chase Bank, N.A., at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period.
50
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, hypothecation, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the Security Documents, the Ancillary Facility Documents, the Intercreditor
Agreement, any promissory note issued under Section 2.09(e) and any Incremental
Facility Amendment.
"Loan Parties" shall mean Holdings, Intermediate Holdings, the
Borrowers and the Subsidiary Loan Parties.
"Loans" shall mean the Term Loans, the Revolving Loans, the
Swingline Loans and any loans made in respect of any Incremental Extension of
Credit.
"Local Time" shall mean (a) with respect to a Loan or Borrowing
denominated in Dollars, New York City time and (b) with respect to a Loan or
Borrowing denominated in any Foreign Currency, London time.
"London Administrative Office" shall mean the office of the
Administrative Agent at 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention of
Loans Agency Division, Xxxxxxx Xxxx (Telecopy No. 011-44-207-777-2360).
"Xxxxx" shall mean Xxxxx Industries Limited, a company organized
under the Laws of England and Wales.
"Xxxxx Notes" shall mean the 10-7/8% Bonds due 2020 of Xxxxx issued
under the Trust Deed between Xxxxx and The Law Debenture Trust Corporation
p.l.c. dated January 10, 1989.
"LucasVarity" shall mean Xxxxx-Varity Unlimited, a company organized
under the laws of England and Wales.
"LucasVarity Holdings" shall mean LucasVarity Automotive Holding
Co., a Delaware corporation.
"Majority Lenders" of any Facility shall mean, at any time, Lenders
under such Facility having Loans, Ancillary Commitments and unused Commitments
representing more than 50% of the sum of all Loans outstanding under such
Facility, Ancillary
51
Commitments and unused Commitments under such Facility at such time.
"Management Equity Loan" shall mean (a) the loan on the Closing Date
by the U.S. Borrower or Holdings to the Management Equity Vehicle in an
aggregate principal amount not in excess of $12,000,000 and (b) if applicable,
the loan on the Closing Date by the U.S. Borrower to Holdings in an aggregate
principal amount equal to the loan, if any, by Holdings to the Management Equity
Vehicle on the Closing Date.
"Management Equity Vehicle" shall mean trust accounts pursuant to
escrow agreements dated as of February 21, 2003, and as of the Closing Date.
"Management Group" shall mean the group consisting of the directors,
executive officers and other management personnel of the U.S. Borrower, Holdings
and Intermediate Holdings on the Closing Date together with (1) any new
directors whose election by such boards of directors or whose nomination for
election by the stockholders of the U.S. Borrower, Holdings, or Intermediate
Holdings, as applicable, was approved by a vote of a majority of the directors
of the U.S. Borrower, Holdings or Intermediate Holdings, as applicable, then
still in office who were either directors on the Closing Date or whose election
or nomination was previously so approved and (2) executive officers and other
management personnel of the U.S. Borrower, Holdings or Intermediate Holdings, as
applicable, hired at a time when the directors on the Closing Date together with
the directors so approved constituted a majority of the directors of the U.S.
Borrower, Holdings or Intermediate Holdings, as applicable.
"Margin Stock" shall have the meaning given such term in Regulation
U.
"Material Adverse Effect" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably likely to have
(a) a materially adverse effect on the business, operations, properties, assets
or financial condition of the U.S. Borrower and the Subsidiaries, taken as a
whole, (b) a material impairment of the ability of Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries to perform any of its
material obligations under any Loan Document to which it is or will be a party
or to consummate the Restatement Transactions or (c) an impairment of the
validity or enforceability of, or a material impairment of the material rights,
remedies or benefits available to the Lenders, any Issuing Bank, the
Administrative Agent or the Collateral Agent under, any Loan Document.
52
"Material Indebtedness" shall mean Indebtedness (other than Loans,
Ancillary Credit Extensions and Letters of Credit) of any one or more of the
Loan Parties in an aggregate principal amount exceeding $50,000,000.
"Maximum Rate" shall have the meaning provided in Section 9.09.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgaged Properties" shall mean the owned real properties of the
Loan Parties set forth on Schedule 3.18.
"Mortgages" shall mean the U.S. Mortgages and the Foreign Mortgages.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which a Borrower, Holdings, Intermediate Holdings
or any ERISA Affiliate (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Net Income" means, with respect to any person, the net income
(loss) of such person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean (a) 100% of the cash proceeds actually
received by Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise and including casualty insurance settlements
and condemnation awards, but only as and when received) from any loss, damage,
destruction or condemnation of, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease of real
property) to any person of any asset or assets of the U.S. Borrower or any of
the Subsidiaries (other than those pursuant to Section 6.05(a), (b), (c), (e),
(f), (g), (i) or (j)), net of (i) attorneys' fees, accountants' fees, investment
banking fees, survey costs, title insurance premiums, and related search and
recording charges, transfer Taxes, deed or mortgage recording Taxes, required
debt payments and required payments of other obligations relating to the
applicable asset (other than pursuant hereto or pursuant to the Senior Notes or
Senior Subordinated Notes), other customary expenses and brokerage, consultant
and
53
other customary fees actually incurred in connection therewith and (ii) Taxes
paid or payable as a result thereof, provided that, if no Event of Default
exists and the U.S. Borrower shall deliver a certificate of a Responsible
Officer of the U.S. Borrower to the Administrative Agent promptly following
receipt of any such proceeds setting forth the U.S. Borrower's intention to use
any portion of such proceeds, to acquire, maintain, develop, construct, improve,
upgrade or repair assets (including inventory) useful in the business of the
U.S. Borrower and the Subsidiaries, or make investments pursuant to Section
6.04(j), in each case within 12 months of such receipt, such portion of such
proceeds shall not constitute Net Proceeds except to the extent not so used
within such 12-month period, and provided, further, that (x) no proceeds
realized in a single transaction or series of related transactions shall
constitute Net Proceeds unless such proceeds shall exceed $10,000,000 and (y) no
proceeds shall constitute Net Proceeds in any fiscal year until the aggregate
amount of all such proceeds in such fiscal year (excluding any proceeds that do
not constitute Net Proceeds during such fiscal year pursuant to clause (x) of
this proviso) shall exceed $50,000,000, and (b) 100% of the cash proceeds from
the incurrence, issuance or sale by the U.S. Borrower or any of the Subsidiaries
of any Indebtedness (other than Indebtedness permitted pursuant to Section 6.01
(other than 6.01(m)), net of all Taxes and fees (including investment banking
fees), commissions, costs and other expenses, in each case incurred in
connection with such issuance or sale. For purposes of calculating the amount of
Net Proceeds, fees, commissions and other costs and expenses payable to
Holdings, Intermediate Holdings or the U.S. Borrower or any Affiliate of either
of them shall be disregarded, except for financial advisory fees customary in
type and amount paid to Affiliates of the Fund.
"New Available Unused Commitment" shall mean, with respect to any
Global Revolving Facility Lender at any time, an amount equal to the amount by
which (a) the New Global Revolving Facility Commitment of such Global Revolving
Facility Lender at such time exceeds (b) the sum of (x) the New Global Revolving
Facility Credit Exposure of such Global Revolving Facility Lender at such time
and (y) the Ancillary Commitment (if any) of such Global Revolving Facility
Lender at such time. For purposes of calculating any Global Revolving Facility
Lender's New Available Unused Commitment in connection with an Ancillary
Replacement Borrowing, the amount of the Ancillary Commitment of such New Global
Revolving Facility Lender shall be reduced by the amount of the Ancillary
Commitment being terminated.
"New Global Revolving Facility" shall mean the New Global Revolving
Facility Commitments and the extensions of credit made thereunder by the Global
Revolving Facility Lenders.
54
"New Global Revolving Facility Commitment" shall mean, with respect
to each Global Revolving Facility Lender, the commitment of such Global
Revolving Facility Lender to make New Global Revolving Facility Loans at or
after the Effective Funding Time pursuant to Section 2.01, expressed as an
amount representing the maximum aggregate permitted amount of such Lender's New
Global Revolving Facility Credit Exposure hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender under
Section 9.04. The amount of each Global Revolving Facility Lender's New Global
Revolving Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Global Revolving Facility
Lender shall have assumed its New Global Revolving Facility Commitment, as
applicable. The aggregate amount of the New Global Revolving Facility
Commitments on the date hereof is $500,000,000.
"New Global Revolving Facility Credit Exposure" shall mean, at any
time at and after the Effective Funding Time, the sum of (a) the aggregate
principal amount of the New Global Revolving Facility Loans denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the aggregate
principal amount of the New Global Revolving Facility Loans denominated in a
Foreign Currency outstanding at such time and (c) the Swingline Foreign Currency
Exposure at such time. The New Global Revolving Facility Credit Exposure of any
Global Revolving Facility Lender at any time at and after the Effective Funding
Time shall be the sum of (a) the aggregate principal amount of such Global
Revolving Facility Lender's New Global Revolving Facility Loans denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the aggregate
principal amount of such Global Revolving Facility Lender's New Global Revolving
Facility Loans denominated in a Foreign Currency outstanding at such time and
(c) such Global Revolving Facility Lender's ratable share (based on New
Available Unused Commitments) of the Swingline Foreign Currency Exposure at such
time.
"New Global Revolving Facility Lender" shall mean a Lender with a
New Global Revolving Facility Commitment or with outstanding New Global
Revolving Facility Loans.
"New Global Revolving Facility Loan" shall mean a Loan made by a
Global Revolving Facility Lender in respect of a New Global Revolving Facility
Commitment pursuant to Section 2.01. Each New Global Revolving Facility Loan
denominated in Dollars shall be a Eurocurrency Loan or an ABR Loan, and each New
Global Revolving Facility Loan denominated in a Foreign Currency shall be a
Eurocurrency Loan.
55
"New Revolving Facility Lenders" shall mean the New Global Revolving
Facility Lenders and the New U.S. Revolving Facility Lenders.
"New Revolving Borrowing" shall mean a Borrowing of New Revolving
Loans.
"New Revolving Loans" shall mean the New Global Revolving Facility
Loans and the New U.S. Revolving Facility Loans.
"New U.S. Revolving Facility" shall mean the New U.S. Revolving
Facility Commitments and the extensions of credit made hereunder by the New U.S.
Revolving Facility Lenders.
"New U.S. Revolving Facility Commitment" shall mean, with respect to
each U.S. Revolving Facility Lender, the commitment of such U.S. Revolving
Facility Lender to make New U.S. Revolving Facility Loans at or after the
Effective Funding Time pursuant to Section 2.01, expressed as an amount
representing the maximum aggregate permitted amount of such Lender's New U.S.
Revolving Facility Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The amount of each U.S. Revolving Facility Lender's New U.S.
Revolving Facility Commitment on the date hereof is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such U.S. Revolving
Facility Lender shall have assumed its New U.S. Revolving Facility Commitment,
as applicable. The aggregate amount of the New U.S. Revolving Facility
Commitments on the date hereof is $400,000,000.
"New U.S. Revolving Facility Credit Exposure" shall mean, at any
time at and after the Effective Funding Time, the sum of (a) the aggregate
principal amount of the New U.S. Revolving Facility Loans outstanding at such
time, (b) the Swingline Dollar Exposure at such time and (c) the Revolving L/C
Exposure at such time. The New U.S. Revolving Facility Credit Exposure of any
Lender at any time at and after the Effective Funding Time shall be such
Lender's New U.S. Revolving Facility Percentage of the New U.S. Revolving
Facility Credit Exposure at such time.
"New U.S. Revolving Facility Lender" shall mean a Lender with a New
U.S. Revolving Facility Commitment or with outstanding New U.S. Revolving
Facility Loans.
"New U.S. Revolving Facility Loan" shall mean a Loan made by a U.S.
Revolving Facility Lender in respect of a New U.S.
56
Revolving Facility Commitment pursuant to Section 2.01. Each New U.S. Revolving
Facility Loan shall be a Eurocurrency Loan or an ABR Loan.
"New U.S. Revolving Facility Percentage" shall mean, with respect to
any U.S. Revolving Facility Lender, the percentage of the total New U.S.
Revolving Facility Commitments represented by such Lender's New U.S. Revolving
Facility Commitment. If the New U.S. Revolving Facility Commitments have
terminated or expired, the New U.S. Revolving Facility Percentages shall be
determined based upon the New U.S. Revolving Facility Commitments most recently
in effect, giving effect to any assignments pursuant to Section 9.04.
"Newco UK" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Newco UK Equity Contribution" shall have the meaning assigned to
such term in the preamble to this Agreement.
"Newco UK Loan" shall mean the loan from the U.S. Borrower to Newco
UK on the Closing Date in an aggregate principal amount equal to $725,740,000
out of the proceeds of Loans made to the U.S. Borrower on the Closing Date,
which loan is evidenced by a note and pledged pursuant to a Foreign Pledge
Agreement.
"Northrop Space and Mission" shall mean Northrop Grumman Space &
Mission Systems Corp., an Ohio corporation.
"Notice of Termination" shall have the meaning assigned to such term
in Section 2.22(e)(ii).
"Obligations" shall mean the "Obligations", as such term is defined
in the U.S. Collateral Agreement, and the "Foreign Obligations", as such term is
defined in the Foreign Guarantee.
"Original Credit Agreement" shall mean the Credit Agreement dated as
of February 27, 2003 among Holdings, Intermediate Holdings, the U.S. Borrower,
the Foreign Subsidiary Borrowers party thereto, the lenders party thereto from
time to time and JPMorgan Chase Bank, as administrative agent, Credit Suisse
First Boston, acting through its Cayman Islands Branch, Xxxxxx Commercial Paper
Inc., and Deutsche Bank Securities Inc., each as co-syndication agent, and Bank
of America, N.A., as documentation agent.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property
57
taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, the
Loan Documents.
"Participant" shall have the meaning assigned to such term in
Section 9.04(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Perfection Certificates" shall mean the U.S. Perfection Certificate
and the Foreign Perfection Certificates.
"Permitted Business Acquisition" shall mean any acquisition of all
or substantially all the assets of, or all the Equity Interests (other than
directors' qualifying shares) in, a person or division or line of business of a
person (or any subsequent investment made in a person, division or line of
business previously acquired in a Permitted Business Acquisition) if (a) such
person or division is engaged in the same or a similar line of business as the
U.S. Borrower and the Subsidiaries or a reasonable extension, development or
expansion of such line of business or a business ancillary to such line of
business, (b) such acquisition was not preceded by, or effected pursuant to, an
unsolicited or hostile offer and (c) immediately after giving effect thereto:
(i) no Default or Event of Default shall have occurred and be continuing or
would result therefrom; (ii) all transactions related thereto shall be
consummated in accordance with applicable laws; (iii) the Equity Interests of
any acquired or newly formed corporation, partnership, association or other
business entity are held directly by (A) the U.S. Borrower, (B) a Wholly Owned
Subsidiary that is a Domestic Subsidiary Loan Party or (C) if such corporation,
partnership, association or other business entity is incorporated or organized
under the laws of any jurisdiction other than the United States of America, any
State thereof or the District of Columbia, a Foreign Subsidiary Loan Party and,
in each case, such acquired or newly formed Subsidiary shall become a Subsidiary
Loan Party and all actions required to be taken with respect to such acquired or
newly formed Subsidiary Loan Party under Section 5.10 shall have been taken and
(iv)(A) the U.S. Borrower and the Subsidiaries shall be in compliance, on a Pro
Forma Basis after giving effect to such acquisition or formation, with the
covenants contained in Sections 6.11 and 6.12 recomputed as at the last day of
the most recently ended fiscal quarter of the U.S. Borrower and the
Subsidiaries, and the U.S. Borrower shall have delivered to the Administrative
Agent a certificate of a Responsible Officer of the U.S. Borrower to such
effect, together with all relevant financial information for such Subsidiary or
assets, and (B) any
58
acquired or newly formed Subsidiary shall not be liable for any Indebtedness
(except for Indebtedness permitted by Section 6.01).
"Permitted Cure Security" means an equity security of Holdings (or
the surviving entity in any merger of Holdings permitted under Section 6.05(b))
having no mandatory redemption, repurchase or similar requirements prior to
December 31, 2012, and upon which all dividends or distributions (if any) shall
be payable solely in additional shares of such equity security.
"Permitted Holder" shall mean the Fund, the Fund Affiliates and the
Management Group.
"Permitted Investments" shall mean: (a) direct obligations of the
United States of America or any agency thereof or obligations guaranteed by the
United States of America or any agency thereof; (b) time deposit accounts,
certificates of deposit and money market deposits maturing within 365 days of
the date of acquisition thereof issued by a bank or trust company that is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits having a Dollar Equivalent that is in excess of
$500,000,000 and whose long-term debt, or whose parent holding company's
long-term debt, is rated A (or such similar equivalent rating or higher by at
least one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act); (c) repurchase obligations with a term of
not more than 365 days for underlying securities of the types described in
clause (a) above entered into with a bank meeting the qualifications described
in clause (b) above; (d) commercial paper, maturing not more than 365 days after
the date of acquisition, issued by a corporation (other than an Affiliate of any
Borrower) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with a
rating at the time as of which any investment therein is made of P-1 (or higher)
according to Xxxxx'x, or A-1 (or higher) according to S&P; (e) securities with
maturities of twelve months or less from the date of acquisition issued or fully
guaranteed by any State, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Xxxxx'x; (f) in the case of any Foreign Subsidiary:
(i) direct obligations of the sovereign nation (or any agency thereof) in which
such Foreign Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency thereof), (ii) investments of the type and maturity described in
clauses (a) through (e) above of foreign obligors, which investments or obligors
(or the parents of such obligors) have ratings described in such clauses or
59
equivalent ratings from comparable foreign rating agencies or (iii) investments
of the type and maturity described in clauses (a) through (e) above of foreign
obligors (or the parents of such obligors), which investments or obligors (or
the parents of such obligors) are not rated as provided in such clauses or in
clause (ii) above but which are, in the reasonable judgment of the U.S.
Borrower, comparable in investment quality to such investments and obligors (or
the parents of such obligors); (g) shares of mutual funds whose investment
guidelines restrict 95% of such funds' investments to those satisfying the
provisions of clauses (a) through (e) above; (h) money market funds that (i)
comply with the criteria set forth in Rule 2a-7 under the Investment Company Act
of 1940, (ii) are rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio
assets of at least $5,000,000,000; and (i) time deposit accounts, certificates
of deposit and money market deposits in an aggregate face amount not in excess
of 5% of the total assets of the U.S. Borrower and the Subsidiaries, on a
consolidated basis, as of the end of the U.S. Borrower's most recently completed
fiscal year.
"Permitted Xxxxx Refinancing Indebtedness" shall mean any
Indebtedness of (a) the U.S. Borrower, Xxxxx or any Subsidiary issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund (collectively, to "Refinance") the Xxxxx Notes (it
being understood that the assumption by any Subsidiary of the obligations in
respect of the Xxxxx Notes shall constitute such a Refinancing) or (b) Xxxxx
issued to Northrop Space and Mission upon the drawing of an Acceptable Letter of
Credit pursuant to the Letter Agreement dated as of February 5, 2003, between
Northrop Grumman Corporation and BCP Acquisition Company LLC; provided that the
proceeds of such Acceptable Letter of Credit are applied to repay the Xxxxx
Notes or are held in an escrow account reasonably satisfactory to the
Administrative Agent until such proceeds are so applied; provided, further,
that, in either case, (v) the principal amount of such Permitted Xxxxx
Refinancing Indebtedness does not exceed the principal amount of Xxxxx Notes
being Refinanced (plus unpaid accrued interest and premium thereon), unless such
excess could be incurred under any provision of Section 6.01 (other than clause
(a) thereof), (w) the stated maturity of such Permitted Xxxxx Refinancing
Indebtedness is no earlier than 180 days after the Tranche B Maturity Date or
the maturity date for any outstanding Incremental Extension of Credit, (x) such
Permitted Xxxxx Refinancing Indebtedness does not require any scheduled
amortization, principal or sinking fund payments earlier than 180 days after the
Tranche B Maturity Date or the maturity date for any outstanding Incremental
Extension of Credit, (y) such Permitted Xxxxx Refinancing Indebtedness is not
secured by any
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collateral and (z) all other terms (excluding interest rates and redemption
premiums) of such Permitted Xxxxx Refinancing Indebtedness are not less
favorable to the Lenders in any material respect than those contained in the
Senior Notes (or, if such Permitted Xxxxx Refinancing Indebtedness is
subordinated to the Obligations, the Senior Subordinated Notes); provided that
(i) in the event of any Refinancing resulting from the assumption of the Xxxxx
Notes by a Subsidiary, such Permitted Xxxxx Refinancing Indebtedness may have
the same terms as the Xxxxx Notes and (ii) such Permitted Xxxxx Refinancing
Indebtedness may be guaranteed by the U.S. Borrower and the Subsidiaries.
"Permitted Notes Refinancing Indebtedness" means any Indebtedness of
the U.S. Borrower issued to Refinance all or any portion of the Senior Notes or
Senior Subordinated Notes (or previous refinancings thereof constituting
Permitted Notes Refinancing Indebtedness); provided that (a) the principal
amount of such Permitted Notes Refinancing Indebtedness does not exceed the
principal amount of the Senior Notes or Senior Subordinated Notes being
Refinanced (plus unpaid accrued interest and premium thereon), (b) the stated
maturity of such Permitted Notes Refinancing Indebtedness is no earlier than 180
days after the Tranche B Maturity Date or the maturity date for any outstanding
Incremental Extension of Credit, (c) such Permitted Notes Refinancing
Indebtedness does not require any scheduled amortization, principal or sinking
fund payments earlier than 180 days after the Tranche B Maturity Date or the
maturity date for any outstanding Incremental Extension of Credit, (d) with
respect to any Refinancing of Senior Subordinated Notes, such Permitted Notes
Refinancing Indebtedness is subordinated in right of payment to the Obligations
on terms no less favorable to the Lenders than those contained in the Senior
Subordinated Notes Documents, (e) such Permitted Notes Refinancing Indebtedness
does not have different obligors or guarantors than those with respect to the
Senior Notes or Senior Subordinated Notes, (f) such Permitted Notes Refinancing
Indebtedness is not secured by any collateral and (g) all other terms (excluding
interest rates and redemption premiums) of such Permitted Refinancing
Indebtedness are not less favorable to the Lenders in any material respect than
those contained in the Senior Notes or Senior Subordinated Notes, as applicable.
"Permitted Receivables Documents" means the U.S. Receivables
Purchase Agreement, the Receivables Transfer Agreement and the Receivables Loan
Agreement and all other documents and agreements relating to the Permitted
Receivables Financing.
"Permitted Receivables Financing" shall mean (a)(i) the sale by the
U.S. Borrower and certain Subsidiaries of
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accounts receivable to the Transferor pursuant to the U.S. Receivables Purchase
Agreement and (ii) the sale of such accounts receivable by the Transferor to the
Receivables Subsidiary pursuant to the Receivables Transfer Agreement, (b) the
loans made by the lenders under the Receivables Loan Agreement to the
Receivables Subsidiary to finance the purchase of such accounts receivables and
loans or (c) any sale or financing by a Foreign Subsidiary of its accounts
receivable (including any bills of exchange) or by the U.S. Borrower or any
Subsidiary of accounts receivable (including any bills of exchange) owing by an
obligor domiciled outside the United States, provided that (A) any such sale or
financing shall provide for recourse to such Foreign Subsidiary or the U.S.
Borrower (as applicable) only to the extent customary for similar sales or
financings in the jurisdiction relevant to such sale or financing and (B) the
sum of, without duplication, (x) the aggregate principal amounts financed
pursuant to clauses (a) and (b) of this definition, (y) the aggregate principal
amounts financed pursuant to clause (c) of this definition and (z) the aggregate
Net Investment in accounts receivable pursuant to clause (c) shall not exceed
$600,000,000 at any time. For the purpose of this definition, "Net Investment"
means the cash purchase price paid by the buyer in connection with its purchase
of accounts receivable (including any bills of exchange) less the amount of
collections received in respect of such accounts receivable and paid to such
buyer, excluding any amounts applied to purchase fees or discount or in the
nature of interest, in each case as determined in good faith and in a consistent
and commercially reasonable manner by the U.S. Borrower.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, individual or family trusts, or any agency or political subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code and in respect of which Holdings, Intermediate Holdings, the
U.S. Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledged Collateral" shall have the meaning assigned to such term in
the U.S. Collateral Agreement or a Foreign Pledge Agreement, as applicable.
"primary obligor" shall have the meaning given such term in the
definition of the term Guarantee.
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"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective.
"Pro Forma Basis" shall mean, as to any person, for any events as
described in clauses (i) and (ii) below that occur subsequent to the
commencement of a period for which the financial effect of such events is being
calculated, and giving effect to the events for which such calculation is being
made, such calculation as will give pro forma effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period
last ended on or before the occurrence of such event (the "Reference Period"):
(i) in making any determination of EBITDA, pro forma effect shall be
given to any Asset Disposition and to any Permitted Business Acquisition
(or any similar transaction or transactions that require a waiver or
consent of the Required Lenders pursuant to Section 6.04 or 6.05), in each
case that occurred during the Reference Period (or, in the case of
determinations made pursuant to the definition of the term "Permitted
Business Acquisition" and Section 2.23, occurring during the Reference
Period or thereafter and through and including the date upon which the
respective Permitted Business Acquisition is consummated or the date of
the applicable Incremental Extension of Credit as the case may be); and
(ii) in making any determination on a Pro Forma Basis, (x) all
Indebtedness (including Indebtedness incurred or assumed and for which the
financial effect is being calculated, whether incurred under this
Agreement or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes and amounts outstanding
under any Permitted Receivables Financing, in each case not to finance any
acquisition) incurred or permanently repaid during the Reference Period
(or, in the case of determinations made pursuant to the definition of the
term "Permitted Business Acquisition" and Section 2.23 occurring during
the Reference Period or thereafter and through and including the date upon
which the respective Permitted Business Acquisition is consummated or the
date of the applicable Incremental Extension of Credit, as the case may
be) shall be deemed to have been incurred or repaid at the beginning of
such period and (y) Interest Expense of such person attributable to
interest on any Indebtedness, for which pro forma effect is being given as
provided in preceding clause (x), bearing
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floating interest rates shall be computed on a pro forma basis as if the
rates that would have been in effect during the period for which pro forma
effect is being given had been actually in effect during such periods.
Pro forma calculations made pursuant to the definition of "Pro Forma Basis"
shall be determined in good faith by a Responsible Officer of the U.S. Borrower
and, for any fiscal period ending on or prior to the first anniversary of a
Permitted Business Acquisition or Asset Disposition (or any similar transaction
or transactions that require a waiver or consent of the Required Lenders
pursuant to Section 6.04 or 6.05), may include adjustments to reflect operating
expense reductions reasonably expected to result from such Permitted Business
Acquisition, Asset Disposition or other similar transaction, less the amount of
costs reasonably expected to be incurred by the U.S. Borrower and the
Subsidiaries to achieve such cost savings, to the extent that the U.S. Borrower
delivers to the Administrative Agent (i) a certificate of a Financial Officer of
the U.S. Borrower setting forth such operating expense reductions and the costs
to achieve such reductions and (ii) information and calculations supporting in
reasonable detail such estimated operating expense reductions and the costs to
achieve such reductions.
"Projections" shall mean the projections of the U.S. Borrower and
the Subsidiaries included in the Lenders' Presentation and any other projections
and any forward-looking statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the Administrative Agent
by or on behalf of Holdings, Intermediate Holdings, the U.S. Borrower or a
Subsidiary prior to the Restatement Effective Date in connection with the
Restatement Transactions.
"Public Offering" shall mean any public sale of common stock of
Holdings, other than public offerings with respect to the common stock of
Holdings registered on Form S-8 under the Securities Act (or any successor form
thereto).
"Public Offering Net Proceeds" shall mean the cash proceeds from any
Public Offering, net of all fees (including investment banking fees), discounts,
commissions, costs and other expenses, in each case incurred in connection with
such Public Offering. In connection with the calculation of the Public Offering
Net Proceeds with respect to any Public Offering, all fees, discounts,
commissions, costs and expenses shall be allocated among the shares sold in such
Public Offering on a pro rata basis.
"Purchase Agreement" shall mean the Master Purchase Agreement
between BCP Acquisition Company L.L.C. and Northrop
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Grumman Corporation dated as of November 18, 2002, as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
requirements thereof and of this Agreement.
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing or Swingline Foreign Currency Borrowing and any Interest Period, the
day on which it is market practice in the relevant interbank market for prime
banks to give quotations for deposits in the currency of such Borrowing for
delivery on the first day of such Interest Period. If such quotations would
normally be given by prime banks on more than one day, the Quotation Day will be
the last of such days.
"Reaffirmation Agreement" shall mean the Reaffirmation Agreement,
attached hereto as Exhibit P, among Holdings, Intermediate Holdings, the U.S.
Borrower and the other Reaffirming Parties (as defined therein), as amended,
supplemented or otherwise modified from time to time.
"Receivables Loan Agreement" shall mean the Receivables Loan
Agreement dated as of February 28, 2003, by and among the Receivables
Subsidiary, the conduit lenders and committed lenders from time to time party
thereto, JPMorgan Chase Bank, Credit Suisse First Boston, Xxxxxx Commercial
Paper Inc. and Deutsche Bank A.G., New York Branch, as funding agents, and
JPMorgan Chase Bank, as administrative agent, as it may be amended, supplemented
or otherwise modified to the extent permitted by Section 6.09 and (b) any
agreement replacing the Receivables Loan Agreement, provided that such replacing
agreement contains terms that are substantially similar to such Receivables Loan
Agreement and that are otherwise no more adverse in any material respect to the
Lenders than the applicable terms of such Receivables Loan Agreement.
"Receivables Subsidiary" shall mean TRW Auto Global Receivables,
LLC, a Delaware limited liability company.
"Receivables Transfer Agreement" shall mean (a) the Transfer
Agreement dated as of February 28, 2003, between the Transferor and the
Receivables Subsidiary, relating to the Permitted Receivables Financing, as it
may be amended, supplemented or otherwise modified to the extent permitted by
Section 6.09 and (b) any agreement replacing such Receivables Transfer
Agreement, provided that such replacing agreement contains terms that are
substantially similar to such Receivables Transfer Agreement and that are
otherwise no more adverse in any material respect to the Lenders than the
applicable terms of such Receivables Transfer Agreement.
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"Reference Period" shall have the meaning assigned to such term in
the definition of the term "Pro Forma Basis".
"Refinance" shall have the meaning assigned to such term in the
definition of "Permitted Xxxxx Refinancing Indebtedness", and "Refinanced" and
"Refinancing" shall have the meanings correlative thereto.
"Register" shall have the meaning assigned to such term in Section
9.04(b).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Remaining Present Value" shall mean, as of any date with respect to
any lease, the present value as of such date of the scheduled future lease
payments with respect to such lease, determined with a discount rate equal to a
market rate of interest for such lease reasonably determined at the time such
lease was entered into.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, other than those
events as to which the 30-day notice period referred to in Section 4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan maintained by
an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Section 414 of the Code).
"Required Issuance Date" shall mean, with respect to any claimed
breach of the terms of, or default under, the Xxxxx Notes, (a) the date that is
no later than the second Business Day prior to the expiration of any grace
period applicable to such claimed breach or default (unless the trustee under
the Xxxxx Notes has theretofore been enjoined from declaring the Xxxxx Notes to
be immediately due and payable, in which event such date shall be deferred until
the earliest of (i) the 90th day after the date of issuance of such injunction,
(ii) the second Business Day prior to the date on which Xxxxx reasonably
determines that such injunction is likely to be lifted or to expire and (iii)
two
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Business Days after such injunction is lifted or expires) or (b) the date that
is no later than the second Business Day after the date on which the trustee
with respect to the Xxxxx Notes delivers written notice declaring the Xxxxx
Xxxxx to be immediately due and payable without having provided Xxxxx an
opportunity to remedy such claimed breach or default.
"Required Lenders" shall mean, at any time, Lenders having (a) Loans
(other than Swingline Loans) outstanding, (b) Revolving L/C Exposures, (c)
Swingline Exposures, (d) unused U.S. Revolving Facility Commitments (excluding
Commitments to make Swingline Loans), (e) Available Unused Commitments, (f)
Ancillary Commitments, (g) unfunded Tranche A Term Loan Commitments and (h)
unfunded Tranche B Term Loan Commitments, that taken together, represent more
than 50% of the sum of (i) all Loans (other than Swingline Loans) outstanding,
(ii) Revolving L/C Exposures, (iii) Swingline Exposures, (iv) unused U.S.
Revolving Facility Commitments (excluding commitments to make Swingline Loans),
(v) the total Available Unused Commitments, (vi) Ancillary Commitments, (vii)
all unfunded Tranche A Term Loan Commitments and (viii) all unfunded Tranche B
Term Loan Commitments at such time. For purposes of the foregoing, the (i)
Loans, Revolving L/C Exposures, Swingline Exposures, unused U.S. Revolving
Facility Commitment, Available Unused Commitment, Ancillary Commitment, unfunded
Tranche A Term Loan Commitment and unfunded Tranche B Term Loan Commitment of
any Defaulting Lender shall be disregarded in determining the Required Lenders
at any time and (ii) in determining the Required Lenders at any time prior to
the Effective Funding Time, the Available Unused Commitments shall include both
the Existing Available Unused Commitments and the New Available Unused
Commitments.
"Required Percentage" shall mean, with respect to an Excess Cash
Flow Period, (i) 50%, if the Leverage Ratio at the end of such Excess Cash Flow
Period is greater than or equal to 3.25 to 1.00, (ii) 25%, if the Leverage Ratio
at the end of such Excess Cash Flow Period is greater than or equal to 2.50 to
1.00 but less than 3.25 to 1.00 and (iii) 0%, if the Leverage Ratio at the end
of such Excess Cash Flow Period is less than 2.50 to 1.00.
"Required Restatement Lenders" shall mean (a) the Required Lenders
(as defined in the Existing Credit Agreement), (b) each of the New Revolving
Facility Lenders, (c) each of the Tranche A Term Loan Lenders and (d) each of
the Tranche B Term Loan Lenders.
"Reserve Account" shall have the meaning assigned to such term in
Section 11.02(a).
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"Reset Date" shall have the meaning assigned to such term in Section
1.03(a).
"Responsible Officer" of any person shall mean any executive officer
or Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restatement Effective Date" shall mean the date on which the
conditions specified in Section 4.01 are satisfied (or waived by the Required
Restatement Lenders).
"Restatement Effective Date Ancillary Facility" shall mean each
Ancillary Facility made available on the Restatement Effective Date and set
forth on Schedule 1.01(c).
"Restatement Effective Date Foreign Subsidiary Borrower Agreement"
shall mean a Foreign Subsidiary Borrower Agreement listed on Schedule 1.01(i)
entered into by Foreign Subsidiary Borrowers listed on such schedule on the
Restatement Effective Date.
"Restatement Transactions" shall mean the execution and delivery of
this Agreement by each Person party thereto, the satisfaction of the conditions
to the effectiveness thereof and the consummation of the transactions
contemplated thereby.
"Revolving Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean a Global Revolving Facility
Commitment or a U.S. Revolving Facility Commitment.
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the sum at such time, without duplication, of (a) such Lender's
Global Revolving Facility Credit Exposure and (b) such Lender's U.S. Revolving
Facility Credit Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean February 28, 2009 or, if
the Effective Funding Time occurs, January 10, 2010.
"Revolving L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit denominated in Dollars
outstanding at such time, (b) the Dollar
68
Equivalent of the aggregate undrawn amount of all Letters of Credit denominated
in a Foreign Currency outstanding at such time, (c) the aggregate principal
amount of all L/C Disbursements (i) made in Dollars that have not yet been
reimbursed at such time or (ii) made in a Foreign Currency and converted into
Dollars pursuant to Section 2.05(e) or 2.05(k) and (d) the Dollar Equivalent of
the aggregate principal amount of all L/C Disbursements made in a Foreign
Currency that have not yet been reimbursed or converted into Dollars pursuant to
Section 2.05(e) or 2.05(k). The Revolving L/C Exposure of any U.S. Revolving
Facility Lender at any time shall mean its U.S. Revolving Facility Percentage of
the aggregate Revolving L/C Exposure at such time.
"Revolving Loans" shall mean Global Revolving Facility Loans and
U.S. Revolving Facility Loans.
"Sale and Lease-Back Transaction" shall have the meaning assigned to
such term in Section 6.03.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second Amendment and Restatement Agreement" shall have the meaning
assigned to such term in the preamble to this Agreement.
"Second Restatement Effective Date" shall mean January 9, 2004.
"Secured Parties" shall mean the "Secured Parties" as defined in the
U.S. Collateral Agreement.
"Securities Act" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Security Documents" shall mean the Mortgages, the U.S. Collateral
Agreement, the Foreign Pledge Agreements, the Foreign Security Agreements, the
Foreign Guarantee, the Xxxxx Guarantee, the Reaffirmation Agreement and each of
the security agreements, mortgages and other instruments and documents executed
and delivered pursuant to any of the foregoing or pursuant to Section 5.10.
"Seller Note" shall mean the subordinated Indebtedness in an
aggregate principal amount of $600,000,000 issued on the Closing Date by
Intermediate Holdings and evidenced by a note,
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which Indebtedness was repaid in full on November 12, 2004 with the proceeds of
the Intermediate Holdings Loan.
"Senior Note Documents" shall mean the Senior Notes and the Senior
Note Indentures.
"Senior Note Indentures" shall mean the Indentures dated as of
February 18, 2003, among the U.S. Borrower, the Subsidiaries party thereto and
the trustee named therein from time to time, as in effect on the Closing Date
and as amended, restated, supplemented or otherwise modified from time to time
in accordance with the requirements thereof and of this Agreement.
"Senior Notes" shall mean the U.S. Borrower's 9.375% Senior Notes
due 2013 and 10.125% Senior Notes due 2013, in each case issued pursuant to the
Senior Note Indentures and any notes issued by the U.S. Borrower in exchange
for, and as contemplated by, the Senior Notes with substantially identical terms
as the Senior Notes.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes and the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" shall mean the Indentures
dated as of February 18, 2003, among the U.S. Borrower, the Subsidiaries party
thereto and the trustee named therein from time to time, as in effect on the
Closing Date and as amended, restated, supplemented or otherwise modified from
time to time in accordance with the requirements thereof and of this Agreement.
"Senior Subordinated Notes" shall mean the U.S. Borrower's 11%
Senior Subordinated Notes due 2013 and 11.75% Senior Subordinated Notes due
2013, in each case issued pursuant to the Senior Subordinated Note Indentures
and any notes issued by the U.S. Borrower in exchange for, and as contemplated
by, the Senior Subordinated Notes with substantially identical terms as the
Senior Subordinated Notes.
"Statutory Reserves" shall mean, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve, liquid asset or other similar percentages (expressed as a decimal)
established by any Governmental Authority of the United States of America or of
the jurisdiction of such currency or any jurisdiction in which Loans in such
currency are made to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in such
70
currency or by reference to which interest rates applicable to Loans in such
currency are determined.
"Sterling" or "(pound)" shall mean the lawful money of the United
Kingdom.
"Stock Consideration" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Stockholders Agreement" shall mean the Stockholders Agreement dated
as of February 28, 2003, among the Fund and Northrop Grumman Corporation, as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the requirements thereof and of this Agreement.
"Stock Purchases" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Subordinated Intercompany Debt" shall have the meaning assigned to
such term in Section 6.01(d).
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, directly or indirectly, owned, Controlled or held, or (b) that
is, at the time any determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the U.S. Borrower.
"Subsidiary Loan Party" shall mean each Subsidiary that is (a) a
Domestic Subsidiary Loan Party or (b) a Foreign Subsidiary Loan Party.
"Swap Agreement" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions, provided that
no phantom stock or similar plan providing for payments only on account of
services provided by
71
current or former directors, officers, employees or consultants of the U.S.
Borrower or a Subsidiary shall be a Swap Agreement.
"Swingline Borrowing Request" shall mean a request by a Borrower
substantially in the form of Exhibit C-2.
"Swingline Dollar Borrowing" shall mean a Borrowing comprised of
Swingline Dollar Loans.
"Swingline Dollar Commitment" shall mean, with respect to each
Swingline Dollar Lender, the commitment of such Swingline Dollar Lender to make
Swingline Dollar Loans pursuant to Section 2.04. The amount of each Swingline
Dollar Lender's Swingline Dollar Commitment on the Restatement Effective Date is
set forth on Schedule 2.04(a). The aggregate amount of the Swingline Dollar
Commitments on the Restatement Effective Date is $75,000,000.
"Swingline Dollar Exposure" shall mean at any time the aggregate
principal amount of all outstanding Swingline Dollar Borrowings at such time.
The Swingline Dollar Exposure of any U.S. Revolving Facility Lender at any time
shall mean its U.S. Revolving Facility Percentage of the aggregate Swingline
Dollar Exposure at such time.
"Swingline Dollar Lender" shall mean a Lender with a Swingline
Dollar Commitment or outstanding Swingline Dollar Loans.
"Swingline Dollar Loans" shall mean the swingline loans denominated
in Dollars and made to the U.S. Borrower pursuant to Section 2.04.
"Swingline Exposure" shall mean at any time the sum of the Swingline
Dollar Exposure and the Swingline Foreign Currency Exposure.
"Swingline Foreign Currency Borrowing" shall mean a Borrowing
comprised of Swingline Foreign Currency Loans.
"Swingline Foreign Currency Commitment" shall mean, with respect to
each Swingline Foreign Currency Lender, the commitment of such Swingline Foreign
Currency Lender to make Swingline Foreign Currency Loans pursuant to Section
2.04. The amount of each Swingline Foreign Currency Lender's Swingline Foreign
Currency Commitment on the Restatement Effective Date is set forth on Schedule
2.04(b). The aggregate amount of the Swingline Foreign Currency Commitments on
the Restatement Effective Date is $50,000,000.
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"Swingline Foreign Currency Exposure" shall mean at any time the
Dollar Equivalent of the aggregate principal amount of all outstanding Swingline
Foreign Currency Loans at such time. The Swingline Foreign Currency Exposure of
any Global Revolving Facility Lender at any time shall mean its ratable share
(based on Available Unused Commitments) of the aggregate Swingline Foreign
Currency Exposure at such time.
"Swingline Foreign Currency Lender" shall mean a Lender with a
Swingline Foreign Currency Commitment or outstanding Swingline Foreign Currency
Loans.
"Swingline Foreign Currency Loans" shall mean the swingline loans
denominated in a Foreign Currency and made to a Foreign Subsidiary Borrower
pursuant to Section 2.04.
"Swingline Foreign Currency Rate" shall mean with respect to any
Swingline Foreign Currency Borrowing, (a) for an Interest Period of 1 day or 7
days, the rate per annum determined by the Applicable Agent on the Quotation Day
for such Interest Period by reference to the British Bankers' Association
Interest Settlement Rates for deposits in the currency of such Borrowing (as
reflected on the applicable Telerate screen page), for a period equal to such
Interest Period or (b) for any other Interest Period, the average (rounded
upward, if necessary, to the next 1/100 of 1%) of the respective interest rates
per annum at which deposits in the currency of such Swingline Foreign Currency
Borrowing are offered for such Interest Period to major banks in the London
interbank market by JPMorgan Chase Bank, N.A., Deutsche Bank A.G. and Bank of
America, N.A. on the Quotation Day.
"Swingline Lender" shall mean (i) the Swingline Dollar Lenders, in
their respective capacities as Lenders of Swingline Dollar Loans, and (ii) the
Swingline Foreign Currency Lenders, in their respective capacities as Lenders of
Swingline Foreign Currency Loans.
"Swingline Loans" shall mean the Swingline Dollar Loans and the
Swingline Foreign Currency Loans.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges (including ad
valorem charges) or withholdings imposed by any Governmental Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
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"Term Loans" shall mean the Tranche A Term Loans, the Tranche A-1
Term Loans, the Tranche B Term Loans, the Tranche D-1 Term Loans, the Xxxxxxx
X-0 Term Loans and the Tranche E Term Loans. Each Tranche A Term Loan, each
Tranche A-1 Term Loan, each Tranche B Term Loan, each Xxxxxxx X-0 Term Loan and
each Tranche E Term Loan shall be a Eurocurrency Term Loan or an ABR Term Loan.
Each Tranche D-2 Term Loan shall be a Eurocurrency Term Loan.
"Test Period" shall mean, on any date of determination, the period
of four consecutive fiscal quarters of the U.S. Borrower then last ended (taken
as one accounting period).
"Third Amendment and Restatement Agreement" shall have the meaning
assigned to such term in the preamble to this Agreement.
"Total Revolving Credit Commitment" shall mean, (a) at any time
prior to the Effective Funding Time, the total Existing Global Revolving
Facility Commitments and the total Existing U.S. Revolving Facility Commitments,
as in effect at such time, and (b) at any time at and after the Effective
Funding Time, the total New Global Revolving Facility Commitments and the total
New U.S. Revolving Facility Commitments, as in effect at such time.
"Tranche A Facility" shall mean the Tranche A Term Loan Commitments
and the Tranche A Term Loans converted or made hereunder.
"Tranche A Installment Date" shall have the meaning assigned to such
term in Section 2.10(a).
"Tranche A Maturity Date" shall mean January 10, 2010.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of
Tranche A Term Loans.
"Tranche A Term Loan Commitment" shall mean, with respect to each
Lender, the agreement of such Lender to convert Tranche A-1 Term Loans to
Tranche A Terms Loans, or the commitment of such Lender to make Tranche A Term
Loans, in each case as set forth in Section 2.01. The aggregate amount of the
Tranche A Term Loan Commitments on the date hereof is $400,000,000.
"Tranche A Term Loans" shall mean the Tranche A Term Loans converted
from Tranche A-1 Term Loans or made by the Lenders to the U.S. Borrower pursuant
to Section 2.01.
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"Tranche A-1 Facility" shall mean the Tranche A-1 Term Loans made or
converted pursuant to the Second Amendment and Restatement Agreement.
"Tranche A-1 Installment Date" shall have the meaning assigned to
such term in Section 2.10(b).
"Tranche A-1 Maturity Date" shall mean February 28, 2009.
"Tranche A-1 Term Borrowing" shall mean a Borrowing comprised of
Tranche A-1 Term Loans.
"Tranche A-1 Term Loans" shall mean the Tranche A-1 Term Loans made
by the Lenders to the U.S. Borrower or converted from Existing Tranche A Term
Loans pursuant to the Second Amendment and Restatement Agreement.
"Tranche B Facility" shall mean the Tranche B Term Loan Commitments
and the Tranche B Term Loans converted or made hereunder.
"Tranche B Installment Date" shall have the meaning assigned to such
term in Section 2.10(c).
"Tranche B Maturity Date" shall mean June 30, 2012.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of
Tranche B Term Loans.
"Tranche B Term Loan Commitment" shall mean, with respect to each
Lender, the agreement of such Lender to convert Tranche D-1 Term Loans to
Tranche B Term Loans, or the commitment of such Lender to make Tranche B Term
Loans, in each case as set forth in Section 2.01. The aggregate amount of the
Tranche B Term Loan Commitments on the date hereof is $600,000,000.
"Tranche B Term Loans" shall mean the Tranche B Term Loans converted
from Tranche D-1 Term Loans or made by the Lenders to the U.S. Borrower pursuant
to Section 2.01.
"Tranche D Installment Date" shall have the meaning assigned to such
term in Section 2.10(d).
"Tranche D Maturity Date" shall mean February 28, 2011.
"Tranche D Term Borrowing" shall mean a Tranche D-1 Term Borrowing
or a Xxxxxxx X-0 Term Borrowing.
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"Tranche D Term Loans" shall mean the Xxxxxxx X-0 Term Loans and the
Tranche D-2 Term Loans.
"Tranche D-1 Facility" shall mean the Tranche D-1 Term Loans made or
converted pursuant to the Second Amendment and Restatement Agreement.
"Tranche D-1 Term Borrowing" shall mean a Borrowing comprised of
Tranche D-1 Term Loans.
"Tranche D-1 Term Loans" shall mean the Tranche D-1 Term Loans made
by the Lenders to the U.S. Borrower or converted from Existing Tranche C-1 Term
Loans pursuant to the Second Amendment and Restatement Agreement.
"Tranche D-2 Facility" shall mean the Tranche D-2 Term Loans made or
converted pursuant to the Second Amendment and Restatement Agreement.
"Tranche D-2 Term Borrowing" shall mean a Borrowing comprised of
Tranche D-2 Term Loans.
"Tranche D-2 Term Loans" shall mean the Tranche D-2 Term Loans made
by the Lenders to the U.S. Borrower or converted from Existing Tranche C-2 Term
Loans pursuant to the Second Amendment and Restatement Agreement.
"Tranche E Facility" shall mean the Tranche E Term Loans made
pursuant to the Third Amendment and Restatement Agreement.
"Tranche E Installment Date" shall mean the meaning assigned to such
term in Section 2.10(e).
"Tranche E Maturity Date" shall mean October 31, 2010.
"Tranche E Term Borrowing" shall mean a Borrowing comprised of
Tranche E Term Loans.
"Tranche E Term Loans" shall mean the Tranche E Term Loans made by
the Lenders to the U.S. Borrower pursuant to the Third Amendment and Restatement
Agreement.
"Transaction Costs" shall have the meaning given such term in the
preamble to this Agreement.
"Transactions" shall mean all the transactions described in the
preamble to, or otherwise contemplated by, this Agreement or the Purchase
Agreement.
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"Transferor" shall mean TRW Automotive Receivables, LLC, a Delaware
limited liability company.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate, the Alternate Base Rate and the Swingline
Foreign Currency Rate.
"Unfunded Ancillary Credit Extension" shall mean, at any time, an
extension of credit under an Ancillary Facility in respect of which the
applicable Ancillary Lender has not previously advanced funds to, or on behalf
of, the Foreign Subsidiary Borrower but in respect of which such Ancillary
Lender remains obligated so to advance funds.
"U.S. Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement, provided that unless the context
requires otherwise, if the U.S. Borrower merges with Intermediate Holdings (or
the surviving entity of any merger of Holdings or Intermediate Holdings)
pursuant to Section 6.05(b), the surviving entity in such merger shall be deemed
to be the U.S. Borrower for all purposes under this Agreement and all terms and
conditions applicable to Intermediate Holdings or Holdings, as applicable, shall
cease to be in force and effect.
"U.S. Collateral Agreement" shall mean the U.S. Guarantee and
Collateral Agreement, as amended, supplemented or otherwise modified from time
to time, in the form of Exhibit E, among Holdings, Intermediate Holdings, the
U.S. Borrower, each Domestic Subsidiary Loan Party and the Collateral Agent.
"U.S. Lending Office" shall mean, as to any Lender, the applicable
branch, office or Affiliate of such Lender designated by such Lender to make
Loans in Dollars.
"U.S. Mortgages" shall mean the mortgages, deeds of trust,
assignments of leases and rents and other security documents delivered on the
Closing Date, as amended, supplemented or otherwise modified from time to time,
with respect to Mortgaged Properties located in the United States of America or
pursuant to Section 5.10, each substantially in the form of Exhibit D.
"U.S. Perfection Certificate" shall mean a certificate in the form
of Annex I to the U.S. Collateral Agreement or any other form approved by the
Collateral Agent.
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"U.S. Receivables Purchase Agreement" shall mean (a) the Receivables
Purchase Agreement dated as of February 28, 2003, among the Receivables
Subsidiary, Transferor, the U.S. Borrower and the Subsidiaries party thereto,
related to the Permitted Receivables Financing, as it may be amended,
supplemented or otherwise modified to the extent permitted by Section 6.09 and
(b) any agreement replacing such agreement, provided that such replacing
agreement contains terms that are substantially similar to the agreement being
replaced and that are otherwise no more adverse in any material respect to the
Lenders than the applicable terms of the agreement being replaced.
"U.S. Revolving Facilities" shall mean (a) prior to the Effective
Funding Time, the Existing U.S. Revolving Facility and (b) at or after the
Effective Funding Time, the New U.S. Revolving Facility.
"U.S. Revolving Facility Borrowing" shall mean a Borrowing comprised
of U.S. Revolving Facility Loans.
"U.S. Revolving Facility Commitment" shall mean (a) prior to the
Effective Funding Time, an Existing U.S. Revolving Facility Commitment and (b)
at or after the Effective Funding Time, a New U.S. Revolving Facility
Commitment.
"U.S. Revolving Facility Credit Exposure" shall mean (a) prior to
the Effective Funding Time, the Existing U.S. Revolving Facility Credit Exposure
and (b) at and after the Effective Funding Time, the New U.S. Revolving Facility
Credit Exposure.
"U.S. Revolving Facility Lender" shall mean an Existing U.S.
Revolving Facility Lender or a New U.S. Revolving Facility Lender, as
applicable.
"U.S. Revolving Facility Loans" shall mean the Existing U.S.
Revolving Facility Loans and the New U.S. Revolving Facility Loans.
"U.S. Revolving Facility Percentage" shall mean, (a) with respect to
an U.S. Revolving Facility Lender prior to the Effective Funding Time, the
Existing U.S. Revolving Facility Percentage of such U.S. Revolving Facility
Lender and (b) with respect to a U.S. Revolving Facility Lender at and after the
Effective Funding Time, the New U.S. Revolving Facility Percentage of such U.S.
Revolving Facility Lender.
"Wholly Owned Subsidiary" of any person means a subsidiary of such
person, all of the Equity Interests of which
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(other than directors' qualifying shares or nominee or other similar shares
required pursuant to applicable law) are owned by such person or another Wholly
Owned Subsidiary of such person. Unless the context otherwise indicates, all
references herein to a "Wholly Owned Subsidiary" are references to a Wholly
Owned Subsidiary of the U.S. Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to the U.S. Borrower and
the Subsidiaries on a consolidated basis at any date of determination, Current
Assets at such date of determination minus Current Liabilities at such date of
determination; provided that, for purposes of calculating Excess Cash Flow,
increases or decreases in Working Capital shall be calculated without regard to
any changes in Current Assets or Current Liabilities as a result of (a) any
reclassification in accordance with GAAP of assets or liabilities, as
applicable, between current and noncurrent or (b) the effects of purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or referred
to in Section 1.01 shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, any reference in this Agreement to any
Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the U.S.
Borrower notifies the Administrative Agent that the U.S. Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the U.S.
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before
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such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. For the purposes of
determining compliance with Section 6.01 through Section 6.10 with respect to
any amount in a currency other than Dollars, amounts shall be deemed to equal
the Dollar Equivalent thereof determined using the Exchange Rate calculated as
of the Business Day on which such amounts were incurred or expended, as
applicable.
SECTION 1.03. Exchange Rates. (a) Not later than 1:00 p.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date and (ii) give notice
thereof to the Borrowers. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date") or other date of determination, shall remain
effective until the next succeeding Reset Date, and shall for all purposes of
this Agreement (other than any other provision expressly requiring the use of an
Exchange Rate calculated as of a specified date) be the Exchange Rates employed
in converting any amounts between Dollars and each of the Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date, the Administrative Agent shall (i) determine the aggregate
amount of the Dollar Equivalents of the principal amounts of the Loans
denominated in Foreign Currencies then outstanding (after giving effect to
any Loans denominated in Foreign Currencies made or repaid on such date)
and the Revolving L/C Exposure and (ii) notify the Lenders, each Issuing
Bank and the Borrowers of the results of such determination.
SECTION 1.04. Redenomination of Certain Foreign Currencies. (a) Each
obligation of any party to this Agreement 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 Closing Date 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 Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with
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respect to such Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this
Agreement and (ii) without increasing any Commitment of any Lender, all
references in this Agreement to minimum amounts (or integral multiples
thereof) denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the
Closing Date shall, immediately upon such adoption, be replaced by
references to such minimum amounts (or integral multiples thereof) as
shall be specified herein with respect to Borrowings denominated in Euros.
(c) 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.
SECTION 1.05. Effectuation of Transfers. Each of the representations
and warranties of Holdings, Intermediate Holdings and the Borrowers contained in
this Agreement (and all corresponding definitions) are made after giving effect
to the Restatement Transactions, unless the context otherwise requires.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
set forth herein, each Lender agrees (i) to make (A) Global Revolving Facility
Loans denominated in Dollars to the U.S. Borrower from its U.S. Lending Office
and (B) Global Revolving Facility Loans denominated in Dollars or Foreign
Currencies to Foreign Subsidiary Borrowers from its Global Lending Office, in
the case of clauses (A) and (B) from time to time during the Availability Period
in an aggregate principal amount that will not result in (1) such Lender's
Global Revolving Facility Credit Exposure exceeding (x) such Lender's Global
Revolving Facility Commitment minus (y) such Lender's Ancillary Commitment or
(2) the Global Revolving Facility Credit Exposure exceeding (x) the total Global
Revolving Facility Commitments minus (y) the total Ancillary Commitments, and
(ii) to make U.S. Revolving Facility Loans denominated in Dollars to the U.S.
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Borrower from its U.S. Lending Office from time to time during the Availability
Period in an aggregate principal amount that will not result in (A) such
Lender's U.S. Revolving Facility Credit Exposure exceeding such Lender's U.S.
Revolving Facility Commitment or (B) the U.S. Revolving Facility Credit Exposure
exceeding the total U.S. Revolving Facility Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Revolving Loans.
(b) (i) Subject to the terms and conditions set forth herein,
at the Effective Funding Time (A) each Lender agrees to convert all or a portion
of its Tranche A-1 Term Loans into a principal amount of Tranche A Term Loans
equal to the principal amount of Tranche A-1 Term Loans so converted (or,
pursuant to clause (ii) below, to make Tranche A Term Loans to the U.S.
Borrower) in a principal amount equal to the Tranche A Term Loan Commitment of
such Lender and (B) each Lender agrees to convert all or a portion of its
Xxxxxxx X-0 Term Loans into a principal amount of Tranche B Term Loans equal to
the principal amount of Xxxxxxx X-0 Term Loans so converted (or, pursuant to
clause (ii) below, to make Tranche B Term Loans to the U.S. Borrower) in a
principal amount equal to the Tranche B Term Loan Commitment of such Lender.
(ii) It is understood and agreed that (A) any Lender that holds any
Tranche A-1 Term Loans may elect, by delivering notice to the Administrative
Agent, to make Tranche A Term Loans to the U.S. Borrower at the Effective
Funding Time in a principal amount equal to (x) the Tranche A Term Loan
Commitment of such Lender minus (y) the aggregate principal amount of Tranche
A-1 Term Loans of such Lender being converted into Tranche A Term Loans
hereunder and (B) any Lender that holds any Tranche D-1 Term Loans may elect, by
delivering notice to the Administrative Agent, to make Tranche B Term Loans to
the U.S. Borrower at the Effective Funding Time in a principal amount equal to
(x) the Tranche B Term Loan Commitment of such Lender minus (y) the aggregate
principal amount of Xxxxxxx X-0 Term Loans of such Lender being converted into
Tranche B Term Loans hereunder. Any notice to the Administrative Agent delivered
by a Lender pursuant to this clause (ii) shall specify (1) the amount of the
Tranche A Term Loan Commitment and/or Tranche B Term Loan Commitment of such
Lender, as applicable, (2) the principal amount of Tranche A Term Loans and/or
Tranche B Term Loans to be made by such Lender at the Effective Funding Time, as
the case may be, and (3) the principal amount of Tranche A-1 Term Loans and/or
Tranche D-1 Term Loans held by such Lender, if any, that are to be converted
into Tranche A Term Loans and/or Tranche B Term Loans hereunder pursuant to
paragraph (a)(i) above.
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(iii) Subject to the terms and conditions set forth herein, (A) each
Lender that does not hold any Tranche A-1 Term Loans agrees to make a Tranche A
Term Loan to the U.S. Borrower at the Effective Funding Time in a principal
amount equal to the Tranche A Term Loan Commitment of such Lender and (B) each
Lender that does not hold any Tranche D-1 Term Loans agrees to make a Tranche B
Term Loan to the U.S. Borrower in a principal amount equal to the Tranche B Term
Loan Commitment of such Lender.
(iv) Each reference in this Agreement to the "making" of any Tranche
A Term Loan or Tranche B Term Loan, or words of similar import, shall, in the
case of such Lender, be deemed to include each conversion of Tranche A-1 Term
Loans and Tranche D-1 Term Loans pursuant to paragraph (a)(i) above. Without
limiting the generality of the foregoing, it is understood that the Tranche A
Term Loans and Tranche B Term Loans into which the Tranche A-1 Term Loans and
Tranche D-1 Term Loans are so converted shall be treated identically to the
Tranche A Term Loans and Tranche B Term Loans being funded (and not being
converted) at the Effective Funding Time and shall have identical Interest
Periods in identical proportions and durations as all other Tranche A Term Loans
or Tranche B Term Loans, as applicable (and, for these purposes, any Interest
Periods for Tranche A-1 Term Loans or Xxxxxxx X-0 Term Loans that are
Eurocurrency Term Loans in effect at the Effective Funding Time shall be
terminated at the Effective Funding Time, and any such converting Lender shall
be paid accrued interest on its Tranche A-1 Term Loans and Tranche D-1 Term
Loans being so converted, together with any amounts payable under Section 2.16,
as if the Tranche A-1 Term Loans or Tranche D-1 Term Loans, as the case may be,
were being prepaid in full at the Effective Funding Time).
(c) All Tranche A-1 Term Loans, Tranche D Term Loans, Tranche
E Term Loans and Existing Revolving Loans outstanding under the Existing
Credit Agreement on the Restatement Effective Date shall remain
outstanding hereunder on the terms set forth herein until the Effective
Funding Time. At the Effective Funding Time, (i) all Tranche A-1 Term
Loans, Tranche D Term Loans and Existing Revolving Loans will be converted
or repaid as provided herein and (ii) all Tranche E Term Loans outstanding
at such time shall remain outstanding hereunder on the terms set forth
herein.
(d) Amounts repaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as
part of a Borrowing consisting of Loans under
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the same Facility and of the same Type made by the Lenders ratably in accordance
with their respective Commitments under the applicable Facility (or, in the case
of Swingline Loans, in accordance with their respective Swingline Dollar
Commitments or Swingline Foreign Currency Commitments, as applicable); provided,
however, that Global Revolving Facility Loans under the Global Revolving
Facility shall be made by the Global Revolving Facility Lenders ratably in
accordance with their respective Available Unused Commitments on the date such
Loans are made hereunder. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Borrowing denominated in
Dollars (other than a Swingline Dollar Borrowing) shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the applicable Borrower may
request in accordance herewith and (ii) each Borrowing denominated in a
Foreign Currency (other than a Swingline Foreign Currency Borrowing) shall
be comprised entirely of Eurocurrency Loans. Each Swingline Dollar
Borrowing shall be an ABR Borrowing. Each Swingline Foreign Currency
Borrowing shall be comprised entirely of Swingline Foreign Currency Loans.
Each Lender at its option may make any ABR Loan or Eurocurrency Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Loan in accordance
with the terms of this Agreement and such Lender shall not be entitled to
any amounts payable under Section 2.15, 2.17 or 2.21 solely in respect of
increased costs resulting from such exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum; provided that a Eurocurrency Revolving
Borrowing that is an Ancillary Replacement Borrowing shall be permitted to
be in an amount necessary to finance Ancillary Credit Extensions under an
Ancillary Facility being terminated pursuant to Section 2.22(e). At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of the Borrowing Multiple
and not less than the Borrowing Minimum; provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire
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unused balance of the U.S. Revolving Facility Commitments or that is
required to finance the reimbursement of an L/C Disbursement as
contemplated by Section 2.05(e). Each Swingline Dollar Borrowing and
Swingline Foreign Currency Borrowing shall be in an amount that is an
integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum. Borrowings of more than one Type and under more than
one Facility may be outstanding at the same time; provided that there
shall not at any time be more than a total of (i) 10 Eurocurrency
Borrowings outstanding under each of the Tranche A Facility, the Tranche
A-1 Facility, the Tranche B Facility, the Xxxxxxx X-0 Xxxxxxxx, Xxxxxxx
X-0 Facility and the Tranche E Facility and (ii) 35 Eurocurrency
Borrowings outstanding under each of the Global Revolving Facility and the
U.S. Revolving Facility (not including Ancillary Replacement Borrowings).
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would
end after the Revolving Credit Maturity Date, Tranche A Maturity Date,
Tranche A-1 Maturity Date, Tranche B Maturity Date, Tranche D Maturity
Date or Tranche E Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. Except in the case of an
Ancillary Replacement Borrowing (which shall be governed by Section 2.22(e)), to
request a Revolving Borrowing, the applicable Borrower shall notify the
Applicable Agent of such request by telephone (a) in the case of a Eurocurrency
Borrowing, not later than 2:00 p.m., Local Time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 2:00 p.m., Local Time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an L/C Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., Local Time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the Applicable
Agent of a written Borrowing Request in a form approved by the Applicable Agent
and signed by the applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrower requesting such Borrowing;
(ii) whether the requested Borrowing is to be a Global
Revolving Facility Borrowing, a U.S. Revolving
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Facility Borrowing, a Tranche A Term Borrowing or a Tranche B Term
Borrowing;
(iii) in the case of a Global Revolving Facility Borrowing
requested by a Foreign Subsidiary Borrower, the Foreign Currency in
which such Borrowing is to be denominated;
(iv) the aggregate amount of the requested Borrowing
(expressed in Dollars or the applicable Foreign Currency);
(v) the date of such Borrowing, which shall be a Business Day;
(vi) in the case of a Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(vii) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by clause (a) of the definition of the term "Interest
Period"; and
(viii) the location and number of the applicable Borrower's
account to which funds are to be disbursed.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing, unless such Global
Revolving Facility Borrowing (i) is denominated in a Foreign Currency and (ii)
is being requested by a Foreign Subsidiary Borrower, in which case such Global
Revolving Facility Borrowing shall be a Eurocurrency Borrowing. If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing, then
the applicable Borrower shall be deemed to have selected an Interest Period of
one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Applicable Agent shall advise each Lender of
the details thereof and of the amount of such Lender's Loan to be made as part
of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, (i) each Swingline Dollar Lender agrees to make
Swingline Dollar Loans to the U.S. Borrower from time to time during the
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (x) the aggregate principal amount of outstanding
Swingline Dollar Loans made by such Swingline Dollar Lender exceeding such
Swingline Dollar Lender's Swingline Dollar Commitment or (y) the U.S. Revolving
Facility Credit Exposure exceeding the U.S.
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Revolving Facility Commitments and (ii) each Swingline Foreign Currency Lender
agrees to make Swingline Foreign Currency Loans to the Foreign Subsidiary
Borrowers from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (x) the Dollar
Equivalent of the aggregate principal amount of outstanding Swingline Foreign
Currency Loans made by such Swingline Foreign Currency Lender exceeding such
Swingline Foreign Currency Lender's Swingline Foreign Currency Commitment or (y)
the sum of the Global Revolving Facility Credit Exposure and the total Ancillary
Commitments exceeding the total Global Revolving Facility Commitments; provided
that no Swingline Lender shall be required to make a Swingline Loan to refinance
an outstanding Swingline Dollar Borrowing or Swingline Foreign Currency
Borrowing. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Dollar Borrowing or Swingline
Foreign Currency Borrowing, the applicable Borrower shall notify the
Applicable Agent of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), not later than 1:00 p.m.,
Local Time, on the day of a proposed Swingline Dollar Borrowing or
Swingline Foreign Currency Borrowing. Each such notice and Swingline
Borrowing Request shall be irrevocable and shall specify (i) in the
case of a Swingline Foreign Currency Borrowing, the Borrower
requesting such Borrowing, (ii) the requested date (which shall be a
Business Day), (iii) in the case of a Swingline Foreign Currency
Borrowing, the Foreign Currency in which such Swingline Foreign
Currency Borrowing is to be denominated, (iv) the amount of the
requested Swingline Dollar Borrowing (expressed in Dollars) or
Swingline Foreign Currency Borrowing (expressed in the applicable
Foreign Currency), as applicable, and (v) in the case of a Swingline
Foreign Currency Borrowing, the Interest Period to be applicable
thereto, which shall be a period contemplated by clause (b) of the
definition of the term "Interest Period". The Applicable Agent shall
promptly advise each Swingline Dollar Lender (in the case of a
notice relating to a Swingline Dollar Borrowing) or each Swingline
Foreign Currency Lender (in the case of a notice relating to a
Swingline Foreign Currency Borrowing) of any such notice received
from a Borrower and the amount of such Swingline Lender's Swingline
Loan to be made as part of the requested Swingline Dollar Borrowing
or Swingline Foreign Currency Borrowing, as applicable. Each
Swingline Dollar Lender shall make each Swingline Dollar Loan to be
made by it hereunder in accordance with
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Section 2.02(a) on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account
of the Applicable Agent most recently designated by it for such
purpose by notice to the Swingline Dollar Lenders. The Applicable
Agent will make such Swingline Dollar Loans available to the U.S.
Borrower by promptly crediting the amounts so received, in like
funds, to the general deposit account of the U.S. Borrower with the
Applicable Agent (or, in the case of a Swingline Dollar Borrowing
made to finance the reimbursement of an L/C Disbursement as provided
in Section 2.05(e), by remittance to the applicable Issuing Bank).
Each Swingline Foreign Currency Lender shall make each Swingline
Foreign Currency Loan to be made by it hereunder in accordance with
Section 2.02(a) on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., Local Time, to the account
of the Applicable Agent most recently designated by it for such
purpose by notice to the Swingline Foreign Currency Lenders. The
Applicable Agent will make such Swingline Foreign Currency Loans
available to the applicable Foreign Subsidiary Borrower by (i)
promptly crediting the amounts so received, in like funds, to the
general deposit account with the Applicable Agent of the applicable
Foreign Subsidiary Borrower most recently designated to the
Applicable Agent or (ii) by wire transfer of the amounts received in
immediately available funds to the general deposit account of the
applicable Foreign Subsidiary Borrower most recently designated to
the Applicable Agent.
(c) A Swingline Lender may by written notice given to
the Applicable Agent (and to the other Swingline Dollar Lenders or
Swingline Foreign Currency Lenders, as applicable) not later than
10:00 a.m., Local Time, on any Business Day require (i) in the case
of a Swingline Dollar Lender, the U.S. Revolving Facility Lenders to
acquire participations on such Business Day in all or a portion of
the outstanding Swingline Dollar Loans made by it or (ii) in the
case of a Swingline Foreign Currency Lender, the Global Revolving
Facility Lenders to acquire participations on such Business Day in
all or a portion of the outstanding Swingline Foreign Currency Loans
made by it. Such notice shall specify the aggregate amount of such
Swingline Loans in which the U.S. Revolving Facility Lenders or
Global Revolving Facility Lenders, as applicable, will participate.
Promptly upon receipt of such notice, the Applicable Agent will give
notice thereof to each such Lender, specifying in such notice such
Lender's U.S. Revolving Facility Percentage or such Global
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Revolving Facility Lender's ratable share (based on Available Unused
Commitments), as applicable, of such Swingline Loan or Loans. Each
U.S. Revolving Facility Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the
Applicable Agent, for the account of the applicable Swingline Dollar
Lender, such U.S. Revolving Facility Lender's U.S. Revolving
Facility Percentage of such Swingline Dollar Loan or Loans. Each
Global Revolving Facility Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to
pay to the Applicable Agent, for the account of the applicable
Swingline Foreign Currency Lender, such Global Revolving Facility
Lender's ratable share (based on Available Unused Commitments) of
such Swingline Foreign Currency Loan or Loans. Each Global Revolving
Facility Lender and each U.S. Revolving Facility Lender acknowledges
and agrees that its respective obligation to acquire participations
in Swingline Foreign Currency Loans and Swingline Dollar Loans, as
applicable, pursuant to this paragraph is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Credit Lender shall comply with its
obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Revolving Credit Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Applicable Agent shall promptly pay to the
applicable Swingline Lender the amounts so received by it from the
Revolving Credit Lenders. The Applicable Agent shall notify the
applicable Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph (c), and thereafter payments in
respect of such Swingline Loan shall be made to the Applicable Agent
and not to the applicable Swingline Lender. Any amounts received by
a Swingline Lender from the applicable Borrower (or other party on
behalf of such Borrower) in respect of a Swingline Loan after
receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Applicable
Agent; any such amounts received by the Applicable Agent shall be
promptly remitted by the Applicable Agent to the Revolving Credit
Lenders that shall have made their payments pursuant to this
paragraph and to such Swingline Lender, as their interests may
appear; provided that any such payment so remitted
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shall be repaid to such Swingline Lender or to the Applicable Agent,
as applicable, if and to the extent such payment is required to be
refunded to the applicable Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall
not relieve the applicable Borrower of any default in the payment
thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, each Borrower may request the
issuance of Dollar Letters of Credit and Foreign Currency Letters of
Credit for its own account, in each case in a form reasonably acceptable
to the applicable Issuing Bank, at any time and from time to time during
the Availability Period and prior to the date that is five Business Days
prior to the Revolving Credit Maturity Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Applicant Party to, or entered into by the
Applicant Party with, an Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control. Each Letter of
Credit outstanding at the Effective Funding Time shall remain outstanding
hereunder on the terms set forth herein.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of Credit
(or the amendment, renewal (other than an automatic renewal in
accordance with paragraph (c) of this Section) or extension of an
outstanding Letter of Credit), the Applicant Party shall hand
deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable
Issuing Bank) to the applicable Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section), the amount of such Letter of
Credit, (subject to paragraph (n) of this Section) the currency in
which such Letter of Credit is to be denominated, the name and
address of the beneficiary thereof and such other information as
shall be necessary to issue, amend, renew or extend such Letter of
Credit. If requested by the applicable Issuing Bank, the Applicant
Party also shall submit a letter of credit
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application on such Issuing Bank's standard form in connection with
any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the
Applicant Party shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or
extension (i) the Revolving L/C Exposure shall not exceed
$250,000,000 and (ii) the U.S. Revolving Facility Credit Exposure
shall not exceed the total U.S. Revolving Facility Commitments.
(c) Expiration Date. Each Letter of Credit shall expire
at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business
Days prior to the Revolving Credit Maturity Date; provided that any
Letter of Credit with a one-year tenor may provide for the automatic
renewal thereof for additional one-year periods (which, in no event,
shall extend beyond the date referred to in clause (ii) of this
paragraph (c)).
(d) Participations. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the
applicable Issuing Bank or the U.S. Revolving Facility Lenders, such
Issuing Bank hereby grants to each U.S. Revolving Facility Lender,
and each U.S. Revolving Facility Lender hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such
U.S. Revolving Facility Lender's U.S. Revolving Facility Percentage
of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each
U.S. Revolving Facility Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent in Dollars, for the
account of the applicable Issuing Bank, such U.S. Revolving Facility
Lender's U.S. Revolving Facility Percentage of (i) each L/C
Disbursement made by such Issuing Bank in Dollars and (ii) the
Dollar Equivalent, determined using the Exchange Rates calculated as
of the date such payment is required, of each L/C Disbursement made
by such Issuing Bank in a Foreign Currency and, in each case, not
reimbursed by the U.S. Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the U.S. Borrower for any reason (or, if
such reimbursement payment was refunded in a Foreign
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Currency, the Dollar Equivalent thereof determined using the
Exchange Rates calculated as of the date of such refund). Each U.S.
Revolving Facility Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination
of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the applicable Issuing Bank shall
make any L/C Disbursement in respect of a Letter of Credit, the U.S.
Borrower shall reimburse such L/C Disbursement by paying to the
Administrative Agent an amount equal to such L/C Disbursement in
Dollars or (subject to the immediately succeeding sentence) the
applicable Foreign Currency, not later than 5:00 p.m., New York City
time, on the Business Day immediately following the date the U.S.
Borrower receives notice under paragraph (g) of this Section of such
L/C Disbursement, provided that in the case of any L/C Disbursement
made in Dollars with respect to a Letter of Credit issued for the
account of the U.S. Borrower, the U.S. Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with an ABR
Revolving Borrowing or a Swingline Dollar Borrowing, as applicable,
in an equivalent amount and, to the extent so financed, the U.S.
Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline
Dollar Borrowing. If the U.S. Borrower fails to reimburse any L/C
Disbursement when due, then (i) if such payment relates to a Foreign
Currency Letter of Credit, automatically and with no further action
required, the obligation to reimburse the applicable L/C
Disbursement shall be permanently converted into an obligation to
reimburse the Dollar Equivalent, determined using the Exchange Rates
calculated as of the date when such payment was due, of such L/C
Disbursement and (ii) the Administrative Agent shall promptly notify
the applicable Issuing Bank and each other U.S. Revolving Facility
Lender of the applicable L/C Disbursement, the Dollar Equivalent
thereof (if such L/C Disbursement relates to a Foreign Currency
Letter of Credit), the payment then due from the U.S. Borrower in
respect thereof and, in the case of a U.S. Revolving Facility
Lender, such Lender's U.S. Revolving
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Facility Percentage thereof. Promptly following receipt of such
notice, each U.S. Revolving Facility Lender shall pay to the
Administrative Agent in Dollars its U.S. Revolving Facility
Percentage of the payment then due from the U.S. Borrower
(determined as provided in clause (i) of the immediately preceding
sentence, if such payment relates to a Foreign Currency Letter of
Credit), in the same manner as provided in Section 2.06 with respect
to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the U.S. Revolving Facility
Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank in Dollars the amounts so received by it
from the U.S. Revolving Facility Lenders. Promptly following receipt
by the Administrative Agent of any payment from the U.S. Borrower
pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the
extent that U.S. Revolving Facility Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear.
Any payment made by a U.S. Revolving Facility Lender pursuant to
this paragraph to reimburse an Issuing Bank for any L/C Disbursement
(other than the funding of an ABR Revolving Loan or a Swingline
Dollar Borrowing as contemplated above) shall not constitute a Loan
and shall not relieve the U.S. Borrower of its obligation to
reimburse such L/C Disbursement.
(f) Obligations Absolute. The obligation of the U.S.
Borrower to reimburse L/C Disbursements as provided in paragraph (e)
of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the applicable Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit or (iv) any other
event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the U.S. Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor
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any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter
of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing
Bank; provided that the foregoing shall not be construed to excuse
the applicable Issuing Bank from liability to an Applicant Party to
the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each
Applicant Party to the extent permitted by applicable law) suffered
by such Applicant Party that are caused by (i) such Issuing Bank's
failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms
thereof or (ii) such Issuing Bank's refusal to issue a Letter of
Credit in accordance with the terms of this Agreement. The parties
hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of the applicable Issuing Bank, such
Issuing Bank shall be deemed to have exercised care in each such
determination and each refusal to issue a Letter of Credit. In
furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank
shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit. Such Issuing Bank shall promptly notify the Administrative
Agent, the Applicant Party and the U.S. Borrower (if the U.S.
Borrower is not the Applicant Party) by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank
has made or will make a L/C Disbursement thereunder; provided that
any failure to give or delay in giving such
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notice shall not relieve the U.S. Borrower of its obligation to
reimburse such Issuing Bank and the U.S. Revolving Facility Lenders
with respect to any such L/C Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any
L/C Disbursement, then, unless the U.S. Borrower shall reimburse
such L/C Disbursement in full on the date such L/C Disbursement is
made, the unpaid amount thereof shall bear interest, for each day
from and including the date such L/C Disbursement is made to but
excluding the date that the U.S. Borrower reimburses such L/C
Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; provided that, if such L/C Disbursement is not reimbursed by
the U.S. Borrower when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply; provided, further, that,
in the case of a L/C Disbursement made under a Foreign Currency
Letter of Credit, the amount of interest due with respect thereto
shall (i) in the case of any L/C Disbursement that is reimbursed on
or before the date such L/C Disbursement is required to be
reimbursed under paragraph (e) of this Section, (A) be payable in
the applicable Foreign Currency and (B) bear interest at a rate
equal to the rate reasonably determined by the applicable Issuing
Bank to be the cost to such Issuing Bank of funding such L/C
Disbursement plus the Applicable Margin applicable to Eurocurrency
Revolving Loans at such time and (ii) in the case of any L/C
Disbursement that is reimbursed after the date such L/C Disbursement
is required to be reimbursed under paragraph (e) of this Section,
(A) be payable in Dollars, (B) accrue interest on the Dollar
Equivalent, determined using the Exchange Rates calculated as of the
date such L/C Disbursement was made, of such L/C Disbursement, (C)
bear interest at the rate per annum then applicable to ABR Revolving
Loans and (D) Section 2.13(d) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the applicable Issuing
Bank, except that interest accrued on and after the date of payment
by any U.S. Revolving Facility Lender pursuant to paragraph (e) of
this Section to reimburse such Issuing Bank shall be for the account
of such U.S. Revolving Facility Lender to the extent of such
payment.
(i) Replacement of an Issuing Bank. An Issuing Bank may
be replaced at any time by written agreement among the U.S.
Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The
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Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replacement
shall become effective, the U.S. Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12. From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of the replaced Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be
deemed to refer to such successor or to any previous Issuing Bank,
or to such successor and all previous Issuing Banks, as the context
shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of such Issuing Bank
under this Agreement with respect to Letters of Credit issued by it
prior to such replacement but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default
shall occur and be continuing, (i) in the case of an Event of
Default described in Section 7.01(h) or (i), on the Business Day or
(ii) in the case of any other Event of Default, on the third
Business Day, in each case, following the date on which the U.S.
Borrower receives notice from the Administrative Agent (or, if the
maturity of the Loans has been accelerated, U.S. Revolving Facility
Lenders with Revolving L/C Exposure representing greater than 50% of
the total Revolving L/C Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the U.S. Borrower shall
deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Lenders, an
amount in Dollars in cash equal to the Revolving L/C Exposure as of
such date plus any accrued and unpaid interest thereon; provided
that (i) the portion of such amount attributable to undrawn Foreign
Currency Letters of Credit or L/C Disbursements in a Foreign
Currency that the U.S. Borrower is not late in reimbursing pursuant
to Section 2.05(e) shall be deposited with the Administrative Agent
in the applicable Foreign Currencies in the actual amounts of such
undrawn Letters of Credit and L/C Disbursements and (ii) upon the
occurrence of any Event of Default with respect to a Borrower
described in clause (h) or (i) of Section 7.01, the obligation to
deposit such cash collateral shall become effective immediately, and
such deposit shall become immediately due and payable in Dollars,
without demand or other notice of any kind. The U.S. Borrower also
shall deposit cash
96
collateral pursuant to this paragraph as and to the extent required
by Section 2.11(b). Each such deposit pursuant to this paragraph or
pursuant to Section 2.11(b) shall be held by the Administrative
Agent as collateral for the payment and performance of the
obligations of the U.S. Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of
(i) for so long as an Event of Default shall be continuing, the
Administrative Agent and (ii) at any other time, the U.S. Borrower,
in each case, in Permitted Investments and at the risk and expense
of the U.S. Borrower, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse each Issuing Bank for L/C
Disbursements for which such Issuing Bank has not been reimbursed
and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the U.S. Borrower
for the Revolving L/C Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of U.S.
Revolving Facility Lenders with Revolving L/C Exposure representing
greater than 50% of the total Revolving L/C Exposure), be applied to
satisfy other obligations of the U.S. Borrower under this Agreement.
If the U.S. Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall
be returned to the U.S. Borrower within three Business Days after
all Events of Default have been cured or waived. If the U.S.
Borrower is required to provide an amount of cash collateral
hereunder pursuant to Section 2.11(b), such amount (to the extent
not applied as aforesaid) shall be returned to the U.S. Borrower as
and to the extent that, after giving effect to such return, the U.S.
Borrower would remain in compliance with Section 2.11(b) and no
Event of Default shall have occurred and be continuing.
(k) Conversion. In the event that the Loans become
immediately due and payable on any date pursuant to Section 7.01,
all amounts (i) that the U.S. Borrower is at such time or thereafter
become required to reimburse or otherwise pay to the Administrative
Agent in respect of L/C Disbursements made under any Foreign
Currency Letter of Credit (other than amounts in respect of which
the U.S. Borrower has deposited cash collateral pursuant to
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Section 2.05(j), if such cash collateral was deposited in the
applicable Foreign Currency to the extent so deposited or applied),
(ii) that the U.S. Revolving Facility Lenders are at the time or
thereafter become required to pay to the Administrative Agent and
the Administrative Agent is at the time or thereafter becomes
required to distribute to an Issuing Bank pursuant to paragraph (e)
of this Section in respect of unreimbursed L/C Disbursements made
under any Foreign Currency Letter of Credit and (iii) that
constitute each U.S. Revolving Facility Lender's participation in
any L/C Disbursement made under a Foreign Currency Letter of Credit,
in each case, shall, automatically and with no further action
required, be converted into the Dollar Equivalent, determined using
the Exchange Rates calculated as of such date (or in the case of any
L/C Disbursement made after such date, on the date such L/C
Disbursement is made), of such amounts. On and after such
conversion, all amounts accruing and owed to an Agent, an Issuing
Bank or any Lender in respect of the obligations described in this
paragraph shall accrue and be payable in Dollars at the rates
otherwise applicable hereunder.
(l) Additional Issuing Banks. From time to time, the
U.S. Borrower may by notice to the Administrative Agent designate up
to four Lenders (in addition to JPMorgan Chase Bank, N.A.) that
agree (in their sole discretion) to act in such capacity and are
reasonably satisfactory to the Administrative Agent as Issuing
Banks. Each such additional Issuing Bank shall execute a counterpart
of this Agreement upon the approval of the Administrative Agent
(which approval shall not be unreasonably withheld) and shall
thereafter be an Issuing Bank hereunder for all purposes.
(m) Reporting. Unless otherwise requested by the
Administrative Agent, each Issuing Bank shall report in writing to
the Administrative Agent (i) on the first Business Day of each week
and the first Business Day of each fiscal quarter, the aggregate
face amount of Letters of Credit issued by it and outstanding as of
the last Business Day of the preceding week or the preceding fiscal
quarter, as applicable, (ii) on or prior to each Business Day on
which such Issuing Bank expects to issue, amend, renew or extend any
Letter of Credit, the date of such issuance, amendment, renewal or
extension, and the aggregate face amount of the Letters of Credit to
be issued, amended, renewed or extended by it and outstanding after
giving effect to such issuance, amendment, renewal or extension
occurred (and whether the amount thereof
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changed), (iii) on each Business Day on which such Issuing Bank
makes any L/C Disbursement, the date of such L/C Disbursement and
the amount of such L/C Disbursement and (iv) on any other Business
Day, such other information as the Administrative Agent shall
reasonably request.
(n) Notwithstanding any other provision of this
Agreement, if, after the Closing Date, any Change in Law shall make
it unlawful for an Issuing Bank to issue Letters of Credit
denominated in a Foreign Currency, then by prompt written notice
thereof to the Borrowers and to the Administrative Agent (which
notice shall be withdrawn whenever such circumstances no longer
exist), such Issuing Bank may declare that Letters of Credit will
not thereafter be issued by it in the affected Foreign Currency or
Foreign Currencies, whereupon the affected Foreign Currency or
Foreign Currencies shall be deemed (for the duration of such
declaration) not to constitute a Foreign Currency for purposes of
the issuance of Letters of Credit by such Issuing Bank.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 12:00 noon, Local Time, to
the account of the Applicable Agent most recently designated by it for
such purpose by notice to the Lenders; provided that Swingline Loans shall
be made as provided in Section 2.04. The Applicable Agent will make such
Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of the applicable
Borrower maintained with the Applicable Agent (i) in New York City, in the
case of Loans denominated in Dollars, or (ii) in London, in the case of
Loans denominated in a Foreign Currency and designated by the applicable
Borrower in the applicable Borrowing Request; provided that ABR Revolving
Loans and Swingline Dollar Borrowings made to finance the reimbursement of
a L/C Disbursement and reimbursements as provided in Section 2.05(e) shall
be remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Applicable Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Applicable Agent
such Lender's share of such Borrowing, the Applicable Agent may
assume that such Lender has made such share available on such date
in accordance with paragraph (a) of this Section 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 Borrowing
99
available to the Applicable Agent, then the applicable Lender and
the applicable Borrower severally agree to pay to the Applicable
Agent forthwith on demand (without duplication) such corresponding
amount with interest thereon, for each day from and including the
date such amount is made available to the applicable Borrower to but
excluding the date of payment to the Applicable Agent, at (i) in the
case of such Lender, (x) the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation (in the case
of a Borrowing denominated in Dollars) or (y) the rate reasonably
determined by the Applicable Agent to be the cost to it of funding
such amount (in the case of a Borrowing denominated in a Foreign
Currency) or (ii) in the case of the applicable Borrower, the
interest rate applicable to ABR Loans (in the case of a Borrowing
denominated in Dollars) or the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the
case of a Borrowing denominated in a Foreign Currency). If such
Lender pays such amount to the Applicable Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in
the case of a Eurocurrency Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, t he applicable
Borrower may elect to convert such Borrowing to a different Type, in the
case of Borrowings denominated in Dollars, or to continue such Borrowing
and, in the case of a Eurocurrency Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The applicable Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall not apply to Swingline Foreign Currency
Borrowings or Swingline Dollar Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the
applicable Borrower shall notify the Applicable Agent of such
election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a
Borrowing of the Type and denominated in the Foreign Currency
resulting from such election to be made on the effective
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date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Interest
Election Request in a form approved by the Applicable Agent and
signed by the applicable Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected
with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; provided that the
resulting Borrowing is required to be a Eurocurrency Borrowing
in the case of a Borrowing denominated in a Foreign Currency;
and
(iv) if the resulting Borrowing is a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period
contemplated by clause (a) of the definition of the term
"Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each Lender to which such
Interest Election Request relates of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing
prior to the end of the Interest
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Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing (unless such Borrowing is
denominated in a Foreign Currency, in which case such Borrowing
shall be continued as a Eurocurrency Borrowing with an Interest
Period of one month's duration commencing on the last day of such
Interest Period). Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the
Administrative Agent, at the written request (including a request
through electronic means) of the Required Lenders, so notifies the
applicable Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing, (ii) unless repaid, each
Eurocurrency Borrowing denominated in Dollars shall be converted to
an ABR Borrowing at the end of the Interest Period applicable
thereto and (iii) unless repaid, each Eurocurrency Borrowing
denominated in a Foreign Currency shall be continued as a
Eurocurrency Borrowing with an Interest Period of one month's
duration.
SECTION 2.08. Termination and Reduction of Commitments. (a)
(i) Unless previously terminated, (A) the Existing U.S. Revolving Facility
Commitments and Existing Global Revolving Facility Commitments shall
terminate on the earlier of (1) the Effective Funding Date (at the
Effective Funding Time on such date) and (2) February 28, 2009 and (B) the
New U.S. Revolving Facility Commitments and New Global Revolving Facility
Commitments shall terminate (1) on January 12, 2005, if the Effective
Funding Time does not occur by 5:00 p.m., New York City time, on such
date, or (2) otherwise, on January 10, 2010.
(ii) Unless previously terminated, the Tranche A Term Loan
Commitments and the Tranche B Term Loan Commitments shall terminate at
5:00 p.m., New York City time, on January 12, 2005.
(b) The U.S. Borrower (on behalf of itself and all
Foreign Subsidiary Borrowers) may at any time terminate, or from
time to time reduce, the Revolving Credit Commitments; provided that
(i) each reduction of the Commitments under any Facility shall be in
an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 (or, if less, the remaining amount of the Revolving
Credit Commitments) and (ii) the U.S. Borrower shall not terminate
or reduce the Revolving Credit Commitments if, after giving effect
to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.11, (x) the Global Revolving Facility Credit Exposure
plus the total Ancillary Facility Commitments
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would exceed the total Global Revolving Facility Commitments or (y)
the U.S. Revolving Facility Credit Exposure would exceed the total
U.S. Revolving Facility Commitments.
(c) The U.S. Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Revolving Credit
Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each
notice delivered by the U.S. Borrower pursuant to this Section shall
be irrevocable; provided that a notice of termination of the
Revolving Credit Commitments delivered by the U.S. Borrower may
state that such notice is conditioned upon the effectiveness of
other credit facilities (including the New Global Revolving Facility
and the New U.S. Revolving Facility), in which case such notice may
be revoked by the U.S. Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments under any
Facility shall be made ratably among the Lenders in accordance with
their respective Commitments under such Facility.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
U.S. Borrower hereby unconditionally promises to pay (i) to the Applicable
Agent for the account of each U.S. Revolving Facility Lender the then
unpaid principal amount of each Existing U.S. Revolving Facility Loan made
by such Lender to the U.S. Borrower on the earlier of (A) the Effective
Funding Date (at the Effective Funding Time on such date) and (B) the
Revolving Credit Maturity Date, (ii) to the Applicable Agent for the
account of each Global Revolving Facility Lender the then unpaid amount of
each Existing Global Revolving Facility Loan made by such Lender to the
U.S. Borrower on the earlier of (A) the Effective Funding Date (at the
Effective Funding Time on such date) and (B) the Revolving Credit Maturity
Date, (iii) to the Applicable Agent for the account of each U.S. Revolving
Facility Lender the then unpaid principal amount of each New U.S.
Revolving Facility Loan made by such Lender to the U.S. Borrower on the
Revolving Credit Maturity Date, (iv) to the Applicable Agent for the
account of each Global Revolving Facility Lender the then unpaid principal
amount of each New Global Revolving Facility Loan made by such Lender to
the U.S. Borrower on the
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Revolving Credit Maturity Date, (v) to the Applicable Agent for the
account of each Lender the then unpaid principal amount of each Term Loan
made by such Lender as provided in Section 2.10 and (vi) to the Swingline
Dollar Lender the then unpaid principal amount of each Swingline Dollar
Loan on the earlier of the Revolving Credit Maturity Date and the first
date after such Swingline Dollar Loan is made that is the 15th or last day
of a calendar month and is at least five Business Days after such
Swingline Dollar Loan is made; provided that on each date that a U.S.
Revolving Facility Borrowing is made by the U.S. Borrower (including on
the Effective Funding Date), the U.S. Borrower shall repay all Swingline
Dollar Loans then outstanding. Each Foreign Subsidiary Borrower hereby
unconditionally promises to pay (i) to the Applicable Agent for the
account of each Existing Global Revolving Facility Lender the then unpaid
principal amount of each Existing Global Revolving Facility Loan made by
such Lender to such Foreign Subsidiary Borrower on the earlier of (A) the
Effective Funding Date (at the Effective Funding Time on such date) and
(B) the Revolving Credit Maturity Date, (ii) to the Applicable Agent for
the account of each Global Revolving Facility Lender the then unpaid
principal amount of each New Global Revolving Facility Loan made by such
Lender to such Foreign Subsidiary Borrower on the Revolving Credit
Maturity Date and (iii) to each Swingline Foreign Currency Lender the then
unpaid principal amount of each Swingline Foreign Currency Loan made by
such Lender on the earlier of the Revolving Credit Maturity Date and the
last day of the Interest Period applicable to such Swingline Foreign
Currency Loan; provided that the Foreign Subsidiary Borrowers shall repay
all Swingline Foreign Currency Loans on the Effective Funding Date.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
each Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(c) Each Applicable Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder,
the Facility and Type thereof and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) any amount received by such Applicable
Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(d) The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section shall be
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prima facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or an
Applicable Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of any Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Applicable Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall
at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note
is a registered note, to such payee and its registered assigns).
SECTION 2.10. Repayment of Term Loans and Revolving Loans. (a)
Subject to adjustment pursuant to paragraph (g) of this Section, the U.S.
Borrower shall repay Tranche A Term Borrowings on each date set forth
below in the aggregate principal amount set forth opposite such date (each
such date being referred to as a "Tranche A Installment Date"):
Date Amount
---- ------
March 31, 2007 $15,000,000.00
June 30, 2007 $15,000,000.00
September 30, 2007 $15,000,000.00
December 31, 2007 $15,000,000.00
March 31, 2008 $40,000,000.00
June 30, 2008 $40,000,000.00
September 30, 2008 $40,000,000.00
December 31, 2008 $40,000,000.00
March 31, 2009 $45,000,000.00
June 30, 2009 $45,000,000.00
September 30, 2009 $45,000,000.00
Tranche A Maturity Date $45,000,000.00
(b) Subject to adjustment pursuant to paragraph (g) of
this Section, the U.S. Borrower shall repay Tranche A-1 Term
Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date (each such date being referred
to as a "Tranche A-1 Installment Date"):
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Date Amount
---- ------
March 31, 2007 $25,200,000.00
June 30, 2007 $38,500,000.00
September 30, 2007 $38,500,000.00
December 31, 2007 $38,500,000.00
March 31, 2008 $38,500,000.00
June 30, 2008 $42,700,000.00
September 30, 2008 $42,700,000.00
December 31, 2008 $42,700,000.00
Tranche A-1 Maturity Date $42,700,000.00
(c) Subject to adjustment pursuant to paragraph (g) of
this Section, the U.S. Borrower shall repay Tranche B Term
Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date (each such date being referred
to as a "Tranche B Installment Date"):
March 31, 2005 $ 1,500,000.00
June 30, 2005 $ 1,500,000.00
September 30, 2005 $ 1,500,000.00
December 31, 2005 $ 1,500,000.00
March 31, 2006 $ 1,500,000.00
June 30, 2006 $ 1,500,000.00
September 30, 2006 $ 1,500,000.00
December 31, 2006 $ 1,500,000.00
March 31, 2007 $ 1,500,000.00
June 30, 2007 $ 1,500,000.00
September 30, 2007 $ 1,500,000.00
December 31, 2007 $ 1,500,000.00
March 31, 2008 $ 1,500,000.00
June 30, 2008 $ 1,500,000.00
September 30, 2008 $ 1,500,000.00
December 31, 2008 $ 1,500,000.00
March 31, 2009 $ 1,500,000.00
June 30, 2009 $ 1,500,000.00
September 30, 2009 $ 1,500,000.00
December 31, 2009 $ 1,500,000.00
March 31, 2010 $ 1,500,000.00
June 30, 2010 $ 1,500,000.00
September 30, 2010 $ 1,500,000.00
December 31, 2010 $ 1,500,000.00
March 31, 2011 $ 1,500,000.00
June 30, 2011 $ 1,500,000.00
September 30, 2011 $ 1,500,000.00
December 31, 2011 $ 1,500,000.00
March 31, 2012 $ 1,500,000.00
Tranche B Maturity Date $556,500,000.00
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(d) Subject to adjustment pursuant to paragraph (g) of
this Section, the U.S. Borrower shall repay Tranche D Term
Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date (each such date being referred
to as a "Tranche D Installment Date"):
Amount of
Amount of Xxxxxxx X-0 Xxxx Xxxxxxx X-0
Borrowings Term Borrowings
Date to be Repaid to be Repaid
---- ------------ ------------
December 31, 2004 $ 2,000,000.00 (euro) 232,500.00
March 31, 2005 $ 2,000,000.00 (euro) 232,500.00
June 30, 2005 $ 2,000,000.00 (euro) 232,500.00
September 30, 2005 $ 2,000,000.00 (euro) 232,500.00
December 31, 2005 $ 2,000,000.00 (euro) 232,500.00
March 31, 2006 $ 2,000,000.00 (euro) 232,500.00
June 30, 2006 $ 2,000,000.00 (euro) 232,500.00
September 30, 2006 $ 2,000,000.00 (euro) 232,500.00
December 31, 2006 $ 2,000,000.00 (euro) 232,500.00
March 31, 2007 $ 2,000,000.00 (euro) 232,500.00
June 30, 2007 $ 2,000,000.00 (euro) 232,500.00
September 30, 2007 $ 2,000,000.00 (euro) 232,500.00
December 31, 2007 $ 2,000,000.00 (euro) 232,500.00
March 31, 2008 $ 2,000,000.00 (euro) 232,500.00
June 30, 2008 $ 2,000,000.00 (euro) 232,500.00
September 30, 2008 $ 2,000,000.00 (euro) 232,500.00
December 31, 2008 $ 2,000,000.00 (euro) 232,500.00
March 31, 2009 $ 2,000,000.00 (euro) 232,500.00
June 30, 2009 $ 2,000,000.00 (euro) 232,500.00
September 30, 2009 $ 2,000,000.00 (euro) 232,500.00
December 31, 2009 $ 2,000,000.00 (euro) 232,500.00
March 31, 2010 $ 2,000,000.00 (euro) 232,500.00
June 30, 2010 $ 1,760,000.00 (euro) 232,500.00
September 30, 2010 $ 374,240,000.00 (euro) 43,477,500.00
December 31, 2010 $ 1,760,000.00 (euro) 232,500.00
Tranche D Maturity Date $ 374,240,000.00 (euro) 43,477,500.00
(e) Subject to adjustment pursuant to paragraph (g) of
this Section, the U.S. Borrower shall repay Tranche E Term
Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date (each such date being referred
to as a "Tranche E Installment Date"):
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Date Amount
---- ------
March 31, 2005 $ 750,000.00
June 30, 2005 $ 750,000.00
September 30, 2005 $ 750,000.00
December 31, 2005 $ 750,000.00
March 31, 2006 $ 750,000.00
June 30, 2006 $ 750,000.00
September 30, 2006 $ 750,000.00
December 31, 2006 $ 750,000.00
March 31, 2007 $ 750,000.00
June 30, 2007 $ 750,000.00
September 30, 2007 $ 750,000.00
December 31, 2007 $ 750,000.00
March 31, 2008 $ 750,000.00
June 30, 2008 $ 750,000.00
September 30, 2008 $ 750,000.00
December 31, 2008 $ 750,000.00
March 31, 2009 $ 750,000.00
June 30, 2009 $ 750,000.00
September 30, 2009 $ 750,000.00
December 31, 2009 $ 750,000.00
March 31, 2010 $ 750,000.00
June 30, 2010 $ 750,000.00
September 30, 2010 $ 750,000.00
Tranche E Maturity Date $282,750,000.00
(f) To the extent not previously paid, (i) all Tranche A
Term Loans shall be due and payable on the Tranche A Maturity Date,
(ii) all Tranche A-1 Term Loans shall be due and payable on the
earlier of (A) the Effective Funding Date (at the Effective Funding
Time on such date) and (B) the Tranche A-1 Maturity Date, (iii) all
Tranche B Term Loans shall be due and payable on the Tranche B
Maturity Date, (iv) all Tranche D Term Loans shall be due and
payable on the earlier of (A) the Effective Funding Date (at the
Effective Funding Time on such date) and (B) the Tranche D Maturity
Date and (v) all Tranche E Term Loans shall be due and payable on
the Tranche E Maturity Date.
(g) Except as set forth in paragraph (h) below:
(i) all Net Proceeds to be applied at any time to prepay
Term Borrowings pursuant to Section 2.11(c) (other than Net Proceeds
from the issuance of Indebtedness permitted by Section 6.01(m))
shall be applied (A) prior to the Effective Funding Time, to the
Tranche A-1 Term Borrowings, Tranche X-0 Xxxx Xxxxxxxxxx, Xxxxxxx
X-0 Term Borrowings and Tranche E Term Borrowings ratably in
accordance with the respective principal amounts outstanding thereof
and
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(B) after the Effective Funding Time, to the Tranche A Term
Borrowings, Tranche B Term Borrowings and Tranche E Term Borrowings
ratably in accordance with the respective principal amounts
outstanding thereof;
(ii) all Net Proceeds from the issuance of Indebtedness
permitted by Section 6.01(m) shall be applied to prepay Term
Borrowings as directed by the U.S. Borrower;
(iii) Excess Cash Flow to be applied at any time to prepay
Term Borrowings pursuant to Section 2.11(d) shall be applied to the
Term Borrowings as directed by the U.S. Borrower; and
(iv) each prepayment of principal of the Term Borrowings
pursuant to Section 2.11(a) shall be applied to the Term Borrowings
as directed by the U.S. Borrower.
Prepayments made pursuant to Section 2.11 shall be applied to each Term
Borrowing, (A) in the case of prepayments made pursuant to Section 2.11(a),
Section 2.11(c) (in the case of prepayments with Net Proceeds from the issuance
of Indebtedness permitted by Section 6.01(m)) or Section 2.11(d) prior to the
Effective Funding Time, to reduce scheduled amortization payments under
paragraphs (b), (d) and (e) above as directed by the U.S. Borrower, (B) in the
case of prepayments made pursuant to Section 2.11(a), Section 2.11(c) (in the
case of prepayments with Net Proceeds from the issuance of Indebtedness
permitted by Section 6.01(m)) or Section 2.11(d) after the Effective Funding
Time, to reduce scheduled amortization payments under paragraphs (a), (c) and
(e) above as directed by the U.S. Borrower, (C) in the case of prepayments made
pursuant to Section 2.11(c) (other than prepayments with Net Proceeds from the
issuance of Indebtedness permitted by Section 6.01(m)) prior to the Effective
Funding Time, (1) to reduce in order of maturity the scheduled amortization
payments under paragraphs (b), (d) and (e) above occurring within the 12-month
period after the date of such payment in respect of such Term Borrowing and (2)
thereafter, to reduce on a pro rata basis (based on the amount of such
amortization payments) the remaining scheduled amortization payments in respect
of such Term Borrowing and (D) in the case of prepayments made pursuant to
Section 2.11(c) (other than prepayments with Net Proceeds from the issuance of
Indebtedness permitted by Section 6.01(m)) after the Effective Funding Time, (1)
to reduce in order of maturity the scheduled amortization payments under
paragraphs (a), (c) and (e) above occurring within the 12-month period after the
date of such payment in respect of such Term Borrowing and (2) thereafter, to
109
reduce on a pro rata basis (based on the amount of such amortization payments)
the remaining scheduled amortization payments in respect of such Term Borrowing.
For purposes of determining any allocation made ratably or on a pro rata basis
contemplated under this paragraph at any time, the amount of any Tranche D-2
Term Loan shall be the Dollar Equivalent of the principal amount thereof,
determined using the Exchange Rate calculated as of the date of such prepayment.
For purposes of determining the amount of any prepayment of Xxxxxxx X-0 Term
Borrowings pursuant to Section 2.11(c) or 2.11(d), the applicable Exchange Rate
on the date such prepayment is to be made shall be used.
(h) Any Lender holding Tranche B Term Loans, Tranche X-0 Xxxx
Xxxxx, Xxxxxxx X-0 Term Loans or Tranche E Term Loans may elect, on not
less than two Business Days' prior written notice to the Administrative
Agent with respect to any mandatory prepayment made pursuant to Section
2.11(c) or 2.11(d), not to have such prepayment applied to such Lender's
Tranche B Term Loans, Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0 Term Loans or
Tranche E Term Loans, as applicable, in which case (i) so long as Tranche
A Term Borrowings or Tranche A-1 Term Borrowings, as applicable, are
outstanding (A) an amount equal to 50% of the amount not so applied shall
be applied to prepay Tranche A Term Loans or Tranche A-1 Term Borrowings,
as applicable, and shall reduce scheduled payments under Section 2.10(a)
or Section 2.10(b), as applicable, after the date of any prepayment on the
same basis as is provided for the respective types of payments pursuant to
Section 2.10(g) and (B) 50% of the amount not so applied shall be retained
by the U.S. Borrower and (ii) once all Tranche A Term Borrowings and
Tranche A-1 Term Borrowings, as applicable, have been repaid in full, the
amount not so applied shall be retained by the U.S. Borrower.
(i) Prior to any repayment of any Borrowing under any Facility
hereunder, the U.S. Borrower or the applicable Foreign Subsidiary
Borrower, as applicable, shall select the Borrowing or Borrowings under
the applicable Facility to be repaid and shall notify the Applicable Agent
by telephone (confirmed by telecopy) of such selection not later than 2:00
p.m., Local Time, (i) in the case of an ABR Borrowing, one Business Day
before the scheduled date of such repayment and (ii) in the case of a
Eurocurrency Borrowing, three Business Days before the scheduled date of
such repayment. Each repayment of a Borrowing (x) in the case of the
Global Revolving Facility, shall be applied to the Global Revolving
Facility Loans
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included in the repaid Borrowing such that each Global Revolving Facility
Lender receives its ratable share of such repayment (based upon the
respective Global Revolving Facility Credit Exposures of the Global
Revolving Facility Lenders at the time of such repayment) and (y) in all
other cases, shall be applied ratably to the Loans included in the repaid
Borrowing. Notwithstanding anything to the contrary in the immediately
preceding sentence, prior to any repayment of a Swingline Dollar Borrowing
or a Swingline Foreign Currency Borrowing hereunder, the U.S. Borrower or
the applicable Foreign Subsidiary Borrower, as applicable, shall select
the Borrowing or Borrowings to be repaid and shall notify the Applicable
Agent by telephone (confirmed by telecopy) of such selection not later
than 1:00 p.m., Local Time, on the scheduled date of such repayment.
Repayments of Borrowings shall be accompanied by accrued interest on the
amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The applicable Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, without premium or penalty (but subject to Section 2.16), in
an aggregate principal amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum or, if less, the amount
outstanding, subject to prior notice in accordance with Section 2.10(i).
(b) In the event and on such occasion that (i) (A) the sum of
(1) the Global Revolving Facility Credit Exposure and (2) the total
Ancillary Commitments exceeds (B) (x) 105% of the total Global Revolving
Facility Commitments solely as a result of currency fluctuations or (y)
the total Global Revolving Facility Commitments (other than as a result of
currency fluctuations), the Borrowers under the Global Revolving Facility
shall prepay Global Revolving Facility Borrowings or Swingline Foreign
Currency Borrowings made to such Borrowers, or reduce total Ancillary
Commitments, in an aggregate amount equal to the amount by which (A) the
sum of (1) the Global Revolving Facility Credit Exposure and (2) the total
Ancillary Commitments exceeds (B) the total Global Revolving Facility
Commitments or (ii) the U.S. Revolving Facility Credit Exposure exceeds
(A) 105% of the total U.S. Revolving Facility Commitments solely as a
result of currency fluctuations or (B) the total U.S. Revolving Facility
Commitments (other than as a result of currency fluctuations), the U.S.
Borrower shall prepay U.S. Revolving Facility Borrowings or Swingline
Dollar Borrowings (or, if no such Borrowings are outstanding,
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deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(j)) in an aggregate amount equal to the amount by
which the U.S. Revolving Facility Credit Exposure exceeds the total U.S.
Revolving Facility Commitments.
(c) The U.S. Borrower shall apply all Net Proceeds promptly
upon receipt thereof to prepay Term Borrowings in accordance with
paragraphs (g) through (i) of Section 2.10.
(d) Not later than 90 days after the end of each Excess Cash
Flow Period, the U.S. Borrower shall calculate Excess Cash Flow for such
Excess Cash Flow Period and shall apply an amount equal to the Required
Percentage of such Excess Cash Flow to prepay Term Borrowings in
accordance with paragraphs (g) through (i) of Section 2.10. Not later than
the date on which the U.S. Borrower is required to deliver financial
statements with respect to the end of each Excess Cash Flow Period under
Section 5.04(a), the U.S. Borrower will deliver to the Administrative
Agent a certificate signed by a Financial Officer of the U.S. Borrower
setting forth the amount, if any, of Excess Cash Flow for such fiscal year
and the calculation thereof in reasonable detail.
(e) All voluntary prepayments of (i) Tranche D Term Loans
effected on or prior to the first anniversary of the Second Restatement
Effective Date or (ii) Tranche B Term Loans effected on or prior to the
first anniversary of the Effective Funding Date with the proceeds of a
substantially concurrent issuance or incurrence of new term loans under
this Agreement, as amended, amended and restated, supplemented, waived or
otherwise modified from time to time (excluding a refinancing of all the
Facilities outstanding under this Agreement in connection with another
transaction not permitted by this Agreement (as determined prior to giving
effect to any amendment or waiver of this Agreement being adopted in
connection with such transaction)), shall be accompanied by a prepayment
fee equal to 1.00% of the aggregate amount of such prepayments if the
Applicable Margin (or similar interest rate spread) applicable to such new
term loans is or, upon the satisfaction of certain conditions, could be
less than the Applicable Margin applicable to the Tranche D Term Loans or
Tranche B Term Loans, as applicable, as of the date hereof.
SECTION 2.12. Fees. (a) The U.S. Borrower (on behalf of itself and
the Foreign Subsidiary Borrowers) agrees to
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pay to each Lender (other than any Defaulting Lender), through the
Administrative Agent, 10 Business Days after the last day of March, June,
September and December in each year, and three Business Days after the date on
which the Revolving Credit Commitments of all the Lenders shall be terminated as
provided herein, a commitment fee (a "Commitment Fee") on the sum of (i) the
daily unused amount of the U.S. Revolving Facility Commitment, (ii) the daily
amount of the Available Unused Commitment and (iii) the daily unused amount of
the Ancillary Commitment of such Lender during the preceding quarter (or other
period commencing with the Closing Date or ending with the date on which the
last of the Commitments of such Lender shall be terminated) at a rate equal to
(A) prior to the Effective Funding Time, (x) 0.75% per annum in respect of each
day on which the Aggregate Revolving Credit Exposure (excluding the Swingline
Exposures) is less than or equal to 50% of the Total Revolving Credit Commitment
or the Leverage Ratio is greater than 3.25 to 1.00, (y) 0.50% per annum in
respect of each day on which the Aggregate Revolving Credit Exposure (excluding
the Swingline Exposures) represents more than 50% of the Total Revolving Credit
Commitment or the Leverage Ratio is less than or equal to 3.25 to 1.00 but
greater than 2.00 to 1.00 and (z) 0.375%, if the Leverage Ratio is less than or
equal to 2.00 to 1.00 (without regard to the Aggregate Revolving Credit
Exposure) and (B) at or after the Effective Funding Time, at the rates set forth
under the caption "Commitment Fee Rate" in the definition of "Applicable
Margin". All Commitment Fees shall be computed on the basis of the actual number
of days elapsed in a year of 360 days. For the purpose of calculating any
Lender's Commitment Fee, the outstanding Swingline Loans during the period for
which such Lender's Commitment Fee is calculated shall be deemed to be zero. The
Commitment Fee due to each Lender shall commence to accrue on the Closing Date
and shall cease to accrue on the date on which the last of the Commitments of
such Lender shall be terminated as provided herein, provided that (1) no
Commitment Fees shall be payable to Lenders in respect of the New Global
Revolving Facility Commitments or the New U.S. Revolving Facility Commitments
for any period prior to the Effective Funding Time, (2) all Commitment Fees
accruing through and including the Effective Funding Date shall be payable on
the Effective Funding Date and (3) all Commitment Fees accruing after the
Effective Funding Date shall be payable in the manner described above.
(b) The U.S. Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) from time to time agrees to pay (i) to each U.S.
Revolving Facility Lender (other than any Defaulting Lender), through the
Administrative Agent, 10 Business Days after the last day of March, June,
September and December of each year and three Business Days
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after the date on which the Revolving Credit Commitments of all the
Lenders shall be terminated as provided herein, a fee (an "L/C
Participation Fee") on such Lender's U.S. Revolving Facility Percentage of
the daily aggregate Revolving L/C Exposure (excluding the portion thereof
attributable to unreimbursed L/C Disbursements), during the preceding
quarter (or shorter period commencing with the Closing Date or ending with
the Revolving Credit Maturity Date or the date on which the U.S. Revolving
Facility Commitments shall be terminated) at the rate per annum equal to
the Applicable Margin for Eurocurrency Revolving Borrowings effective for
each day in such period minus the amount of Issuing Bank Fees (as defined
below) set forth in clause (ii)(x) below and (ii) to each Issuing Bank,
for its own account, (x) three Business Days after the last day of March,
June, September and December of each year and three Business Days after
the date on which the U.S. Revolving Facility Commitments of all the
Lenders shall be terminated as provided herein, a fronting fee in respect
of each Letter of Credit issued by such Issuing Bank for the period from
and including the date of issuance of such Letter of Credit to and
including the termination of such Letter of Credit, computed at a rate
equal to 1/4 of 1% per annum of the daily average stated amount of such
Letter of Credit), plus (y) in connection with the issuance, amendment or
transfer of any such Letter of Credit or any L/C Disbursement thereunder,
such Issuing Bank's customary documentary and processing charges
(collectively, "Issuing Bank Fees"). For the purposes of the foregoing,
(i) all L/C Participation Fees accruing through and including the
Effective Funding Date shall be payable on the Effective Funding Date to
the U.S. Revolving Facility Lenders that have Existing U.S. Revolving
Facility Commitments in the manner described above (and shall be
calculated by reference to the Applicable Margin for Eurocurrency Existing
Revolving Borrowings) and (ii) all L/C Participation Fees accruing after
the Effective Funding Date shall be payable to the U.S. Revolving Facility
Lenders that have New U.S. Revolving Facility Commitments in the manner
described above (and shall be calculated by reference to the Applicable
Margin for Eurocurrency New Revolving Borrowings). All L/C Participation
Fees and Issuing Bank Fees that are payable on a per annum basis shall be
computed on the basis of the actual number of days elapsed in a year of
360 days.
(c) The U.S. Borrower agrees to pay to the Administrative
Agent, for the account of the Administrative Agent, the fees set forth in
the Administrative Agent Fee
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Letter dated as of November 16, 2004, as amended, restated, supplemented
or otherwise modified from time to time, at the times specified therein
(the "Administrative Agent Fees").
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that Issuing Bank Fees shall be
paid directly to the applicable Issuing Banks. Once paid, none of the Fees
shall be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Dollar Loan) shall bear interest at the Alternate Base
Rate plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Margin.
(c) The Swingline Foreign Currency Loans comprising each
Swingline Foreign Currency Borrowing shall bear interest at the Swingline
Foreign Currency Rate plus 1.50% per annum plus the Applicable Margin then
in effect for Eurocurrency Revolving Borrowings.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any Fees or other amount payable by the applicable
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii)
in the case of any other amount (x) payable in Dollars, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section or
(y) payable in a Foreign Currency, the rate set forth in clause (i) of
this sentence; provided that this paragraph (d) shall not apply to any
Event of Default that has been waived by the Lenders pursuant to Section
9.08.
(e) Accrued interest on each Loan shall be payable in arrears
(i) on each Interest Payment Date for such Loan, (ii) in the case of
Existing Global Revolving Facility Loans, upon termination of the Existing
Global Revolving Facility Commitments, (iii) in the case of
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Existing U.S. Revolving Facility Loans, upon termination of the Existing
U.S. Revolving Facility Commitments, (iv) in the case of New Global
Revolving Facility Loans, upon termination of the New Global Revolving
Facility Commitments, (v) in the case of New U.S. Revolving Facility
Loans, upon termination of the New U.S. Revolving Facility Commitments,
(vi) in the case of the Tranche A Term Loans, on the Tranche A Maturity
Date, (vii) in the case of the Tranche A-1 Term Loans, on the earlier of
the Effective Funding Date (at the Effective Funding Time on such date)
and the Tranche A-1 Maturity Date, (viii) in the case of the Tranche B
Term Loans, and on the Tranche B Maturity Date, (ix) in the case of the
Tranche D Term Loans, on the earlier date the Effective Funding Date (at
the Effective Funding Time on such date) and the Tranche D Maturity Date
and (x) in the case of the Tranche E Term Loans, on the Tranche E Maturity
Date; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving Loan
prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in
Sterling and (ii) interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Applicable Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
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(b) the Applicable Agent is advised by the Required Lenders or the
Majority Lenders under the Global Revolving Facility that the Adjusted
LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Applicable Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Applicable Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or
continued as on the last day of the Interest Period applicable thereto (A) if
such Borrowing is denominated in Dollars, an ABR Borrowing or (B) if such
Borrowing is denominated in a Foreign Currency, as a Borrowing bearing interest
at such rate as the Majority Lenders under the Global Revolving Facility and the
applicable Borrower shall agree adequately reflects the costs to the Global
Revolving Facility Lenders of making or maintaining their Loans, and (ii) if any
Borrowing Request requests a Eurocurrency Borrowing in such currency, such
Borrowing shall be made as an ABR Borrowing (if such Borrowing is requested to
be made in Dollars) or shall be made as a Borrowing bearing interest at such
rate as the Majority Lenders under the Global Revolving Facility shall agree
adequately reflects the costs to the Global Revolving Facility Lenders of making
the Loans comprising such Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate or
those for which payment has been requested pursuant to Section 2.21)
or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London
interbank market any other condition affecting this Agreement,
Eurocurrency Loans or Swingline Foreign Currency Loans made by such
Lender or any Letter of Credit or participation therein (except
those for which payment has been requested pursuant to Section
2.21);
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and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Swingline Foreign
Currency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or Issuing Bank hereunder (whether of principal,
interest or otherwise), then the applicable Borrower (in the case of a Loan) or
the U.S. Borrower (in the case of a Letter of Credit) will pay to such Lender or
Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or Issuing Bank, as applicable, for such additional costs
incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or Issuing Bank's capital or
on the capital of such Lender's or Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations
in Letters of Credit held by, such Lender, or the Letters of Credit issued
by such Issuing Bank, to a level below that which such Lender or such
Issuing Bank or such Lender's or such Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of such Lender's
or such Issuing Bank's holding company with respect to capital adequacy),
then from time to time the applicable Borrower (in the case of a Loan) or
the U.S. Borrower (in the case of a Letter of Credit) shall pay to such
Lender or such Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or such Issuing Bank or such
Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or Issuing Bank
or its holding company, as applicable, as specified in paragraph (a) or
(b) of this Section shall be delivered to the applicable Borrower (in the
case of a Loan) or the U.S. Borrower (in the case of a Letter of Credit)
and shall be conclusive absent manifest error. The applicable Borrower (in
the case of a Loan) or the U.S. Borrower (in the case of a Letter of
Credit) shall pay such Lender or Issuing Bank, as applicable, the amount
shown as due on any such certificate within 10 days after receipt thereof.
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(d) Promptly after any Lender or any Issuing Bank has
determined that it will make a request for increased compensation pursuant
to this Section 2.15, such Lender or Issuing Bank shall notify the
applicable Borrower thereof. Failure or delay on the part of any Lender or
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or Issuing Bank's right to demand
such compensation; provided that a Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the
date that such Lender or Issuing Bank, as applicable, notifies such
Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided, further, that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period
of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Swingline Foreign Currency
Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency
Loan on the date specified in any notice delivered pursuant hereto or (d) the
assignment of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by a Borrower pursuant to
Section 2.19, then, in any such event, such Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of
a Eurocurrency Loan or Swingline Foreign Currency Loan, such loss, cost or
expense to any Lender shall be deemed to be the amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued
on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue a
Eurocurrency Loan, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in the
applicable Foreign Currency of a comparable amount and period
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from other banks in the eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to such Borrower and shall be conclusive absent
manifest error. Such Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if a
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) any Agent, Lender or Issuing Bank,
as applicable, 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 pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Agents, each Lender and
each Issuing Bank, within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by such Agent,
Lender or Issuing Bank, as applicable, on or with respect to any payment
by or on account of any obligation of such Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and
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 such Borrower
by a Lender or an Issuing Bank, or by the Administrative Agent on its own
behalf, on behalf of another Agent or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a 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
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such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding Tax under the law of the jurisdiction in which
a Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to such
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by such
Borrower as will permit such payments to be made without withholding or at
a reduced rate.
(f) If an Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as
to which it has been indemnified by a Borrower or with respect to which
such Borrower has paid additional amounts pursuant to this Section 2.17,
it shall pay over such refund to such Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower
under this Section 2.17 with respect to the Taxes or Other Taxes giving
rise to such refund), net of all reasonable out-of-pocket expenses of such
Agent or such Lender and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided
that such Borrower, upon the request of such Agent or such Lender, agrees
to repay the amount paid over to such Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority)
to such Agent or such Lender in the event such Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section
shall not be construed to require any Agent or any Lender to make
available its Tax returns (or any other information relating to its Taxes
which it deems confidential) to the Borrowers or any other person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Unless otherwise specified, each Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of L/C Disbursements, or of amounts payable under Section 2.15,
2.16, 2.17 or 2.21, or otherwise) prior to 1:00 p.m., Local Time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Applicable Agent, be
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deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Applicable
Agent to the applicable account designated to the U.S. Borrower by each
Applicable Agent, except payments to be made directly to the applicable Issuing
Bank or the applicable Lender as expressly provided herein and except
that payments pursuant to Sections 2.15, 2.16, 2.17, 2.21 and 9.05 shall be made
directly to the persons entitled thereto. The Applicable Agent shall distribute
any such payments received by it for the account of any other person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder of (i) principal or interest in respect
of any Loan shall be made in the currency in which such Loan is denominated,
(ii) reimbursement obligations shall, subject to Sections 2.05(e) and 2.05(k),
be made in the currency in which the Letter of Credit in respect of which such
reimbursement obligation exists is denominated or (iii) any other amount due
hereunder or under another Loan Document (other than an Ancillary Facility
Document) shall be made in Dollars. Any payment required to be made by an
Applicable Agent hereunder shall be deemed to have been made by the time
required if such Applicable Agent shall, at or before such time, have taken the
necessary steps to make such payment in accordance with the regulations or
operating procedures of the clearing or settlement system used by such
Applicable Agent to make such payment. Any amount payable by any Applicable
Agent to one or more Lenders in the national currency of a member state of the
European Union that has adopted the Euro as its lawful currency shall be paid in
Euros.
(b) If at any time insufficient funds are received by and available
to the Applicable Agent from any Borrower to pay fully all amounts of
principal, unreimbursed L/C Disbursements, interest and fees then due from
such Borrower hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due from such Borrower hereunder,
ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed L/C Disbursements then due from such
Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed L/C
Disbursements then due to such parties.
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(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of its Term Loans, Revolving Loans or participations in
L/C Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Term Loans,
Revolving Loans and participations in L/C Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Term Loans,
Revolving Loans and participations in L/C Disbursements and Swingline
Loans of other Lenders to the extent necessary 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 Term Loans, Revolving Loans and participations in L/C
Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph (c) shall not be construed to
apply to any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or participations in L/C Disbursements to any assignee or
participant, other than to such Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph (c) shall apply).
Each Borrower 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 Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Applicable
Agent for the account of the Lenders or the applicable Issuing Bank
hereunder that such Borrower will not make such payment, the Applicable
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 the applicable Issuing Bank, as applicable, the amount
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due. In such event, if such Borrower has not in fact made such payment,
then each of the Lenders or the applicable Issuing Bank, as applicable,
severally agrees to repay to the Applicable Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank 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 (i) the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation (in the case of an amount
denominated in Dollars) and (ii) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the case
of an amount denominated in a Foreign Currency).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or
2.18(d), then the Applicable Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by
the Applicable Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15 or 2.21, or if a Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, 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
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15, 2.17 or 2.21, as
applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender in any material respect. Each Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15 or
2.21, or if a Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or is a Defaulting Lender, then such Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to
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assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) such Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and
participations in L/C Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued
interest and fees) or such Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or 2.21 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in
such compensation or payments. Nothing in this Section 2.19 shall be
deemed to prejudice any rights that any Borrower may have against any
Lender that is a Defaulting Lender.
(c) In connection with any proposed waiver, amendment or
modification of this Agreement or any Loan Document pursuant to Section
9.08(b) (a "Proposed Change") requiring the consent of all affected
Lenders, if the consent of the Required Lenders (and, to the extent any
Proposed Change requires the consent of Lenders holding Loans of any
Facility pursuant to clause (vii) or (viii) of Section 9.08(b), the
consent of the Majority Lenders participating in such Facility) to such
Proposed Change is obtained, but the consent to such Proposed Change of
other Lenders whose consent is required is not obtained (any such Lender
whose consent is not obtained as described in this Section 2.19(c) being
referred to as a "Non-Consenting Lender"), then the U.S. Borrower may, at
its sole expense and effort, upon notice to such Non-Consenting Lender and
the Administrative Agent, require such Non-Consenting Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) the U.S. Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall
not unreasonably be withheld, and (ii) such Non-Consenting
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Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in L/C Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the U.S. Borrower
(in the case of all other amounts, including amounts under Sections 2.15,
2.16 and 2.17).
SECTION 2.20. Foreign Subsidiary Loan Parties. On or after the
Closing Date, the U.S. Borrower may designate any Foreign Subsidiary that is a
Wholly Owned Subsidiary as a Foreign Subsidiary Borrower by delivery to the
Administrative Agent of a Foreign Subsidiary Borrower Agreement executed by such
Foreign Subsidiary and the U.S. Borrower. Each such designation shall specify
whether such Foreign Subsidiary shall be entitled (i) to make Borrowings under
the Global Revolving Facility and request Letters of Credit under the U.S.
Revolving Facility and/or (ii) to request the creation of Ancillary Facilities
under Section 2.22, and each such designation shall be subject to the consent of
the Administrative Agent (which consent shall not unreasonably be withheld).
Upon the execution by the U.S. Borrower and delivery to the Administrative Agent
of a Foreign Subsidiary Borrower Termination with respect to any Foreign
Subsidiary Borrower, such Foreign Subsidiary shall cease to be a Foreign
Subsidiary Borrower and a party to this Agreement; provided that no Foreign
Subsidiary Borrower Termination will become effective as to any Foreign
Subsidiary Borrower (other than to terminate such Foreign Subsidiary Borrower's
right to make further Borrowings under this Agreement) at a time when any
principal of or interest on any Loan to such Foreign Subsidiary Borrower or any
Foreign Currency Letter of Credit for the account of such Foreign Subsidiary
Borrower shall be outstanding hereunder or any Ancillary Facility under which
Ancillary Credit Extensions may be made available to such Foreign Subsidiary
Borrower has not been previously terminated. Promptly following receipt of any
Foreign Subsidiary Borrower Agreement or Foreign Subsidiary Borrower
Termination, the Administrative Agent shall send a copy thereof to each
Revolving Credit Lender. The U.S. Borrower shall be entitled to designate any
Foreign Subsidiary that complies with the requirements described in Section
5.10(f) as a Foreign Subsidiary Loan Party.
SECTION 2.21. Additional Reserve Costs. (a) For so long as any
Lender is required to make special deposits with the Bank of England or comply
with reserve assets, liquidity, cash margin or other requirements of the Bank of
England, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's Eurocurrency Loans or Swingline Foreign Currency
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Loans, such Lender shall be entitled to require the applicable Borrower to pay,
contemporaneously with each payment of interest on each of such Loans,
additional interest on such Loan at a rate per annum equal to the Mandatory
Costs Rate calculated in accordance with the formula and in the manner set forth
in Exhibit L hereto.
(b) For so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any
monetary or other authority (including any such requirement imposed by the
European Central Bank or the European System of Central Banks, but
excluding requirements reflected in the Statutory Reserves or the
Mandatory Costs Rate) in respect of any of such Lender's Eurocurrency
Loans Swingline Foreign Currency Loans, such Lender shall be entitled to
require the applicable Borrower to pay, contemporaneously with each
payment of interest on each of such Lender's Loans subject to such
requirements, additional interest on such Loan at a rate per annum
specified by such Lender to be the cost to such Lender of complying with
such requirements in relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the applicable Lender, which
determination shall be conclusive absent manifest error, and notified to
the applicable Borrower (with a copy to the Administrative Agent) at least
five Business Days before each date on which interest is payable for the
applicable Loan, and such additional interest so notified to the
applicable Borrower by such Lender shall be payable to the Administrative
Agent for the account of such Lender on each date on which interest is
payable for such Loan.
SECTION 2.22. Ancillary Facilities. (a) General. If a Foreign
Subsidiary Borrower and a Global Revolving Facility Lender agree, subject to (i)
compliance with the requirements set forth in this Section 2.22 and (ii) such
Foreign Subsidiary Borrower having complied with Sections 2.20 and 4.03, such
Global Revolving Facility Lender shall be permitted to provide an Ancillary
Facility on a bilateral basis to such Foreign Subsidiary Borrower. The total
Ancillary Commitments shall not at any time exceed the Ancillary Commitment
Limit. During the period from and including the Closing Date to and including
the Effective Funding Date (at the Effective Funding Time on such date),
Ancillary Facilities may be provided solely by Global Revolving Facility Lenders
that have Existing Global Revolving Facility Commitments, and during the period
from and including the Effective Funding Date (commencing at the Effective
Funding Time on such date), Ancillary Facilities may be provided solely
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by Global Revolving Facility Lenders that have New Global Revolving Facility
Commitments.
(b) Creation of Ancillary Facilities. To request the creation
of an Ancillary Facility, a Foreign Subsidiary Borrower shall deliver to
the Administrative Agent not later than 10 Business Days prior to the
first date on which such Ancillary Facility is proposed to be made
available:
(i) a notice in writing specifying:
(A) the Foreign Subsidiary Borrower to which extensions
of credit will be made available thereunder;
(B) the first date on which such Ancillary Facility
shall be made available and the expiration date of such
Ancillary Facility (which shall be no later than the Revolving
Credit Maturity Date);
(C) the type of Ancillary Facility being provided;
(D) the identity of the Ancillary Lender; and
(E) the amount of the Ancillary Commitment with respect
to such Ancillary Facility (which shall be expressed in
Dollars and shall not (x) exceed the Available Unused
Commitment of such Ancillary Lender on the first date on which
such Ancillary Facility shall be made available or (y) when
combined with all Ancillary Commitments of the Ancillary
Lenders, exceed the Ancillary Commitment Limit) and the
Foreign Currencies in which such Ancillary Facilities shall be
made available.
(ii) a copy of the Ancillary Facility Document with respect to
such Ancillary Facility (which shall be reasonably acceptable to the
Administrative Agent), together with a certificate of a Responsible
Officer certifying that the terms of such Ancillary Facility satisfy
the requirements set forth in clauses (i)(B) and (i)(E) above and in
paragraph (d) of this Section; and
(iii) such other information that the
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Administrative Agent may reasonably request in connection with such
Ancillary Facility.
The Administrative Agent shall give notice to each Global Revolving Facility
Lender of such matters (provided that any notice with respect to any Ancillary
Facility provided prior to the Effective Funding Time shall be given solely to
the Global Revolving Facility Lenders that have Existing Global Revolving
Facility Commitments and any notice with respect to any Ancillary Facility
provided after the Effective Funding Time shall be given solely to the Global
Revolving Facility Lenders that have New Global Revolving Facility Commitments).
Notwithstanding anything to the contrary, the 10 Business Day notice period
specified in the first sentence of this paragraph shall not apply to any
Restatement Effective Date Ancillary Facility.
(c) Amendment of Ancillary Facilities. To request an amendment
of an Ancillary Facility, the applicable Foreign Subsidiary Borrower shall
deliver to the Administrative Agent, not later than five Business Days
prior to the effective date of such amendment, (i) a notice in writing (A)
identifying the Ancillary Facility to be amended, (B) the effective date
of such Amendment and (C) the documentation relating to such proposed
amendment (which shall be reasonably satisfactory to the Administrative
Agent) and (ii) a certificate of a Responsible Officer certifying that the
terms of such Ancillary Facility, after giving effect to such proposed
amendment, satisfy the requirements set forth in clauses (i)(B) and (i)(E)
of paragraph (b) of this Section and in paragraph (d) of this Section. The
Administrative Agent shall give notice to each Global Revolving Facility
Lender of such matters (provided that any notice with respect to any
Ancillary Facility made available prior to the Effective Funding Time
shall be given solely to the Global Revolving Facility Lenders that have
Existing Global Revolving Facility Commitments and any notice with respect
to any Ancillary Facility made available after the Effective Funding Time
shall be given solely to the Global Revolving Facility Lenders that have
New Global Revolving Facility Commitments).
(d) Terms of Ancillary Facility. Each Ancillary Facility shall
contain terms and conditions acceptable to the applicable Ancillary Lender
and the applicable Foreign Subsidiary Borrower thereunder; provided that
such terms shall at all times: (i) be based upon normal commercial terms
at the time of the creation of such Ancillary Facility pursuant to
paragraph (b) of this Section; (ii) permit extensions of credit thereunder
to be made only to
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such Foreign Subsidiary Borrower; (iii) provide that the Ancillary
Commitment of the applicable Ancillary Lender under such Ancillary
Facility shall not exceed such Ancillary Lender's Available Unused
Commitment and that, in the event and on such occasion that such Ancillary
Commitment exceeds such Available Unused Commitment, such Ancillary
Commitment shall be automatically reduced by the amount of such excess;
(iv) provide that the Ancillary Commitment under such Ancillary Facility
be canceled, and that all extensions of credit under such Ancillary
Facility be repaid, not later than the Revolving Credit Maturity Date; (v)
provide that the conditions set forth in Section 4.02 shall be conditions
to each extension of credit under such Ancillary Facility; and (vi) not
provide for the payment of commitment fees in respect of the Ancillary
Commitment for such Ancillary Facility.
(e) Termination and Demand for Repayment.
(i) Any Ancillary Facility shall be permitted to be terminated
by the applicable Ancillary Lender in accordance with the terms of
such Ancillary Facility and, upon the effective date of such
termination (an "Ancillary Facility Termination Date"), all
Ancillary Credit Extensions under such Ancillary Facility shall be
refinanced with the proceeds of an Ancillary Replacement Borrowing
as set forth below, unless the Loans shall have been accelerated
pursuant to Section 7.01.
(ii) Notwithstanding anything to the contrary set forth in the
Ancillary Facility Document relating to the Ancillary Facility to be
terminated, the Ancillary Lender seeking to terminate an Ancillary
Facility shall deliver to the Applicable Agent, with a copy to the
applicable Foreign Subsidiary Borrower, a written notice of
termination (a "Notice of Termination") not later than five Business
Days prior to the Ancillary Facility Termination Date specified in
such Notice of Termination for such Ancillary Facility. Each such
Notice of Termination shall specify:
(A) the names of the applicable Foreign Subsidiary
Borrower and Ancillary Lender;
(B) the aggregate amount of Ancillary Credit Extensions
under the applicable Ancillary Facility (which shall not
exceed the Ancillary Commitment in respect of such Ancillary
Facility)
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(the "Ancillary Facility Repayment Amount"); and
(C) the applicable Ancillary Facility Termination Date.
(iii) Following receipt of a Notice of Termination with
respect to an Ancillary Facility, the applicable Foreign Subsidiary
Borrower shall deliver to the Applicable Agent a written notice not
later than 2:00 p.m., Local Time, three Business Days prior to the
Ancillary Facility Termination Date with respect to such Ancillary
Facility, which notice shall specify the following information
relating to an Ancillary Replacement Borrowing:
(A) the name of the Eligible Borrower that shall make
such Ancillary Replacement Borrowing;
(B) the currency in which such Ancillary Replacement
Borrowing is to be denominated (which shall be Dollars, Euros
or Sterling);
(C) the initial Interest Period to be applicable to such
Ancillary Replacement Borrowing, which shall be a period
contemplated by clause (a) of the definition of the term
"Interest Period"; and
(D) the location and number of the applicable Eligible
Borrower's account to which funds are to be disbursed.
(iv) On the Ancillary Facility Termination Date for an
Ancillary Facility, the Global Revolving Facility Lenders shall make
Loans composing an Ancillary Replacement Borrowing in an aggregate
principal amount equal to the Ancillary Facility Repayment amount in
accordance with Sections 2.02 and 2.06.
(v) The Eligible Borrower to which such Ancillary Replacement
Borrowing is made shall use the proceeds of such Ancillary
Replacement Borrowing solely (i) to repay to the applicable
Ancillary Lender all Funded Ancillary Credit Extensions under such
terminated Ancillary Facility and (ii) to deposit cash collateral
with such Ancillary Lender in respect of all Unfunded Ancillary
Credit Extensions under such terminated Ancillary Facility. Each
deposit of cash collateral pursuant to this paragraph shall be held
by
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the applicable Global Revolving Facility Lender as collateral for
the payment and performance of the obligations of the applicable
Foreign Subsidiary Borrower in respect of Unfunded Ancillary Credit
Extensions under such terminated Ancillary Facility. Such Global
Revolving Facility Lender shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account;
provided that, on the CAM Exchange Date, the Administrative Agent
shall assume exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall
be made at the option and sole discretion of (i) for so long as an
Event of Default shall be continuing, the applicable Global
Revolving Facility Lender and (ii) at any other time, the applicable
Eligible Borrower, in each case, in Permitted Investments and at the
risk and expense of such Eligible Borrower, such deposits shall not
bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be
applied by the applicable Global Revolving Facility Lender to offset
amounts payable in respect of Unfunded Ancillary Credit Extensions
made under such terminated Ancillary Facility. In the event that
after the Ancillary Facility Termination Date for an Ancillary
Facility but prior to the CAM Exchange Date, an Unfunded Ancillary
Credit Extension made under such terminated Ancillary Facility shall
expire without requiring payment, the portion of the cash collateral
deposited hereunder with respect to such expired Unfunded Ancillary
Credit Extension shall be distributed to the applicable Eligible
Borrower.
(f) Cancelation by Foreign Subsidiary Borrower. The
Foreign Subsidiary Borrower to which an Ancillary Facility has been made
available shall be permitted at any time to request the cancelation of all or a
portion of such Ancillary Facility by delivery of a notice in writing to the
Administrative Agent and the applicable Ancillary Lender, specifying the
Ancillary Facility to be canceled and the proposed cancelation date. Such notice
shall be delivered not less than five Business Days prior to the proposed
cancelation date. Such cancelation shall be effective as of the proposed
cancelation date unless the Ancillary Facility Exposure under such Ancillary
Facility has not been reduced to zero as of such date.
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(g) Additional Information. Each Ancillary Lender shall
report in writing to the Administrative Agent on the first
Business Day of each fiscal quarter (i) the Ancillary Facility
Exposure for each day during the preceding fiscal quarter for
each Ancillary Facility under which it is an Ancillary Lender
and (ii) the portion (expressed in Dollars) of its Ancillary
Commitment that was unused on each day during the preceding
fiscal quarter for each Ancillary Facility under which it is
an Ancillary Lender. In addition, each Foreign Subsidiary
Borrower to which an Ancillary Facility has been made
available and each Ancillary Lender shall, upon request by the
Administrative Agent, promptly supply the Administrative Agent
with any information relating to the operation of such
Ancillary Facility (including the Ancillary Facility Exposure)
as the Administrative Agent may reasonably request.
(h) Conflict with Loan Documents. In the event of any
conflict between the terms of an Ancillary Facility Document
and any other Loan Document (other than an Ancillary Facility
Document), the terms of such other Loan Document shall govern.
(i) Termination and Expiration of Ancillary Commitments.
On each date on which an Ancillary Facility expires, is
terminated or is canceled (in whole or in part), the Available
Unused Commitment of the Ancillary Lender under such Ancillary
Facility shall be increased by an amount equal to the portion
of such Ancillary Facility that has expired or been canceled,
unless the Global Revolving Facility Commitments shall have
been previously terminated.
(j) Effect of Restatement Transactions on Ancillary
Facilities. With respect to each Ancillary Facility that is
outstanding at the Effective Funding Time:
(i) to the extent such Ancillary Facility was provided
by a Global Revolving Facility Lender that will have a New
Global Revolving Facility Commitment, such Ancillary
Facility shall remain outstanding after the Effective
Funding Time as an Ancillary Facility under this Agreement;
provided that if, at the Effective Funding Time, the
Ancillary Commitment of such Lender with respect to such
Ancillary Facility exceeds the New Available Unused
Commitment of such Lender, such Ancillary Facility shall be
automatically reduced by the amount of such excess (with
any
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required repayment of Ancillary Credit Extensions as a result of
such reduction being financed with the proceeds of an Ancillary
Replacement Borrowing under the New Global Revolving Credit Facility
at the Effective Funding Time); and
(ii) to the extent such Ancillary Facility was provided by a
Global Revolving Facility Lender that will not have a New Global
Revolving Facility Commitment, such Ancillary Facility shall be
automatically terminated (with any required repayment of Ancillary
Credit Extensions as a result of such termination being financed
with the proceeds of a new Ancillary Facility provided by a New
Global Revolving Facility Lender pursuant to this Section 2.22 or
the proceeds of an Ancillary Replacement Borrowing under the New
Global Revolving Credit Facility at the Effective Funding Time).
(k) Increase in Ancillary Commitments at Effective Funding
Time. With respect to any Ancillary Facility outstanding at the Effective
Funding Time that will remain outstanding after the Effective Funding Time
pursuant to clause (j)(i) above, the applicable New Global Revolving
Facility Lender and Foreign Subsidiary Borrower may elect to increase the
Ancillary Commitment with respect to such Ancillary Facility; provided
that, after giving effect thereto, (i) the total Ancillary Commitments do
not exceed the Ancillary Commitment Limit and (ii) the Ancillary
Commitment of such New Global Revolving Facility Lender does not exceed
the New Available Unused Commitment of such New Global Revolving Facility
Lender. Any increase in the Ancillary Commitment with respect to any
Ancillary Facility shall be considered an amendment of such Ancillary
Facility subject to the terms of paragraph (c) above.
SECTION 2.23. Incremental Extensions of Credit. At any time after
January 10, 2005, subject to the terms and conditions set forth herein, the U.S.
Borrower may from time to time, by notice to the Administrative Agent (whereupon
the Administrative Agent shall promptly deliver a copy of such notice to each of
the Lenders), request to add additional term loans (the "Incremental Extensions
of Credit") in minimum principal amounts of $50,000,000; provided that
immediately prior to and after giving effect to any Incremental Facility
Amendment (as defined below), (a) no Default or Event of Default has occurred
and is continuing or shall result therefrom and (b) on a Pro Forma Basis, as of
the last day of the most recently ended fiscal quarter of the U.S. Borrower for
which financial statements have been delivered pursuant to Section 5.04, the
U.S. Borrower and
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the Subsidiaries shall be in compliance with the covenants contained in Section
6.11 and 6.12. The Incremental Extensions of Credit (a) shall be in an aggregate
principal amount not exceeding $300,000,000, (b) shall rank pari passu or junior
in right of payment and right of security in respect of the Collateral with the
Tranche B Term Loans and (c) other than amortization, pricing and maturity date,
shall have terms substantially similar to those with respect to the Tranche B
Term Loans as in effect immediately prior to the effectiveness of the applicable
Incremental Facility Amendment; provided that (i) if the Applicable Margin
(which, for such purposes only, shall be deemed to include all upfront or
similar fees or original issue discount payable to all Lenders providing such
Incremental Extensions of Credit) relating to the Incremental Extensions of
Credit exceeds the Applicable Margin (which, for such purposes only, shall be
deemed to include all upfront or similar fees or original issue discount payable
to all Tranche B Lenders) relating to the Tranche B Term Loans by more than
0.25%, the Applicable Margin relating to the Tranche B Term Loans shall be
adjusted to be equal to the Applicable Margin (which, for such purposes only,
shall be deemed to include all upfront or similar fees or original issue
discount payable to all Lenders providing such Incremental Extensions of Credit)
relating to the applicable Incremental Extensions of Credit minus 0.25%, (ii)
the Incremental Extensions of Credit shall not have a final maturity date
earlier than the Tranche B Maturity Date and (iii) the Incremental Extensions of
Credit shall not have a weighted average life that is shorter than that of the
then-remaining weighted average life of the Tranche B Term Loans. Any Person
that elects to extend Incremental Extensions of Credit shall be reasonably
satisfactory to the U.S. Borrower and the Administrative Agent (any such Person
being called an "Additional Lender") and shall become a Lender under this
Agreement, pursuant to an amendment (an "Incremental Facility Amendment") to
this Agreement, giving effect to the modifications permitted by this Section
2.23, and, as appropriate, the other Loan Documents, executed by the U.S.
Borrower, each Additional Lender and the Administrative Agent. Commitments in
respect of Incremental Extensions of Credit shall be Commitments under this
Agreement. An Incremental Facility Amendment may, without the consent of any
other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent, to effect the provisions of this Section 2.23. The
effectiveness of any Incremental Facility Amendment shall be subject to the
satisfaction on the date thereof (each, an "Incremental Facility Closing Date")
of each of the conditions set forth in Section 4.02 (it being understood that
all references to "the date of such Borrowing" in such Section 4.02 shall be
deemed to refer to the Incremental Facility
135
Closing Date"). The proceeds of the Incremental Extensions of Credit shall be
used for general corporate purposes of the Borrower and the Subsidiaries.
ARTICLE III
Representations and Warranties
Each of Holdings, Intermediate Holdings and the Borrowers represents
and warrants to each of the Lenders that:
SECTION 3.01. Organization; Powers. Except as set forth on Schedule
3.01, each of Holdings, Intermediate Holdings, the U.S. Borrower and each of the
Subsidiaries (a) is a partnership, limited liability company or corporation duly
organized, validly existing and in good standing (or, if applicable in a foreign
jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of
organization outside the United States) under the laws of the jurisdiction of
its organization, (b) has all requisite power and authority to own its property
and assets and to carry on its business as now conducted, (c) is qualified to do
business in each jurisdiction where such qualification is required, except where
the failure so to qualify could not reasonably be expected to have a Material
Adverse Effect, and (d) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of each Borrower, to borrow and otherwise obtain credit
hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by Holdings, Intermediate Holdings, the U.S. Borrower, and each of the
Subsidiaries of each of the Loan Documents to which it is a party, and the
borrowings hereunder and the transactions forming a part of the Restatement
Transactions (a) have been duly authorized by all corporate, stockholder,
limited liability company or partnership action required to be obtained by
Holdings, Intermediate Holdings, the U.S. Borrower and such Subsidiaries and (b)
will not (i) violate (A) any provision of law, statute, rule or regulation, or
of the certificate or articles of incorporation or other constitutive documents
or by-laws of Holdings, Intermediate Holdings, the U.S. Borrower or any such
Subsidiary, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to
which Holdings, Intermediate Holdings, the U.S. Borrower or any such Subsidiary
is a party or by which any of them or any of their property is or may be bound,
(ii) be in conflict with,
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result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, give rise to a right of or result in any cancelation or
acceleration of any right or obligation (including any payment) or to a loss of
a material benefit under any such indenture, certificate of designation for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this Section
3.02, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of any
Lien upon or with respect to any property or assets now owned or hereafter
acquired by Holdings, Intermediate Holdings, the U.S. Borrower or any such
Subsidiary, other than the Liens created by the Loan Documents.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by Holdings, Intermediate Holdings and each Borrower and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party that is party thereto will constitute, a legal, valid and binding
obligation of such Loan Party enforceable against each such Loan Party in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair dealing.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Restatement
Transactions, except for (a) the filing of Uniform Commercial Code financing
statements, (b) recordation of amendments to the Mortgages, (c) such as have
been made or obtained and are in full force and effect, (d) such actions,
consents and approvals the failure to be obtained or made which could not
reasonably be expected to have a Material Adverse Effect and (e) filings or
other actions listed on Schedule 3.04.
SECTION 3.05. Financial Statements. The U.S. Borrower has heretofore
furnished to the Lenders (i) combined balance sheets and combined statements of
income, cash flows and owners' equity of TRW Automotive Inc. and subsidiaries as
of and for the fiscal years ended December 31, 2001, December 31, 2002 and
December 31, 2003, audited by and accompanied by the opinion of Ernst & Young
LLP, independent public accountants, and (ii) a consolidated balance sheet and
consolidated statements of income of Holdings and subsidiaries as of and for the
nine-month period
137
ended September 24, 2004, reviewed by Ernst & Young LLP pursuant to Statement of
Auditing Standards No. 100. Such financial statements present fairly, in all
material respects, the financial position and results of operations of Holdings
and subsidiaries as of such dates and for such periods. None of Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries has or shall
have as of the Restatement Effective Date any Guarantee, contingent liability or
liability for Taxes, or any long-term lease or unusual forward or long-term
commitment, including any interest rate or foreign currency hedging transaction,
that individually is material and is not reflected in the foregoing statements
or the notes thereto, other than pursuant to the Loan Documents. Such financial
statements were prepared in accordance with GAAP (subject to normal year-end
audit adjustments and the absence of footnotes in the case of clause (ii)
above).
SECTION 3.06. No Material Adverse Change or Material Adverse Effect.
Since December 31, 2003, there has been no material adverse change (or
occurrence that is reasonably likely to have a material adverse change) in the
business, operations, properties, assets or financial condition of the U.S.
Borrower and the Subsidiaries, taken as a whole.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each
of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries has
good and marketable title to, or valid leasehold interests in, or easements or
other limited property interests in, all its properties and assets (including
all Mortgaged Properties), except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties and assets for their intended purposes and except where
the failure to have such title could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. All such properties
and assets are free and clear of Liens, other than Liens expressly permitted by
Section 6.02 or arising by operation of law.
(b) Each of Holdings, Intermediate Holdings, the U.S. Borrower
and the Subsidiaries has complied with all obligations under all leases to
which it is a party, except where the failure to comply would not have a
Material Adverse Effect, and all such leases are in full force and effect,
except leases in respect of which the failure to be in full force and
effect could not reasonably be expected to have a Material Adverse Effect.
Each of Holdings, Intermediate Holdings, the U.S. Borrower and each of the
Subsidiaries enjoys peaceful and undisturbed possession under all such
leases, other than leases in respect of
138
which the failure to enjoy peaceful and undisturbed possession could not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(c) Each of Holdings, Intermediate Holdings, the U.S. Borrower
and the Subsidiaries owns or possesses, or could obtain ownership or
possession of, on terms not materially adverse to it, all patents,
trademarks, service marks, trade names, copyrights, licenses and rights
with respect thereto necessary for the present conduct of its business,
without any known conflict with the rights of others, and free from any
burdensome restrictions, except where such conflicts and restrictions
could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(d) As of the Restatement Effective Date, none of Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries has received
any notice of any pending or contemplated condemnation proceeding
affecting any of the Mortgaged Properties or any sale or disposition
thereof in lieu of condemnation that remains unresolved as of the
Restatement Effective Date.
(e) None of Holdings, Intermediate Holdings, the U.S. Borrower
and the Subsidiaries is obligated on the Restatement Effective Date under
any right of first refusal, option or other contractual right to sell,
assign or otherwise dispose of any Mortgaged Property or any interest
therein, except as permitted under Section 6.02 or 6.05.
SECTION 3.08. Subsidiaries. (a) As of the Restatement Effective
Date, and after giving effect to the Restatement Transactions, Holdings will
have no subsidiaries other than Intermediate Holdings, the U.S. Borrower and the
Subsidiaries.
(b) Schedule 3.08(b) sets forth as of the Restatement
Effective Date the name and jurisdiction of incorporation, formation or
organization of each Subsidiary and, as to each such Subsidiary, the
percentage of each class of Equity Interests owned by the U.S. Borrower or
by any such Subsidiary.
(c) As of the Restatement Effective Date, there are no
outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees
or directors and directors'
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qualifying shares) of any nature relating to any Equity Interests of
Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries, except under the Loan Documents, rights of employees to
purchase Equity Interests of Holdings in connection with the Transactions
or as set forth on Schedule 3.08(c).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 3.09, there are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority or in arbitration now pending
or, to the knowledge of Holdings or the U.S. Borrower, threatened in writing
against or affecting Holdings, Intermediate Holdings, the U.S. Borrower or any
of the Subsidiaries or any business, property or rights of any such person (i)
that involve any Loan Document or the Transactions or (ii) as to which an
adverse determination is reasonably probable and which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
materially adversely affect the Transactions.
(b) None of Holdings, Intermediate Holdings, the U.S.
Borrower, the Subsidiaries and their respective properties or assets is in
violation of (nor will the continued operation of their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, Environmental Law, ordinance,
code or approval or any building permit) or any restriction of record or
agreement affecting any Mortgaged Property, or is in default with respect
to any judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) None of Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose, or (ii) for any purpose
that entails a violation of, or that is inconsistent with, the provisions
of the Regulations of the Board, including Regulation U or Regulation X.
140
SECTION 3.11. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.12. Use of Proceeds. The Borrowers will use the proceeds
of the Tranche A Term Loans, the Tranche B Term Loans and the New Revolving
Loans made at the Effective Funding Time to repay all obligations outstanding at
the Effective Funding Time in respect of the Tranche A-1 Term Loans, the Tranche
D-1 Term Loans, the Tranche D-2 Term Loans, the Existing Revolving Loans and the
Swingline Loans, and to pay fees and expenses in connection with the Restatement
Transactions. The Borrowers will use the proceeds of the Revolving Loans (other
than the New Revolving Loans made at the Effective Funding Time) and Swingline
Loans and will request the issuance of Letters of Credit solely for general
corporate purposes.
SECTION 3.13. Tax Returns. Each of Holdings, Intermediate Holdings,
the U.S. Borrower and the Subsidiaries has timely filed or caused to be timely
filed all federal, and all material state and local, Tax returns (and, in the
case of a Foreign Subsidiary, except as provided in Schedule 3.13, all material
Tax returns required to be filed in the jurisdiction in which such Foreign
Subsidiary is organized) required to have been filed by it and has paid or
caused to be paid all material Taxes shown thereon to be due and payable by it
and all material assessments, except Taxes or assessments that are being
contested in good faith by appropriate proceedings in accordance with Section
5.03 and for which Holdings, Intermediate Holdings, the U.S. Borrower or a
Subsidiary has set aside on its books adequate reserves. Each of Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries has paid in full
or made adequate provision (in accordance with GAAP) for the payment of all
Taxes due with respect to all periods ending on or before the Restatement
Effective Date, which Taxes, if not paid or adequately provided for, could
reasonably be expected to have a Material Adverse Effect. Except, in the case of
clauses (b) and (c), as set forth on Schedule 3.13, as of the Restatement
Effective Date, with respect to each of Holdings, Intermediate Holdings, the
U.S. Borrower and the Subsidiaries, (a) no material claims are being asserted in
writing with respect to any Taxes, (b) no presently effective waivers or
extensions of statutes of limitation with respect to Taxes have been given or
requested, (c) no Tax returns are being examined by, and no written notification
of intention to examine has been received from, the Internal Revenue Service or,
with respect to any material
141
potential Tax liability, any other Taxing authority and (d) except as are being
contested in good faith by appropriate proceedings in accordance with Section
5.03 and for which Holdings, Intermediate Holdings, the U.S. Borrower or a
Subsidiary has set aside on its books adequate reserves, no currently pending
issues have been raised in writing by the Internal Revenue Service or, with
respect to any material potential Tax liability, any other taxing authority.
SECTION 3.14. No Material Misstatements. (a) All written information
(other than the Projections, estimates and information of a general economic
nature) (the "Information") concerning Holdings, Intermediate Holdings, the U.S.
Borrower, the Subsidiaries, the Restatement Transactions and any other
transactions contemplated hereby included in the Lenders' Presentation or
otherwise prepared by or on behalf of the foregoing or their representatives and
made available to any Lenders or the Administrative Agent in connection with the
Restatement Transactions or the other transactions contemplated hereby, when
taken as a whole, were true and correct in all material respects as of the date
thereof, as of the date such Information was first furnished to the Lenders and
as of the Restatement Effective Date and did not contain any untrue statement of
a material fact as of any such date or omit to state a material fact necessary
in order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements were made.
(b) The Projections and estimates prepared by or on behalf of
the U.S. Borrower or any of its representatives and that have been made
available to any Lenders or the Administrative Agent in connection with
the Restatement Transactions or the other transactions contemplated hereby
(i) have been prepared in good faith based upon assumptions believed by
the U.S. Borrower to be reasonable as of the date thereof, as of the date
such Projections and estimates were first furnished to the Lenders and as
of the Restatement Effective Date, and (ii) as of the Restatement
Effective Date, have not been modified in any material respect by the U.S.
Borrower.
SECTION 3.15. Employee Benefit Plans. (a) Each of the Borrowers,
Holdings, Intermediate Holdings, the Subsidiaries and the ERISA Affiliates is in
compliance with the applicable provisions of ERISA and the provisions of the
Code relating to Plans and the regulations and published interpretations
thereunder and any similar applicable non-U.S. law, except for such
noncompliance that could not reasonably be expected to have a Material Adverse
Effect. No Reportable Event has occurred during the past five years as to which
the Borrowers, Holdings,
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Intermediate Holdings, any Subsidiary or any ERISA Affiliate was required to
file a report with the PBGC, other than reports that have been filed and reports
the failure of which to file could not reasonably be expected to have a Material
Adverse Effect. As of the Restatement Effective Date, the excess of the present
value of all benefit liabilities under each Plan of the Borrowers, Holdings,
Intermediate Holdings, the Subsidiaries and the ERISA Affiliates (based on those
assumptions used to fund such Plan), as of the last annual valuation date
applicable thereto for which a valuation is available, over the value of the
assets of such Plan could not reasonably be expected to have a Material Adverse
Effect, and the excess of the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) as of
the last annual valuation dates applicable thereto for which valuations are
available, over the value of the assets of all such underfunded Plans could not
reasonably be expected to have a Material Adverse Effect. None of the Borrowers,
Holdings, Intermediate Holdings, the Subsidiaries and the ERISA Affiliates has
incurred or could reasonably be expected to incur any Withdrawal Liability that
could reasonably be expected to have a Material Adverse Effect. None of the
Borrowers, Holdings, Intermediate Holdings, the Subsidiaries and the ERISA
Affiliates has received any written notification that any Multiemployer Plan is
in reorganization or has been terminated within the meaning of Title IV of
ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be
in reorganization or to be terminated, where such reorganization or termination
has had or could reasonably be expected to have, through increases in the
contributions required to be made to such Plan or otherwise, a Material Adverse
Effect.
(b) Each of Holdings, Intermediate Holdings, the U.S. Borrower
and the Subsidiaries is in compliance (i) with all applicable provisions
of law and all applicable regulations and published interpretations
thereunder with respect to any employee pension benefit plan or other
employee benefit plan governed by the laws of a jurisdiction other than
the United States and (ii) with the terms of any such plan, except, in
each case, for such noncompliance that could not reasonably be expected to
have a Material Adverse Effect.
SECTION 3.16. Environmental Matters. Except for the matters that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, neither the U.S. Borrower nor any of its Subsidiaries
(i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) is subject to, or
143
responsible for, any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any facts or
circumstances that would reasonably be expected to result in any Environmental
Liability.
SECTION 3.17. Security Documents. (a) The U.S. Collateral Agreement
is effective to create in favor of the Collateral Agent (for the benefit of the
Secured Parties) a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Collateral described in the U.S. Collateral Agreement, when certificates or
promissory notes, as applicable, representing such Pledged Collateral are
delivered to the Collateral Agent, and in the case of the other Collateral
described in the U.S. Collateral Agreement (other than the Intellectual Property
(as defined in the U.S. Collateral Agreement)), when financing statements and
other filings specified on Schedule 3 of the U.S. Perfection Certificate in
appropriate form are filed in the offices specified on Schedule 5 of the U.S.
Perfection Certificate, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and, subject to
Section 9-315 of the New York Uniform Commercial Code, the proceeds thereof, as
security for the Obligations to the extent perfection can be obtained by filing
Uniform Commercial Code financing statements, in each case prior and superior in
right to any other person (except, in the case of Collateral other than Pledged
Collateral, Liens expressly permitted by Section 6.02(a) and Liens having
priority by operation of law).
(b) When the U.S. Collateral Agreement or a summary thereof is
properly filed in the United States Patent and Trademark Office and the
United States Copyright Office, and, with respect to Collateral in which a
security interest cannot be perfected by such filings, upon the proper
filing of the financing statements referred to in paragraph (a) above, the
Collateral Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the Intellectual Property, in
each case prior and superior in right to any other Person (it being
understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary
to perfect a lien on registered trademarks and patents, trademark and
patent applications and registered copyrights acquired by the grantors
after the Restatement Effective Date).
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(c) Each Foreign Pledge Agreement and each Foreign Security
Agreement is effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the
case of the Pledged Collateral described in a Foreign Pledge Agreement,
when certificates or promissory notes, as applicable, representing such
Pledged Collateral are delivered to the Collateral Agent, and, in the case
of the Collateral described in a Foreign Security Agreement, when filings
are made in the appropriate offices in each relevant jurisdiction and the
other actions, if any, specified on such Schedule are taken, the
Collateral Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof,
as security for the Obligations described therein, in each case prior and
superior in right to any other person (except, in the case of Collateral
other than Pledged Collateral, Liens expressly permitted by Section
6.02(a) and Liens having priority by operation of law).
(d) The Mortgages entered into after the Restatement Effective
Date pursuant to Section 5.10 shall be effective to create in favor of the
Collateral Agent (for the benefit of the Secured Parties) a legal, valid
and enforceable Lien on all of the Loan Parties' right, title and interest
in and to the Mortgaged Property thereunder and the proceeds thereof, and
when such Mortgages are filed or recorded in the proper real estate filing
or recording offices, the Collateral Agent (for the benefit of the Secured
Parties) shall have a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Mortgaged
Property and, to the extent applicable, subject to Section 9-315 of the
Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to the
rights of a Person pursuant to Liens expressly permitted by Section
6.02(a) and Liens having priority by operation of law.
SECTION 3.18. Location of Real Property and Leased Premises. (a)
Schedule 2B to the U.S. Perfection Certificate and each Foreign Perfection
Certificate lists completely and correctly as of the Restatement Effective Date
all material real property owned by Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiary Loan Parties and the addresses thereof. As of the
Restatement Effective Date, Holdings,
145
Intermediate Holdings, the U.S. Borrower and the Subsidiaries own in fee all the
real property set forth as being owned by them on such Schedules.
(b) Schedule 2B to the U.S. Perfection Certificate lists
completely and correctly as of the Restatement Effective Date all material
real property leased by Holdings, Intermediate Holdings, the U.S. Borrower
and the Domestic Subsidiary Loan Parties and the addresses thereof. As of
the Restatement Effective Date, Holdings, Intermediate Holdings, the U.S.
Borrower and the Domestic Subsidiary Loan Parties have valid leases in all
the real property set forth as being leased by them on such Schedules.
SECTION 3.19. Solvency. (a) Immediately after giving effect to the
Restatement Transactions (i) the fair value of the assets of each Borrower
(individually) and the U.S. Borrower and the Subsidiaries on a consolidated
basis, at a fair valuation, will exceed the debts and liabilities, direct,
subordinated, contingent or otherwise, of each Borrower (individually) and the
U.S. Borrower and the Subsidiaries on a consolidated basis, respectively; (ii)
the present fair saleable value of the property of each Borrower (individually)
and the U.S. Borrower and the Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
each Borrower (individually) and the U.S. Borrower and the Subsidiaries on a
consolidated basis, respectively, on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) each Borrower (individually) and the U.S.
Borrower and the Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, direct, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) each Borrower
(individually) and the U.S. Borrower and the Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are now conducted and
are proposed to be conducted following the Restatement Effective Date.
(b) None of Holdings or the Borrowers intend to, and does not
believe that it or any of its subsidiaries will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing
and amounts of cash to be received by it or any such subsidiary and the
timing and amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such subsidiary
146
SECTION 3.20. Labor Matters. There are no strikes pending or
threatened against Holdings, Intermediate Holdings, the U.S. Borrower or any of
the Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of Holdings, Intermediate Holdings, the U.S. Borrower and the
Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
material payments due from Holdings, Intermediate Holdings, the U.S. Borrower or
any of the Subsidiaries or for which any claim may be made against Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries, on account
of wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of Holdings, Intermediate Holdings,
the U.S. Borrower or such Subsidiary to the extent required by GAAP. Except as
set forth on Schedule 3.20, consummation of the Transactions will not give rise
to a right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries (or any predecessor) is a
party or by which Holdings, Intermediate Holdings, the U.S. Borrower or any of
the Subsidiaries (or any predecessor) is bound, other than collective bargaining
agreements that, individually or in the aggregate, are not material to Holdings,
Intermediate Holdings, the U.S. Borrower and the Subsidiaries, taken as a whole.
SECTION 3.21. Insurance. Schedule 3.21 sets forth a true, complete
and correct description of all material insurance maintained by or on behalf of
Holdings, Intermediate Holdings, the U.S. Borrower or the Subsidiaries as of the
Restatement Effective Date. As of such date, such insurance is in full force and
effect. The U.S. Borrower believes that the insurance maintained by or on behalf
of Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries is
adequate.
ARTICLE IV
Conditions
SECTION 4.01. Effectiveness of Restated Credit Agreement. (a) This
Agreement (other than Section 5.15) shall become effective upon the satisfaction
of the following conditions:
(i) The Administrative Agent (or its counsel) shall have
received from each of Holdings, Intermediate Holdings, the U.S.
Borrower, the Foreign
147
Subsidiary Borrowers party hereto and the Required Restatement
Lenders either (i) a counterpart of this Agreement (a "Lender
Addendum") signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a Lender Addendum.
(ii) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the
Lenders and dated the Restatement Effective Date) of Xxxxxxx Xxxxxxx
& Xxxxxxxx LLP, special counsel for Holdings and the U.S. Borrower,
substantially in the form of Exhibit O. Holdings and the U.S.
Borrower hereby request such counsel to deliver such opinion.
(iii) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party, the authorization of
the Restatement Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Restatement
Transactions, all in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
(iv) The Administrative Agent shall have received a
certificate of a Responsible Officer of the U.S. Borrower, dated the
Restatement Effective Date, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section
4.02.
(v) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Restatement
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any
Loan Party hereunder or under any other Loan Document.
(vi) The Collateral Agent shall have received (i) all
documents and instruments required by law or reasonably requested by
the Collateral Agent to be filed, registered or recorded to create
or perfect the Liens intended to be created under the Security
Documents after giving effect to the Restatement
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Transactions (other than those described in Section 5.14 hereto),
(ii) the results of bring down searches of the Uniform Commercial
Code filings made with respect to the Domestic Subsidiary Loan
Parties and (iii) completed Perfection Certificates, dated the
Restatement Effective Date and signed by a Responsible Officer of
the U.S. Borrower, together with all attachments contemplated
thereby.
(vii) The Collateral Agent shall have received to the extent
reasonably requested by the Collateral Agent, (i) amendments to each
Mortgage providing that the Tranche A Term Loans, Tranche A-1 Term
Loans, Tranche B Term Loans, Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0
Term Loans, Tranche E Term Loans, Existing Revolving Facility Loans
and New Revolving Facility Loans (in addition to the other
Obligations described therein) shall be secured by a Lien on each
Mortgaged Property, signed on behalf of the record owner of such
Mortgaged Property, and (ii) title endorsements with respect to each
Mortgaged Property to the extent specified on Schedule 3.18, issued
by a nationally recognized title insurance company, insuring the
Lien of each Mortgage amended as provided in this Section 4.01(vii)
as a valid first Lien on the Mortgaged Property described therein,
free of any other Liens except as permitted under Section 6.02,
together with such endorsements, coinsurance and reinsurance as the
Collateral Agent may reasonably request.
(viii) The Collateral Agent shall have received (i) amendments
or supplements to Security Documents set forth on Schedule 4.01
hereto providing that the Tranche A Term Loans, Tranche A-1 Term
Loans, Tranche B Term Loans, Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0
Term Loans, Tranche E Term Loans, Existing Revolving Facility Loans
and New Revolving Facility Loans (in addition to the other
Obligations described therein) shall be secured by a Lien on the
Collateral described therein and (ii) opinions of counsel set forth
on Schedule 4.01 hereto.
(ix) The Administrative Agent shall have received evidence
that the insurance required by Section 5.02 of this Agreement and
the Security Documents is in effect.
(x) A Reaffirmation Agreement substantially in the form of
Exhibit P hereto shall have been delivered
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by each party thereto.
(xi) The Administrative Agent shall have received a Borrowing
Request in respect of Tranche A Term Borrowings, Tranche B Term
Borrowings and New Revolving Facility Borrowings, which Borrowing
Request shall comply with the provisions of Section 2.03 and shall
provide for the Borrowings specified therein no later than 5:00
p.m., New York City time, on January 10, 2005.
The Administrative Agent shall notify the U.S. Borrower and the
Lenders of the Restatement Effective Date, and such notice shall be conclusive
and binding. Notwithstanding the foregoing, (A) this Agreement shall not become
effective unless each of the foregoing conditions is satisfied at or prior to
5:00 p.m., New York City time, on December 31, 2004 (and, in the event such
conditions are not so satisfied or waived, the Tranche A Term Loan Commitments,
the Tranche B Term Loan Commitments, the New Global Revolving Facility
Commitments and the New U.S. Revolving Facility Commitments shall terminate at
such time).
(b) Section 5.15 of this Agreement shall become effective at
the Effective Funding Time.
SECTION 4.02. All Credit Events. The obligations of (a) the Lenders
(including the Swingline Lenders) to make Loans and (b) any Issuing Bank to
issue Letters of Credit or increase the stated amounts of Letters of Credit
hereunder (each, a "Credit Event") are subject to the satisfaction of the
conditions that, on the date of each Borrowing (other than an Ancillary
Replacement Borrowing) and on the date of each issuance, amendment, extension or
renewal of a Letter of Credit:
(a) The Administrative Agent shall have received, in the case of a
Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing
Request shall have been deemed given in accordance with the last paragraph
of Section 2.03) or, in the case of the issuance of a Letter of Credit,
the applicable Issuing Bank and the Administrative Agent shall have
received a notice requesting the issuance of such Letter of Credit as
required by Section 2.05(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing or issuance, amendment, extension or renewal of a
Letter of Credit (other than an amendment, extension or renewal of a
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Letter of Credit without any increase in the stated amount of such Letter
of Credit), as applicable, with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date).
(c) At the time of and immediately after such Borrowing or issuance,
amendment, extension or renewal of a Letter of Credit (other than an
amendment, extension or renewal of a Letter of Credit without any increase
in the stated amount of such Letter of Credit), as applicable, no Event of
Default or Default shall have occurred and be continuing.
Each Borrowing (other than an Ancillary Replacement Borrowing) and each
issuance, amendment, extension or renewal of a Letter of Credit shall be deemed
to constitute a representation and warranty by the applicable Borrower (in the
case of a Borrowing) and each Applicant Party (in the case of a Letter of
Credit) on the date of such Borrowing, issuance, amendment, extension or renewal
as applicable, as to the matters specified in paragraphs (b) and (c) of this
Section 4.02.
SECTION 4.03. Credit Events Relating to Foreign Subsidiary
Borrowers. The obligations of (x) the Lenders (including the Swingline Foreign
Currency Lenders) to make Loans to any Foreign Subsidiary that becomes a Foreign
Subsidiary Borrower after the Restatement Effective Date, (y) any Issuing Bank
to issue Letters of Credit for the account of any such Foreign Subsidiary
Borrower and (z) any Ancillary Lender to make available an Ancillary Facility to
such Foreign Subsidiary Borrower, in each case to the extent designated in
accordance with Section 2.20, are subject to the satisfaction of the following
conditions (which are in addition to the conditions contained in Section 4.02):
(a) With respect to the initial Loan made to, the initial Letter of
Credit issued at the request of, or the creation of an Ancillary Facility
for, such Foreign Subsidiary Borrower, whichever comes first,
(i) the Administrative Agent (or its counsel) shall have
received a Foreign Subsidiary Borrower Agreement with respect to
such Foreign Subsidiary Borrower duly executed by all parties
thereto; and
(ii) the Administrative Agent shall have received such
documents (including legal opinions) and
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certificates as the Administrative Agent or its counsel may
reasonably request relating to the formation, existence and good
standing of such Foreign Subsidiary Borrower, the authorization of
Borrowings as they relate to such Foreign Subsidiary Borrower and
any other legal matters relating to such Foreign Subsidiary Borrower
or its Foreign Subsidiary Borrower Agreement, all in form and
substance reasonably satisfactory to the Administrative Agent and
its counsel.
(b) The Administrative Agent and the applicable Ancillary Lender, if
any, shall be reasonably satisfied that Section 5.10(f) shall have been
complied with in respect of such Foreign Subsidiary Borrower and that the
Collateral and Guarantee Requirement shall have been satisfied with
respect to such Foreign Subsidiary Borrower and its subsidiaries.
ARTICLE V
Affirmative Covenants
Each of Holdings, Intermediate Holdings and the Borrowers covenants
and agrees with each Lender that so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document shall have been paid in full and all Letters of Credit have
been canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, unless the Required Lenders shall otherwise consent in
writing, each of Holdings, Intermediate Holdings and the Borrowers will, and
will cause each of the ERISA Affiliates and Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05, and except for the liquidation or dissolution of Subsidiaries if
the assets of such Subsidiaries to the extent they exceed estimated liabilities
are acquired by a Borrower or a Wholly Owned Subsidiary of a Borrower in such
liquidation or dissolution, provided that Subsidiaries that are Loan Parties may
be liquidated into Subsidiaries that are not Loan Parties only to the extent
that such liquidation is treated as an investment by a Subsidiary Loan Party in
a Subsidiary that is not a Loan Party under Section 6.04(a).
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(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade
names, copyrights, licenses and rights with respect thereto necessary to
the normal conduct of its business, (ii) comply in all material respects
with all material applicable laws, rules, regulations (including any
zoning, building, ordinance, code or approval or any building permits) or
any restrictions of record or agreements affecting the Mortgaged
Properties and judgments, writs, injunctions, decrees and orders of any
Governmental Authority, whether now in effect or hereafter enacted and
(iii) at all times maintain and preserve all property necessary to the
normal conduct of its business and keep such property in good repair,
working order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on
in connection therewith, if any, may be properly conducted at all times
(in each case except as expressly permitted by this Agreement).
SECTION 5.02. Insurance. (a) Keep its insurable properties insured
at all times by financially sound and reputable insurers in such amounts as
shall be customary for similar businesses and maintain such other reasonable
insurance (including, to the extent consistent with past practices,
self-insurance), of such types, to such extent and against such risks, as is
customary with companies in the same or similar businesses and maintain such
other insurance as may be required by law or any other Loan Document.
(b) Cause all such property and casualty insurance policies
with respect to the Mortgaged Properties to be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall
provide that, from and after the Restatement Effective Date, if the
insurance carrier shall have received written notice from the
Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable
to the U.S. Borrower or the Loan Parties under such policies directly to
the Collateral Agent; cause all such policies to provide that neither the
U.S. Borrower, the Administrative Agent, the Collateral Agent nor any
other party shall be a coinsurer thereunder and to contain a
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"Replacement Cost Endorsement", without any deduction for depreciation,
and such other provisions as the Administrative Agent or the Collateral
Agent may reasonably (in light of a Default or a material development in
respect of the insured Mortgaged Property) require from time to time to
protect their interests; deliver original or certified copies of all such
policies or a certificate of an insurance broker to the Collateral Agent;
cause each such policy to provide that it shall not be canceled, modified
or not renewed upon less than 30 days' prior written notice thereof by the
insurer to the Administrative Agent and the Collateral Agent; deliver to
the Administrative Agent and the Collateral Agent, prior to the
cancelation, modification or nonrenewal of any such policy of insurance, a
copy of a renewal or replacement policy (or other evidence of renewal of a
policy previously delivered to the Administrative Agent and the Collateral
Agent), or insurance certificate with respect thereto, together with
evidence satisfactory to the Administrative Agent and the Collateral Agent
of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined
in the Mortgages) are located is designated a "flood hazard area" in any
Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), obtain flood insurance in such
reasonable total amount as the Administrative Agent or the Collateral
Agent may from time to time reasonably require, and otherwise comply with
the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as it may be amended from time to time.
(d) With respect to each Mortgaged Property, carry and
maintain comprehensive general liability insurance including the "broad
form CGL endorsement" and coverage on an occurrence basis against claims
made for personal injury (including bodily injury, death and property
damage) and umbrella liability insurance against any and all claims, in
each case in amounts and against such risks as are customarily maintained
by companies engaged in the same or similar industry operating in the same
or similar locations naming the Collateral Agent as an additional insured,
on forms reasonably satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
promptly whenever any separate insurance concurrent in form or
contributing in the event of loss
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with that required to be maintained under this Section 5.02 is taken out
by Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies, or
an insurance certificate with respect thereto.
(f) In connection with the covenants set forth in this Section
5.02, it is understood and agreed that:
(i) none of the Agents, the Lenders, the Issuing Bank and
their respective agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained
under this Section 5.02, it being understood that (A) the U.S.
Borrower and the other Loan Parties shall look solely to their
insurance companies or any other parties other than the aforesaid
parties for the recovery of such loss or damage and (B) such
insurance companies shall have no rights of subrogation against the
Agents, the Lenders, any Issuing Bank or their agents or employees.
If, however, the insurance policies do not provide waiver of
subrogation rights against such parties, as required above, then
each of Holdings, Intermediate Holdings and the U.S. Borrower hereby
agree, to the extent permitted by law, to waive, and to cause each
of the Subsidiaries to waive, its right of recovery, if any, against
the Agents, the Lenders, any Issuing Bank and their agents and
employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent or the Collateral Agent under
this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent
or the Lenders that such insurance is adequate for the purposes of
the business of Holdings, Intermediate Holdings, the U.S. Borrower
and the Subsidiaries or the protection of their properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all
material Taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good
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faith by appropriate proceedings, and Holdings, Intermediate Holdings, the U.S.
Borrower or the affected Subsidiary, as applicable, shall have set aside on its
books reserves in accordance with GAAP with respect thereto and such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the
Administrative Agent (which will furnish such information to the Lenders):
(a) within 90 days (or such shorter period as the SEC shall
specify for the filing of Annual Reports on Form 10-K) after the end of
each fiscal year, a consolidated balance sheet and related statements of
operations, cash flows and owners' equity showing the financial position
of the U.S. Borrower and the Subsidiaries as of the close of such fiscal
year and the consolidated results of their operations during such year,
all audited by independent public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and accompanied
by an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial
statements fairly present, in all material respects, the financial
position and results of operations of the U.S. Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that the delivery by the U.S. Borrower of Annual Reports on
Form 10-K of the U.S. Borrower and its consolidated Subsidiaries shall
satisfy the requirements of this Section 5.04(a) to the extent such Annual
Reports include the information specified herein); provided that, in the
event that (i) either Holdings or Intermediate Holdings becomes subject to
the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, and (ii) Holdings or Intermediate
Holdings, as applicable, is not engaged in any business or business
activity other than that which is expressly permitted under Section 6.08,
this clause may be satisfied by the provision of consolidated financial
statements of Holdings or Intermediate Holdings, as applicable, in a
manner consistent with the other requirements of this clause, and all
references to the U.S. Borrower in this clause shall instead be deemed to
be references to Holdings or Intermediate Holdings, as applicable;
(b) within 45 days (or such shorter period as the SEC shall
specify for the filing of Quarterly Reports on Form 10-Q) after the end of
each of the first three
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fiscal quarters of each fiscal year, a consolidated balance sheet and
related statements of operations and cash flows showing the financial
position of the U.S. Borrower and the Subsidiaries as of the close of such
fiscal quarter and the consolidated results of their operations during
such fiscal quarter and the then-elapsed portion of the fiscal year, all
certified by a Financial Officer of the U.S. Borrower, on behalf of the
U.S. Borrower, as fairly presenting, in all material respects, the
financial position and results of operations of the U.S. Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of footnotes and except
that purchase accounting may be reflected on a preliminary basis in
financial statements delivered for the fiscal quarters ending in 2003) (it
being understood that the delivery by the U.S. Borrower of Quarterly
Reports on Form 10-Q of the U.S. Borrower and its consolidated
subsidiaries shall satisfy the requirements of this Section 5.04(b) to the
extent such Quarterly Reports include the information specified herein);
provided that, in the event that (i) either Holdings or Intermediate
Holdings becomes subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, and (ii)
Holdings or Intermediate Holdings, as applicable, is not engaged in any
business or business activity other than that which is expressly permitted
under Section 6.08, this clause may be satisfied by the provision of
consolidated financial statements of Holdings or Intermediate Holdings, as
applicable, in a manner consistent with the other requirements of this
clause, and all references to the U.S. Borrower in this clause shall
instead be deemed to be references to Holdings or Intermediate Holdings,
as applicable;
(c) (x) no later than five Business Days after any delivery of
financial statements under (a) or (b) above, a certificate of a Financial
Officer of the U.S. Borrower (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating (A) compliance with the covenants contained in
Sections 6.11 and 6.12, and (B) the calculation of the Leverage Ratio as
of the end of the applicable fiscal quarter for purposes of determining
the Applicable Margin with respect to each Loan and (y) no later than five
Business Days after any delivery of financial statements
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under (a) above, a certificate of the accounting firm opining on or
certifying such statements stating whether they obtained knowledge during
the course of their examination of such statements of any Default or Event
of Default (which certificate may be limited to accounting matters and
disclaims responsibility for legal interpretations);
(d) promptly after the same become publicly available, copies
of all periodic and other publicly available reports, proxy statements
and, to the extent requested by the Administrative Agent, other materials
filed by Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries with the SEC, or distributed to its stockholders generally,
as applicable;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the Closing Date, the consolidated
financial statements delivered pursuant to paragraph (a) or (b) above will
differ in any material respect from the consolidated financial statements
that would have been delivered pursuant to such clauses had no such change
in accounting principles and policies been made, then, together with the
first delivery of financial statements pursuant to paragraph (a) and (b)
above following such change, a schedule prepared by a Financial Officer on
behalf of Holdings, Intermediate Holdings or the U.S. Borrower, as
applicable, reconciling such changes to what the financial statements
would have been without such changes;
(f) upon the reasonable request of the Administrative Agent,
deliver updated Perfection Certificates (or, to the extent such request
relates to specified information contained in the Perfection Certificates,
such information) reflecting all changes since the date of the information
most recently received pursuant to this paragraph (f), Section 4.01(a)(vi)
or Section 5.10(e);
(g) promptly, a copy of all reports submitted to the Board of
Directors (or any committee thereof) of any of Holdings, Intermediate
Holdings, the U.S. Borrower or any Subsidiary in connection with any
material interim or special audit made by independent accountants of the
books of Holdings, Intermediate Holdings, the U.S. Borrower or any
Subsidiary; and
(h) promptly, from time to time, such other information
regarding the operations, business affairs and
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financial condition of Holdings, Intermediate Holdings, the U.S. Borrower
or any of the Subsidiaries, or compliance with the terms of any Loan
Document, or such consolidating financial statements, as in each case the
Administrative Agent may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of the U.S. Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority or in arbitration, against Holdings, Intermediate Holdings, the
U.S. Borrower or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which could reasonably be
expected to have a Material Adverse Effect;
(c) any other development specific to Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries that is not a
matter of general public knowledge and that has had, or could reasonably
be expected to have, a Material Adverse Effect; and
(d) the occurrence of any ERISA Event, that together with all
other ERISA Events that have occurred, could reasonably be expected to
result in liability of Holdings, Intermediate Holdings, the U.S. Borrower,
the Subsidiaries and all ERISA Affiliates in an aggregate amount in excess
of $60,000,000.
SECTION 5.06. Compliance with Laws. Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
provided that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the subject
of Section 5.03.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any persons designated by the
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Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender to visit and inspect the financial records and the
properties of Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to Holdings,
Intermediate Holdings, or the U.S. Borrower, and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any persons designated by the Agents or, upon the occurrence and during
the continuance of an Event of Default, any Lender upon reasonable prior notice
to Holdings, Intermediate Holdings or the U.S. Borrower to discuss the affairs,
finances and condition of Holdings, Intermediate Holdings, the U.S. Borrower or
any of the Subsidiaries with the officers thereof and independent accountants
therefor (subject to reasonable requirements of confidentiality, including
requirements imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Tranche A
Term Loans, the Tranche B Term Loans and the New Revolving Loans made at the
Effective Funding Time solely to repay all obligations outstanding at the
Effective Funding Time in respect of the Tranche A-1 Term Loans, the Tranche D-1
Term Loans, the Tranche D-2 Term Loans, the Existing Revolving Facilities and
the Swingline Loans, and to pay fees and expenses in connection with the
Restatement Transactions. Use the proceeds of the Revolving Loans (other than
the New Revolving Loans made at the Effective Funding Time) and Swingline Loans
and request issuance of Letters of Credit solely for general corporate purposes.
In the case of an Eligible Borrower, use the proceeds of an Ancillary
Replacement Borrowing only for the purposes set forth in Section 2.22(e).
SECTION 5.09. Compliance with Environmental Laws. Comply, and make
reasonable efforts to cause all lessees and other persons occupying its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material, authorizations and permits
required pursuant to Environmental Law for its operations and properties; and to
conduct any investigations and/or remediations required by Environmental Laws,
except, in each case with respect to this Section 5.09, to the extent the
failure to do so could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
SECTION 5.10. Further Assurances; Additional Mortgages. (a) Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements, fixture filings, Mortgages and other documents), that may
be required under any applicable law, or that the
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Administrative Agent may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the Loan
Parties and provide to the Administrative Agent, from time to time upon
reasonable request of the Administrative Agent, evidence reasonably satisfactory
to the Administrative Agent as to the perfection and priority of the Liens
created or intended to be created by the Security Documents.
(b) If any asset (including any real property or improvements
thereto or any interest therein) that has an individual fair market value
in an amount having a Dollar Equivalent greater than $10,000,000 is
acquired by the U.S. Borrower or any other Loan Party after the
Restatement Effective Date or owned by an entity at the time it becomes a
Subsidiary Loan Party (in each case other than assets constituting
Collateral under a Security Document that become subject to the Lien of
such Security Document upon acquisition thereof), cause such asset to be
subjected to a Lien securing the Obligations and take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all
at the expense of the Loan Parties, subject to paragraph (h) below.
(c) In the case of the U.S. Borrower, grant and cause each of
the Domestic Subsidiary Loan Parties to grant to the Collateral Agent
security interests and mortgages in such real property of the U.S.
Borrower or any such Domestic Subsidiary Loan Parties as are not covered
by the original U.S. Mortgages, to the extent acquired after the
Restatement Effective Date and having a value at the time of acquisition
in excess of $10,000,000 pursuant to documentation substantially in the
form of the U.S. Mortgages delivered to the Collateral Agent on the
Restatement Effective Date or in such other form as is reasonably
satisfactory to the Collateral Agent (each, an "Additional Mortgage") and
constituting valid and enforceable perfected Liens superior to and prior
to the rights of all third persons subject to no other Liens except as are
expressly permitted by Section 6.02 or arising by operation of law, at the
time of perfection thereof, record or file, and cause each such Subsidiary
to record or file, the Additional Mortgage or instruments related thereto
in such manner and in such places as is required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be
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granted pursuant to the Additional Mortgages and pay, and cause each such
Subsidiary to pay, in full, all Taxes, fees and other charges payable in
connection therewith, in each case subject to paragraph (h) below.
(d) If any additional direct or indirect subsidiary of
Holdings is formed or acquired after the Restatement Effective Date if
such subsidiary is a Domestic Subsidiary Loan Party, within five Business
Days after the date such subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof and, within 20 Business Days
after the date such subsidiary is formed or acquired, cause the Collateral
and Guarantee Requirement to be satisfied with respect to such subsidiary
and with respect to any Equity Interest in or Indebtedness of such
subsidiary owned by or on behalf of any Loan Party.
(e) In the case of the U.S. Borrower, (i) furnish to the
Collateral Agent prompt written notice of any change (A) in any Loan
Party's corporate name, (B) in any Loan Party's identity or corporate
structure or (C) in any Loan Party's organizational identification number;
provided that the U.S. Borrower shall not effect or permit any such change
unless all filings have been made, or will have been made within any
statutory period, under the Uniform Commercial Code or otherwise that are
required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security
interest in all the Collateral for the benefit of the Secured Parties and
(ii) promptly notify the Administrative Agent if any material portion of
the Collateral is damaged or destroyed.
(f) Prior to any Foreign Subsidiary becoming a Foreign
Subsidiary Loan Party, cause (i) the Collateral and Guarantee Requirement
to be satisfied with respect to such Foreign Subsidiary, (ii) the Equity
Interests and Pledged Collateral (if any) of such Foreign Subsidiary to be
pledged pursuant to a Foreign Pledge Agreement and (iii) after giving
effect to paragraph (h) below, at least a substantial portion of the
assets (as reasonably determined by the Administrative Agent) of such
Foreign Subsidiary to be subject to a valid first lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
(g) [Intentionally Omitted]
(h) The Collateral and Guarantee Requirement and the other
provisions of this Section 5.10 need not be
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satisfied with respect to (i) any real property held by Holdings,
Intermediate Holdings, the U.S. Borrower or any Subsidiary as a lessee
under a lease, (ii) any Equity Interests acquired after the Restatement
Effective Date pursuant to Section 6.04(s) if, and to the extent that, and
for so long as (A) doing so would violate applicable law or a contractual
obligation binding on such Equity Interests and (B) such law or obligation
existed at the time of the acquisition thereof and was not created or made
binding on such Equity Interests in contemplation of or in connection with
the acquisition of such Subsidiary (provided that the foregoing clause (B)
shall not apply in the case of a joint venture, including a joint venture
that is a Subsidiary), (iii) any assets acquired after the Restatement
Effective Date, to the extent that, and for so long as, taking such
actions would violate a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection with the
acquisition of such assets (except in the case of assets acquired with
Indebtedness that constitutes a Capital Lease Obligation, mortgage
financing or purchase money financing and that is secured by a Lien
permitted pursuant to Section 6.02(r)) or (iv) any Subsidiary or asset
with respect to which the Collateral Agent determines that the cost of the
satisfaction of the Collateral and Guarantee Requirement or the provisions
of this Section 5.10 with respect thereto exceeds the value of the
security afforded thereby; provided that upon the reasonable request of
the Collateral Agent, the U.S. Borrower shall, and shall cause any
applicable Subsidiary to, use commercially reasonable efforts to have
waived or eliminated any contractual obligation of the types described in
clauses (ii) and (iii) above, other than those set forth in joint venture
agreements to which the U.S. Borrower or a Subsidiary is party.
SECTION 5.11. Fiscal Year; Accounting. In the case of the U.S.
Borrower, cause its fiscal year to end on December 31.
SECTION 5.12. [Intentionally Omitted].
SECTION 5.13. Proceeds of Certain Dispositions. If, as a result of
the receipt of any cash proceeds by the U.S. Borrower or any Subsidiary in
connection with any sale, transfer, lease or other disposition of any asset,
including any Equity Interest, the U.S. Borrower would be required by the terms
of the Senior Note Indentures or Senior Subordinated Note Indentures to make an
offer to purchase any Senior Notes or Senior Subordinated
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Notes, as applicable, then, in the case of the U.S. Borrower or a Subsidiary,
prior to the first day on which the U.S. Borrower would be required to commence
such an offer to purchase, (i) prepay Loans in accordance with Section 2.11 or
(ii) acquire assets, Equity Interests or other securities in a manner that is
permitted by Section 6.04 or Section 6.05, in each case in a manner that will
eliminate any such requirement to make such an offer to purchase.
SECTION 5.14. Post Restatement Effective Date Matters. The U.S.
Borrower shall, or shall cause the applicable Loan Party to, deliver to the
Collateral Agent, no later than 90 days after the Restatement Effective Date, or
by such later date as the Collateral Agent deems appropriate, (i) amendments or
supplements to Security Documents set forth on Schedule 5.14(a) hereto (and all
related documents reasonably requested by the Administrative Agent) providing
that the Tranche A Term Loans, Tranche A-1 Term Loans, Tranche B Term Loans,
Tranche X-0 Xxxx Xxxxx, Xxxxxxx X-0 Term Loans, Tranche E Term Loans, Existing
Revolving Facility Loans and New Revolving Facility Loans (in addition to the
other Obligations described therein) shall be secured by a Lien on the
Collateral described therein, (ii) opinions of counsel set forth on Schedule
5.14(b) and (iii) promissory notes evidencing Indebtedness owing to Loan Parties
set forth on Schedule 5.14(c).
SECTION 5.15. Collateral Release. (a) Immediately upon the
commencement of any Collateral Release Period, the security interests of the
Collateral Agent and the other Secured Parties in the Collateral shall
automatically be terminated and released; provided that the Guarantee of each
Loan Party of the Obligations pursuant to the Loan Documents shall remain in
effect during any such Collateral Release Period. During any Collateral Release
Period, the Administrative Agent and the Collateral Agent shall execute and
deliver, at the U.S. Borrower's expense, all documents or other instruments that
the U.S. Borrower shall reasonably request to evidence the termination and
release of such security interests and shall return all Collateral in their
possession to the U.S. Borrower.
(b) During any Collateral Release Period:
(i) The representations and warranties set forth in Section
3.17 shall not be required to be true and correct in any respect in
connection with any Credit Event occurring during such period, and
the inaccuracy in any respect of such representations and warranties
shall not give rise to any Default or Event of Default pursuant to
Section 7.01(a);
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(ii) Holdings, Intermediate Holdings and the Borrowers shall
not be required to comply with the terms of Sections 5.02(b), (c),
(d) or (e);
(iii) Holdings, Intermediate Holdings and the Borrowers shall
not be required to comply with the terms of Section 5.10 to the
extent such terms require the creation and perfection of security
interests or Liens on Collateral (it being understood that Holdings,
Intermediate Holdings and the Borrowers shall continue to be
required to comply with the terms of Section 5.10 that require the
provision of Guarantees by Loan Parties in respect of the
Obligations); and
(iv) The occurrence of any of the events described in Section
7.01(l)(ii) shall not constitute or give rise to any Default or
Event of Default.
(c) Upon the termination of any Collateral Release Period, the
security interests of the Collateral Agent and the Secured Parties in the
Collateral shall automatically, without any further action on the part of
the Administrative Agent, the Collateral Agent, the Secured Parties or any
Loan Party, be reinstated and the provisions of Section 5.15(a) and (b)
shall no longer apply (until the commencement of a subsequent Collateral
Release Period). Promptly following the termination of any Collateral
Release Period, the Loan Parties shall execute any and all documents,
financing statements, agreements and instruments, and take all such
actions (including the filing and recording of financing statements,
mortgages, fixture filings and other documents) that may be required under
applicable law or that the Administrative Agent or Collateral Agent shall
reasonably request, to reinstate such security interests and to cause the
Collateral and Guarantee Requirement to be satisfied (all at the expense
of the Loan Parties), including with respect to any Subsidiaries or assets
that would have been subjected to the Collateral and Guarantee Requirement
under Section 5.10 had such terminated Collateral Release Period not been
in effect; provided that all such actions shall be completed (i) with
respect to the security interests in Collateral held by Holdings,
Intermediate Holdings, the U.S. Borrower and each Domestic Subsidiary Loan
Party (other than owned real property), no later than 30 days after the
date of termination of such Collateral Release Period, (ii) with respect
to Collateral held by Holdings, Intermediate Holdings, the U.S. Borrower
and each Domestic Subsidiary Loan Party that constitutes owned real
property, no later
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than 45 days after the date of termination of such Collateral Release
Period and (iii) with respect to Collateral held by any Foreign Subsidiary
Loan Party, no later than 90 days after the date of termination of such
Collateral Release Period (or, in each case, such later date as the
Collateral Agent shall deem appropriate).
ARTICLE VI
Negative Covenants
Each of Holdings, Intermediate Holdings and the Borrowers covenants
and agrees with each Lender that, so long as this Agreement shall remain in
effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full, unless the Required Lenders shall otherwise consent in writing, none of
Holdings, Intermediate Holdings or the U.S. Borrower will, or will cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Permit Holdings, Intermediate Holdings
or any Subsidiary to incur, create, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder and under the other Loan
Documents;
(b) Indebtedness of the Subsidiaries pursuant to Swap
Agreements permitted by Section 6.13;
(c) Indebtedness owed to (including obligations in respect of
letters of credit or bank guarantees for the benefit of) any person
providing workers' compensation, health, disability or other employee
benefits or property, casualty or liability insurance to the U.S. Borrower
or any Subsidiary, pursuant to reimbursement or indemnification
obligations to such person, provided that upon the incurrence of
Indebtedness with respect to reimbursement obligations regarding workers'
compensation claims, such obligations are reimbursed not later than 30
days following such incurrence;
(d) Indebtedness of any Borrower to any Subsidiary and any
Subsidiary to any Borrower or any other Subsidiary, provided that (i)
Indebtedness of the Subsidiaries that are not Loan Parties to the
Borrowers and
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the Subsidiary Loan Parties shall be subject to Section 6.04(d) and (ii)
Indebtedness of any Borrower to any Subsidiary and Indebtedness of any
other Loan Party to any Subsidiary that is not a Subsidiary Loan Party
(the "Subordinated Intercompany Debt") shall be subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent
(other than Indebtedness of any Loan Party in respect of loans made by
Fortuna described on Schedule 6.07);
(e) Indebtedness of the Subsidiaries in respect of performance
bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and
similar obligations, in each case provided in the ordinary course of
business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business and any
extension, renewal or refinancing thereof to the extent that the amount of
refinancing Indebtedness is not greater than the amount of Indebtedness
being refinanced (plus unpaid accrued interest and premium thereon);
(f) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, provided
that such Indebtedness is extinguished promptly after its incurrence;
(g) (i) Guarantees by Holdings, Intermediate Holdings and the
Subsidiaries of the Senior Notes, the Senior Subordinated Notes and any
Permitted Notes Refinancing Indebtedness, in each case pursuant to the
terms of the Senior Notes Indenture or Senior Subordinated Indenture, or
the definitive documentation with respect to such Permitted Notes
Refinancing Indebtedness, as applicable, and (ii) Guarantees by Holdings,
Intermediate Holdings and the Subsidiaries pursuant to the terms of the
definitive documentation with respect to any Permitted Xxxxx Refinancing
Indebtedness;
(h) Indebtedness arising from agreements of a Subsidiary
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than Guarantees
of Indebtedness incurred by any person acquiring all or any portion of
such business, assets or a Subsidiary for the purpose of financing such
acquisition;
(i) in the case of Intermediate Holdings, the Intermediate
Holdings Loan;
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(j) the Permitted Receivables Financing;
(k) the Xxxxx Loan and the Foreign Acquiror Loans;
(l) trade letters of credit (other than Letters of Credit
issued pursuant to Section 2.05) having an aggregate face amount not in
excess of $50,000,000;
(m) (i) Indebtedness of the Subsidiaries in an aggregate
principal amount at any time outstanding pursuant to this paragraph (m)
not in excess of $300,000,000, to the extent that the Net Proceeds of such
Indebtedness are applied to prepay Term Loans pursuant to Section 2.11(c),
provided that (A) the stated maturity of such Indebtedness is no earlier
than 180 days after the Tranche B Maturity Date or the maturity date of
any outstanding Incremental Extension of Credit, (B) the weighted average
life of such Indebtedness is no shorter than the then-remaining weighted
average life of the Tranche B Term Loans, (C) such Indebtedness shall not
be secured by any collateral and (D) all other terms (excluding interest
rates and redemption premiums) of such Indebtedness shall not be less
favorable to the Lenders in any material respect than those contained in
the Senior Notes (or, if such Indebtedness is subordinated to the
Obligations, the Senior Subordinated Notes) and (ii) Guarantees by
Holdings, Intermediate Holdings and the Subsidiaries of Indebtedness
permitted to be incurred pursuant to clause (i) of this paragraph (m);
(n) the Xxxxx Notes and the Permitted Xxxxx Refinancing
Indebtedness; and
(o) (i) other Indebtedness of the Subsidiaries not permitted
under any other clause of this Section 6.01 in an aggregate principal
amount that at the time of, and after giving effect to, the incurrence
thereof (together with all other Indebtedness incurred and outstanding
pursuant to this clause (o)) would not exceed 10% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date
of such incurrence for which financial statements have been delivered
pursuant to Section 5.04 and (ii) Guarantees by Holdings, Intermediate
Holdings and the Subsidiaries of Indebtedness permitted to be incurred
pursuant to clause (i) of this paragraph (o).
Notwithstanding anything to the contrary herein, Xxxxx shall not be
permitted to incur any Indebtedness other than the Xxxxx Loan and a Guarantee
pursuant to paragraph (g)(i) of this
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Section 6.01 (other than Indebtedness owing to any Loan Party that is evidenced
by a promissory note and pledged pursuant to the U.S. Collateral Agreement or a
Foreign Pledge Agreement, which Indebtedness shall be subject to Section
6.04(d)).
SECTION 6.02. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any subsidiary of Holdings, Intermediate Holdings or the U.S.
Borrower) at the time owned by it or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on property or assets of the U.S. Borrower and the
Subsidiaries existing on the Restatement Effective Date and set forth on
the Schedule 6.02, provided that such Liens shall secure only those
obligations that they secure on the Restatement Effective Date (and
extensions, renewals and refinancings of such obligations that do not
increase the principal amount of the obligations being extended, renewed
or refinanced (plus accrued and unpaid interest and premium thereon) and
that are permitted by Section 6.01(a)) and shall not subsequently apply to
any other property or assets of Holdings, Intermediate Holdings, the U.S.
Borrower or any Subsidiary;
(b) any Lien created under the Loan Documents or permitted in
respect of any Mortgaged Property by the terms of the applicable Mortgage;
(c) Liens for Taxes, assessments or other governmental charges
or levies not yet delinquent or that are being contested in compliance
with Section 5.03 or for property Taxes on property that Holdings,
Intermediate Holdings, the U.S. Borrower or one of the Subsidiaries has
determined to abandon if the sole recourse for such Tax, assessment,
charge, levy or claim is to such property;
(d) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, Holdings, Intermediate
Holdings, the U.S. Borrower or the relevant Subsidiary shall have set
aside on its books reserves in accordance with GAAP;
(e) (i) pledges and deposits made in the ordinary course of
business in compliance with the Federal
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Employers Liability Act or any other workers' compensation, unemployment
insurance and other social security laws or regulations and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements in respect of such obligations and (ii) pledges and deposits
securing liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank guarantees
for the benefit of) insurance carriers providing property, casualty or
liability insurance to the U.S. Borrower or any Subsidiary;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(g) zoning restrictions, easements, trackage rights, leases
(other than Capital Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and do not materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of Holdings, Intermediate Holdings, the
U.S. Borrower or any of the Subsidiaries;
(h) Liens securing judgments that do not constitute an Event
of Default under Section 7.01(j);
(i) Liens disclosed by the title insurance policies and title
endorsements delivered on the Restatement Effective Date and pursuant to
Section 5.10 and any replacement, extension or renewal of any such Lien,
provided that such replacement, extension or renewal Lien shall not cover
any property other than the property that was subject to such Lien prior
to such replacement, extension or renewal, provided, further, that the
Indebtedness and other obligations secured by such replacement, extension
or renewal Lien are permitted by this Agreement;
(j) Liens in respect of the Permitted Receivables Financing;
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(k) any interest or title of a lessor under any leases or
subleases entered into by the U.S. Borrower or any Subsidiary in the
ordinary course of business;
(l) Liens that are contractual rights of set-off (i) relating
to the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of the U.S. Borrower or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the U.S. Borrower and the Subsidiaries or (iii)
relating to purchase orders and other agreements entered into with
customers of the U.S. Borrower or a Subsidiary in the ordinary course of
business;
(m) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights;
(n) Liens securing obligations in respect of trade related
letters of credit permitted under Section 6.01(l) and covering the goods
(or the documents of title in respect of such goods) financed by such
letters of credit and the proceeds and products thereof;
(o) licenses of intellectual property granted in a manner
consistent with past practice;
(p) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with
the importation of goods;
(q) Liens on securities held by the U.S. Borrower or any
Subsidiary representing an interest in a joint venture to which the U.S.
Borrower or such Subsidiary is a party (provided that such joint venture
is not a Subsidiary) to the extent that (i) such Liens constitute purchase
options, calls or similar rights of a counterparty to such joint venture
and (ii) such Liens are granted pursuant to the terms of the partnership
agreement, joint venture agreement or other similar document or documents
pursuant to which such joint venture was created or otherwise governing
the rights and obligations of the parties to such joint venture; and
(r) other Liens not permitted under any other clause of this
Section 6.02 to secure obligations of the U.S. Borrower and the
Subsidiaries in an aggregate amount that at the time of, and after giving
effect to, the
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creation of such Lien (together with the Remaining Present Value of leases
permitted under Section 6.03) would not exceed 5% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date
of creation of such Lien for which financial statements have been
delivered pursuant to Section 5.04.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"), provided that a Sale and Lease-Back Transaction shall be
permitted to the extent that (a) such transaction was existing or under contract
on the Restatement Effective Date and set forth on Schedule 6.03 or (b) at the
time the lease in connection therewith is entered into, and after giving effect
to the entering into of such Lease, the Remaining Present Value of such lease
(together with all outstanding obligations secured by Liens pursuant to Section
6.02(r) and the Remaining Present Value of outstanding leases entered into under
this Section 6.03) would not exceed 5% of Consolidated Total Assets as of the
end of the fiscal quarter immediately prior to the date such lease is entered
into for which financial statements have been delivered pursuant to Section
5.04.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire (including pursuant to any merger with a person that is not a Wholly
Owned Subsidiary immediately prior to such merger) any Equity Interests,
evidences of indebtedness or other securities of, make or permit to exist any
loans or advances (other than intercompany current liabilities incurred in the
ordinary course of business in connection with the cash management operations of
the U.S. Borrower and the Subsidiaries) to or Guarantees of the obligations of,
or make or permit to exist any investment or any other interest in, any other
person, except:
(a) investments (i) existing on the Restatement Effective Date
in the Equity Interests of the Subsidiaries, (ii) by Holdings in the
Equity Interests of Intermediate Holdings, (iii) by Intermediate Holdings
in the Equity Interests of the U.S. Borrower and (iv) by any Borrower or
any Subsidiary in any Borrower or any Subsidiary, provided that
investments (other than Exempted Intercompany Investments) by the
Borrowers and the Subsidiary Loan Parties pursuant to this paragraph
(a)(iv) in Subsidiaries
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that are not Loan Parties (valued at the time of the making thereof) shall
not exceed the Available Intercompany Investment Amount at the time of the
making of each such investment;
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) investments arising out of the receipt by the U.S.
Borrower or any Subsidiary of noncash consideration for the sale of assets
permitted under Section 6.05;
(d) intercompany loans from any Borrower to any Subsidiary and
from any Subsidiary to any Borrower or any other Subsidiary, provided that
loans (other than Exempted Intercompany Investments) from the Borrowers
and the Subsidiary Loan Parties pursuant to this paragraph (d) to
Subsidiaries that are not Loan Parties shall not exceed the Available
Intercompany Investment Amount at the time of the making of each such
intercompany loan;
(e) (i) loans and advances to employees of Holdings,
Intermediate Holdings, the U.S. Borrower or the Subsidiaries in the
ordinary course of business not to exceed $10,000,000 in the aggregate at
any time outstanding (calculated without regard to write-downs or
write-offs thereof) and (ii) advances of payroll payments and expenses to
employees in the ordinary course of business;
(f) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or
limit loss;
(g) Swap Agreements permitted pursuant to Section 6.13;
(h) Investments existing on the Restatement Effective Date and
set forth on Schedule 6.04(h);
(i) investments resulting from pledges and deposits referred
to in Sections 6.02(e) and (f);
(j) investments constituting Permitted Business Acquisitions;
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(k) additional investments may be made from time to time to
the extent made with proceeds of Equity Interests (excluding proceeds
received as a result of the exercise of Cure Rights pursuant to Section
7.03) of Holdings, which proceeds or investments in turn are contributed
to Intermediate Holdings and in turn to the U.S. Borrower;
(l) (i) Guarantees by the U.S. Borrower and (ii) Guarantees
constituting Indebtedness permitted by Sections 6.01(g), (m), (n) and (o),
provided that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Loan Parties that is Guaranteed (other than
Exempted Intercompany Investments) by the Borrowers and the Subsidiary
Loan Parties pursuant to this paragraph (l) shall not exceed the Available
Intercompany Investment Amount at the time of the provision of each such
Guarantee;
(m) investments arising as a result of the Permitted
Receivables Financing;
(n) the Transactions;
(o) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with
or judgments against, customers and suppliers, in each case in the
ordinary course of business;
(p) investments of a Subsidiary acquired after the Restatement
Effective Date or of a corporation merged into the U.S. Borrower or merged
into or consolidated with a Subsidiary in accordance with Section 6.05
after the Restatement Effective Date to the extent that such investments
were not made in contemplation of or in connection with such acquisition,
merger or consolidation and were in existence on the date of such
acquisition, merger or consolidation;
(q) Guarantees by the Borrowers and the Subsidiaries of leases
(other than Capital Lease Obligations) or of other obligations that do not
constitute Indebtedness, in each case entered into by any Subsidiary in
the ordinary course of business;
(r) the Intermediate Holdings Loan;
(s) other investments by the U.S. Borrower and the
Subsidiaries in an aggregate amount (valued at the time of the making
thereof, and without giving effect to any
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write-downs or write-offs thereof) that at the time of, and after giving
effect to, the making thereof would not exceed 5% of Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the date
of such investment for which financial statements have been delivered
pursuant to Section 5.04 (plus any return of capital actually received by
the respective investors in respect of investments theretofore made by
them pursuant to this paragraph (s));
(t) investments by the U.S. Borrower or any of its
Subsidiaries in Fortuna; provided that (i)(A) the proceeds of such
investments are used for the sole purpose of paying claims covered by
insurance coverage provided by Fortuna to the U.S. Borrower and its
Subsidiaries and (B) the aggregate amount of any such investments shall
not exceed an amount equal to (1) the aggregate amount of claims then
owing by Fortuna pursuant to insurance coverage provided to the U.S.
Borrower and its Subsidiaries by Fortuna less (2) the sum of (x) the
aggregate amount of cash reserves then held by Fortuna and (y) the
aggregate amount of Indebtedness then owed to Fortuna by the U.S. Borrower
and its Subsidiaries or (ii) such investment is required by applicable law
or Governmental Authority; and
(u) investments resulting from the conversion into equity, or
other reduction, of up to (euro)150,000,000 in aggregate principal amount
of the Foreign Acquiror Loan made by Xxxxx to Automotive Holdings
(France), S.A.S.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any part of its assets (whether now owned or hereafter acquired), or issue,
sell, transfer or otherwise dispose of any Equity Interests of Intermediate
Holdings, the U.S. Borrower or any Subsidiary or preferred equity interests of
Holdings, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that this Section shall not prohibit:
(a) (i) the purchase and sale of inventory in the ordinary
course of business by the U.S. Borrower or any Subsidiary, (ii) the
acquisition of any other asset in the ordinary course of business by the
U.S. Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or
worn out equipment or other property in the ordinary course of business by
the U.S. Borrower or any Subsidiary or (iv) the
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sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be
continuing, (i) the merger of Intermediate Holdings (or the surviving
entity of any merger of Intermediate Holdings and Holdings) with the U.S.
Borrower, (ii) the merger of Intermediate Holdings (or the surviving
entity of any merger of Intermediate Holdings and the U.S. Borrower) with
Holdings, (iii) the merger of any Subsidiary into a Borrower in a
transaction in which such Borrower is the surviving corporation, (iv) the
merger or consolidation of any Subsidiary into or with any Subsidiary Loan
Party in a transaction in which the surviving or resulting entity is a
Subsidiary Loan Party (which shall be a Domestic Subsidiary Loan Party if
any party to such merger or consolidation shall be a domestic Subsidiary)
and, in the case of each of clauses (iii) and (iv), no person other than a
Borrower or Subsidiary Loan Party receives any consideration, (v) the
merger or consolidation of any Subsidiary that is not a Subsidiary Loan
Party into or with any other Subsidiary that is not a Subsidiary Loan
Party or (vi) the liquidation or dissolution of any Subsidiary (other than
a Borrower) if the U.S. Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the U.S. Borrower
and is not materially disadvantageous to the Lenders;
(c) sales, transfers, leases or other dispositions to the U.S.
Borrower or a Subsidiary (upon voluntary liquidation or otherwise);
provided that any sales, transfers, leases or other dispositions by a Loan
Party to a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.07;
(d) Sale and Lease-Back Transactions permitted by Section
6.03;
(e) investments expressly permitted by Section 6.04;
(f) the purchase, sale or other transfer of accounts
receivable and related assets pursuant to the Permitted Receivables
Financing;
(g) the sale of defaulted receivables in the ordinary course
of business and not as part of an accounts receivables financing
transaction;
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(h) sales, transfers, leases or other dispositions of assets
not otherwise permitted by this Section 6.05 (other than the note
evidencing or any right to payment in respect of the Intermediate Holdings
Loan or the Xxxxx Loan), provided that such sale does not constitute a
sale of all or substantially all the assets of Holdings, Intermediate
Holdings, the U.S. Borrower and the Subsidiaries, taken as a whole;
(i) any merger or consolidation in connection with a Permitted
Business Acquisition, provided that following any such merger or
consolidation (i) involving a Borrower, such Borrower is the surviving
corporation, (ii) involving a domestic Subsidiary, the surviving or
resulting entity shall be a Domestic Subsidiary Loan Party that is a
Wholly Owned Subsidiary and (iii) involving a Foreign Subsidiary, the
surviving or resulting entity shall be a Foreign Subsidiary Loan Party
that is a Wholly Owned Subsidiary; and
(j) licensing and cross-licensing arrangements involving any
technology or other intellectual property of the U.S. Borrower or a
Subsidiary in the ordinary course of business.
Notwithstanding anything to the contrary contained above, (i) Holdings shall at
all times own, directly or indirectly, 100% of the Equity Interests of
Intermediate Holdings (or the surviving entity in any merger of Intermediate
Holdings and the U.S. Borrower pursuant to Section 6.05(b)), unless and until
such time as Intermediate Holdings (or such surviving entity) is merged with
Holdings pursuant to Section 6.05(b), (ii) Intermediate Holdings (or the
surviving entity in any merger of Intermediate Holdings and Holdings pursuant to
Section 6.05(b)) shall at all times own, directly or indirectly, 100% of the
Equity Interests of the U.S. Borrower, unless and until such time as
Intermediate Holdings (or such surviving entity) is merged with the U.S.
Borrower pursuant to Section 6.05(b), (iii) each Foreign Subsidiary Borrower and
Xxxxx shall be a Wholly Owned Subsidiary, (iv) no sale, transfer or other
disposition of assets shall be permitted by this Section 6.05 (other than sales,
transfers, leases or other dispositions to Loan Parties pursuant to paragraph
(c) hereof) unless such disposition is for fair market value, (v) no sale,
transfer or other disposition of assets shall be permitted by paragraphs (a) or
(d) of this Section 6.05 unless such disposition is for at least 75% cash
consideration and (vi) no sale, transfer or other disposition of assets in
excess of $10,000,000 shall be permitted by paragraph (h) of this Section 6.05
unless such disposition is
177
for at least 75% cash consideration; provided, however, that for purposes of
clause (vi) of this sentence, (A) the assumption by the transferee of
liabilities associated with the assets subject to any sale, transfer or other
disposition shall not be deemed to be consideration paid in respect of such
assets and (B) any Designated Non-Cash Consideration received by the U.S.
Borrower or any Subsidiary in respect of any such sale, transfer or other
disposition (valued at the time of receipt thereof, and without giving effect to
any write-downs or write-offs thereof) having an aggregate fair market value,
taken together with all other Designated Non-Cash Consideration previously
applied pursuant to this clause (B) less the Net Proceeds of any subsequent sale
of any such Designated Non-Cash Consideration, not to exceed the greater of (x)
2.5% of Consolidated Total Assets as of the end of the fiscal quarter
immediately prior the date of such sale, transfer or other disposition for which
financial statements have been delivered pursuant to Section 5.04 and (y)
$100,000,000, shall be deemed to constitute "cash consideration" received in
respect of such sale, transfer or other disposition.
SECTION 6.06. Dividends and Distributions. Declare or pay, directly
or indirectly, any dividend or make any other distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, with respect to any of its Equity Interests (other than dividends and
distributions on Holdings Common Stock payable solely by the issuance of
additional shares of Holdings Common Stock) or directly or indirectly redeem,
purchase, retire or otherwise acquire for value (or permit any Subsidiary to
purchase or acquire) any shares of any class of its Equity Interests or set
aside any amount for any such purpose; provided, however, that:
(a) any Subsidiary may declare and pay dividends to, repurchase its
Equity Interests from or make other distributions to the U.S. Borrower or to any
Wholly Owned Subsidiary (or, in the case of non-Wholly Owned Subsidiaries, to
the U.S. Borrower or any Subsidiary and to each other owner of Equity Interests
of such Subsidiary on a pro rata basis (or more favorable basis from the
perspective of the U.S. Borrower or such Subsidiary) based on their relative
ownership interests);
(b) the U.S. Borrower may declare and pay dividends or make other
distributions to Intermediate Holdings (which may, in turn, declare and pay
dividends or make other distributions to Holdings, in an amount equal to the
dividends and distributions received by Intermediate Holdings) in respect of (i)
overhead, tax liabilities of Holdings and Intermediate Holdings, legal,
accounting and other professional fees and expenses, (ii) fees and expenses
related to any equity offering, investment or acquisition permitted hereunder
(whether or not successful) and
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(iii) other fees and expenses in connection with the maintenance of its
existence and its ownership of the U.S. Borrower or Intermediate Holdings, as
applicable, and in order to permit Holdings to make payments permitted by
Sections 6.07(b) and (c);
(c) Holdings may purchase or redeem (and the U.S. Borrower may
declare and pay dividends or make other distributions to Intermediate Holdings,
the proceeds of which are used by Intermediate Holdings to pay dividends or make
other distributions to Holdings, the proceeds of which are used so to purchase
or redeem) Equity Interests of Holdings (including related stock appreciation
rights or similar securities) held by then present or former directors,
consultants, officers or employees of Holdings, the U.S. Borrower or any of the
Subsidiaries or by any Plan upon such person's death, disability, retirement or
termination of employment or under the terms of any such Plan or any other
agreement under which such shares of stock or related rights were issued,
provided that the aggregate amount of such purchases or redemptions under this
paragraph (c) shall not exceed in any fiscal year $7,500,000 (plus the amount of
net proceeds received by Holdings during such calendar year from sales of Equity
Interests of Holdings to directors, consultants, officers or employees of
Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary in
connection with permitted employee compensation and incentive arrangements)
which, if not used in any year, may be carried forward to any subsequent
calendar year;
(d) this Section 6.06 shall not prohibit noncash repurchases of
Equity Interests that are deemed to occur upon exercise of stock options if such
Equity Interests represent a portion of the exercise price of such options; and
(e) Holdings may purchase or redeem, or declare and pay dividends or
make other distributions in respect of (and the U.S. Borrower may declare and
pay dividends or make other distributions to Intermediate Holdings, the proceeds
of which are used by Intermediate Holdings to pay dividends or make other
distributions to Holdings, the proceeds of which are used by Holdings so to
purchase or redeem, or pay such dividends or make such other distributions in
respect of) Equity Interests of Holdings (including the purchase or redemption
of related stock appreciation rights or similar securities with respect to such
Equity Interests) (i) in the event the Leverage Ratio as of the last day of the
most recently ended fiscal quarter prior to the date of such payment for which
financial statements have been delivered pursuant to Section 5.04 is greater
than or equal to 3.0 to 1.0, in the amount not to exceed the Dividend Payment
Amount at the time of such payment and (ii) in the event the
179
Leverage Ratio as of the last day of the most recently ended fiscal quarter
prior to the date of such payment for which financial statements have been
delivered pursuant to Section 5.04 is less than 3.0 to 1.0, (A) in an aggregate
amount not to exceed (x) $200,000,000 minus (y) the aggregate amount of
purchases, redemptions, dividends and distributions previously made pursuant to
this clause (A) and (B) in an aggregate amount not to exceed the Cumulative Net
Income Amount at the time of such payment, provided that, in the case of any
dividend or distribution pursuant to this paragraph (e), no Default or Event of
Default shall have occurred and be continuing or would result therefrom.
Notwithstanding anything to the contrary herein, (i) in the event of
any merger of the U.S. Borrower into Intermediate Holdings pursuant to Section
6.05(b)(i), any dividend or distribution permitted to be made under this Section
6.08 to the U.S. Borrower may be made to Intermediate Holdings, (ii) in the
event of any merger of Intermediate Holdings into Holdings pursuant to Section
6.05(b)(ii), any dividend or distribution permitted to be made under this
Section 6.08 to Intermediate Holdings (including pursuant to clause (i) of this
paragraph) may be made to Holdings and (iii) in the event of any merger of the
surviving entity of any merger of the U.S. Borrower and Intermediate Holdings
with Holdings pursuant to Section 6.05(b)(ii), any dividend permitted to be made
under this Section 6.08 to the U.S. Borrower may be made to Holdings.
SECTION 6.07. Transactions with Affiliates. (a) Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transaction with, any of its Affiliates or any
known direct or indirect holder of 10% or more of any class of capital stock of
Holdings, unless such transaction is (i) otherwise permitted (or required) under
this Agreement (including in connection with the Permitted Receivables Financing
and the Intermediate Holdings Loan) and (ii) upon terms no less favorable to
Holdings, Intermediate Holdings, the U.S. Borrower or such Subsidiary, as
applicable, than would be obtained in a comparable arm's-length transaction with
a person that is not an Affiliate; provided that this clause (ii) shall not
apply to (A) the payment to the Fund of the monitoring and management fees
referred to in paragraph (c) below or (B) the indemnification of directors of
Holdings, Intermediate Holdings, the U.S. Borrower and the Subsidiaries in
accordance with customary practice.
(b) The foregoing paragraph (a) shall not prohibit, to the extent
otherwise permitted under this Agreement, (i) any issuance of securities, or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans
180
approved by the board of directors of Holdings, (ii) loans or advances to
employees of Holdings, the U.S. Borrower or any of the Subsidiaries in
accordance with Section 6.04(e), (iii) transactions among the Borrowers and the
Subsidiary Loan Parties and transactions among the Subsidiary Loan Parties
otherwise permitted by this Agreement, (iv) the payment of fees and indemnities
to directors, officers and employees of Holdings, Intermediate Holdings, the
U.S. Borrower and the Subsidiaries in the ordinary course of business, (v)
transactions pursuant to permitted agreements in existence on the Restatement
Effective Date and set forth on Schedule 6.07 or any amendment thereto to the
extent such amendment is not adverse to the Lenders in any material respect,
(vi) any employment agreements entered into by any of the U.S. Borrower or any
of the Subsidiaries in the ordinary course of business, (vii) dividends,
redemptions and repurchases permitted under Section 6.06, (viii) any purchase by
the Fund or any Fund Affiliate of Equity Interests of Holdings or any purchase
by Intermediate Holdings of Equity Interests of the U.S. Borrower or any
contribution by Intermediate Holdings to the equity capital of the U.S.
Borrower, provided that any Equity Interests of the U.S. Borrower purchased by
Intermediate Holdings shall be pledged to the Collateral Agent on behalf of the
Lenders pursuant to the U.S. Collateral Agreement, (ix) payments by Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries to the Fund
or any Fund Affiliate made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking activities,
including in connection with acquisitions or divestitures, which payments are
approved by the majority of the board of directors of Holdings, in good faith,
(x) subject to paragraph (c) below, the existence of, or the performance by
Holdings, the U.S. Borrower or any of the Subsidiaries of its obligations under
the terms of, the Purchase Agreement, or any agreement contemplated thereunder
to which it is a party as of the Closing Date; provided, however, that the
existence of, or the performance by Holdings, Intermediate Holdings, the U.S.
Borrower or any Subsidiary of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Closing
Date shall only be permitted by this clause (x) to the extent that the terms of
any such amendment or new agreement are not otherwise disadvantageous to the
Lenders in any material respect, (xi) transactions with Wholly Owned
Subsidiaries for the purchase or sale of automotive goods, products, parts and
services entered into in the ordinary course of business in a manner consistent
with past practice, (xii) any transaction in respect of which the U.S. Borrower
delivers to the Administrative Agent (for delivery to the Lenders) a letter
addressed to the Board of Directors of the U.S. Borrower or of the applicable
Subsidiary from an accounting, appraisal or investment banking
181
firm, in each case of nationally recognized standing that is (A) in the good
faith determination of the U.S. Borrower qualified to render such letter and (B)
satisfactory to the Administrative Agent, which letter states that such
transaction is on terms that are no less favorable to the U.S. Borrower or such
Subsidiary, as applicable, than would be obtained in a comparable arm's-length
transaction with a person that is not an Affiliate or (xiii) subject to
paragraph (c) below, the payment of all fees, expenses, bonuses and awards
related to the transactions contemplated by the Purchase Agreement, including
fees to the Fund or any Fund Affiliate.
(c) Make any payment of or on account of monitoring or management or
similar fees payable to the Fund or any Fund Affiliate in an aggregate amount in
any fiscal year in excess of $7,500,000 (plus reasonable expenses in connection
therewith).
SECTION 6.08. Business of Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries. Engage at any time in any business or business
activity other than (a) in the case of the U.S. Borrower and the Subsidiaries
(other than the Subsidiary specified in clause (d) below), any business or
business activity conducted by it on the Restatement Effective Date and any
business or business activities incidental or related thereto, or any business
or activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, (b) in the case of
Intermediate Holdings, (i) ownership of the Equity Interests in the U.S.
Borrower, together with activities directly related thereto (unless the U.S.
Borrower is merged into Intermediate Holdings, in which case Intermediate
Holdings may engage in the activities described in clause (a) of this Section
6.08), (ii) performance of its obligations under and in connection with the Loan
Documents, the Intermediate Holdings Loan, the Purchase Agreement, the Senior
Note Documents and the Senior Subordinated Note Documents, (iii) actions
incidental to the consummation of the Restatement Transactions, (iv) the
Guarantees permitted pursuant to Sections 6.01(g), (m), (n) and (o), (v) actions
required by law to maintain its existence and (vi) actions expressly permitted
to be taken by Intermediate Holdings pursuant to the terms of this Agreement,
(c) in the case of Holdings, (i) the ownership of the Equity Interests in
Intermediate Holdings, together with activities directly related thereto (unless
Intermediate Holdings is merged into Holdings, in which case Holdings may engage
in the activities described in clause (b) of this Section 6.08 and, in the event
the U.S. Borrower has previously merged into Intermediate Holdings, the
activities described in clause (a) of this Section 6.08), (ii) performance of
its obligations under and in connection with
182
the Loan Documents, the Purchase Agreement, the Stockholders Agreement, the
other agreements contemplated by the Purchase Agreement, the Senior Note
Documents and the Senior Subordinated Note Documents, (iii) actions incidental
to the consummation of the Restatement Transactions, (iv) the Guarantees
permitted pursuant to Sections 6.01(g), (m), (n) and (o), (v) actions required
by law to maintain its existence, (vi) actions incidental to the consummation of
any Public Offering or any ordinary course grant of common stock to employees
and directors pursuant to the terms of any employee benefit or stock option
plan, including, in each case, the offering, issuance and sale of its common
stock and the payment of customary transaction costs and expenses in connection
therewith (other than any payments to any Affiliate of Holdings) and (vii)
actions expressly permitted to be taken by Holdings pursuant to the terms of
this Agreement and (d) in the case of Fortuna, operating as a captive insurance
company that provides insurance coverage solely for the benefit of the U.S.
Borrower and the Subsidiaries.
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. (a) Amend or modify in any manner materially adverse to the
Lenders, or grant any waiver or release under or terminate in any manner (if
such granting or termination shall be materially adverse to the Lenders), the
articles or certificate of incorporation or by-laws or partnership agreement or
limited liability company operating agreement of Holdings, Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries, the Purchase Agreement
and the Stockholders Agreement.
(b) (i) Make, or agree or offer to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on the Senior
Notes, the Senior Subordinated Notes, any Permitted Notes Refinancing
Indebtedness or the Intermediate Holdings Loan, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of the Senior Notes, the
Senior Subordinated Notes, any Permitted Notes Refinancing Indebtedness or the
Intermediate Holdings Loan, except (A) payments of regularly scheduled interest
and principal payments as and when due in respect thereof, other than payments
in respect of the Senior Subordinated Notes or any Permitted Notes Refinancing
Indebtedness in respect of the Senior Subordinated Notes prohibited by the
subordination provisions thereof, (B) payments of the Senior Notes and the
Senior Subordinated Notes in connection with the issuance of any Permitted Notes
Refinancing
183
Indebtedness, (C) the redemption of Senior Notes, Senior Subordinated Notes or
Permitted Notes Refinancing Indebtedness in accordance with the terms of the
Senior Note Documents or Senior Subordinated Note Documents, or the definitive
documentation for any such Permitted Notes Refinancing Indebtedness, as
applicable, with Public Offering Net Proceeds from one or more Public Offerings,
provided that (1) the aggregate amount of each series of Senior Notes, Senior
Subordinated Notes and Permitted Notes Refinancing Indebtedness redeemed
pursuant to this clause (C) may not exceed 35% of the aggregate principal amount
of the Senior Notes and Senior Subordinated Notes outstanding on the Second
Restatement Effective Date and (2) such redemption occurs within 90 days of the
date of consummation of the relevant Public Offering, (D) the purchase,
redemption, retirement or other acquisition of the Intermediate Holdings Loan in
accordance with its terms with Public Offering Net Proceeds and (E) (1) the
purchase, redemption, retirement or other acquisition of Senior Notes, Senior
Subordinated Notes and any Permitted Notes Refinancing Indebtedness in an
aggregate amount not to exceed (x) $200,000,000 minus (y) the aggregate amount
of purchases, redemptions, retirements and acquisitions previously made pursuant
to this clause (1) and (2) the purchase, redemption, retirement or other
acquisition of Senior Notes, Senior Subordinated Notes and any Permitted Notes
Refinancing Indebtedness in an aggregate amount not to exceed the Cumulative Net
Income Amount at the time of such payment, provided that, with respect to
clauses (C), (D) and (E), at the time of the applicable payment, no Default or
Event of Default shall have occurred and be continuing or would result
therefrom; or
(ii) amend or modify, or permit the amendment or modification of,
any provision of the Xxxxx Loan, the Newco UK Loan, the Intermediate Holdings
Loan, any Senior Note, any Senior Subordinated Note, any Permitted Notes
Refinancing Indebtedness, any Xxxxx Note, any Foreign Acquiror Loan, any
Permitted Receivables Document, any Permitted Xxxxx Refinancing Indebtedness or
any agreement (including any Senior Notes Document or Senior Subordinated Notes
Document) relating thereto, other than amendments or modifications that are not
in any manner materially adverse to Lenders and that do not affect the
subordination provisions thereof (if any) in a manner adverse to the Lenders,
provided that (A) up to (euro)150,000,000 in aggregate principal amount of the
Foreign Acquiror Loan made by Xxxxx to Automotive Holdings (France), S.A.S. may
be converted to equity or otherwise reduced and (B) the principal amount of any
of the Xxxxx Loan, the Newco UK Loan and any Foreign Acquiror Loan may be
converted into equity or otherwise reduced to the extent permitted by Section
6.04.
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(c) Permit any Subsidiary to enter into any agreement or instrument
that by its terms restricts (i) the payment of dividends or distributions or the
making of cash advances by such Subsidiary to the U.S. Borrower or any
Subsidiary that is a direct or indirect parent of such Subsidiary or (ii) the
granting of Liens by such Subsidiary pursuant to the Security Documents, in each
case other than those arising under any Loan Document, except, in each case,
restrictions existing by reason of: (A) restrictions imposed by applicable law;
(B) contractual encumbrances or restrictions in effect on the Closing Date under
(x) any Senior Note Document, any Senior Subordinated Note Document or any
Permitted Receivables Document or (y) any agreements related to any permitted
renewal, extension or refinancing of any Indebtedness existing on the Closing
Date that does not expand the scope of any such encumbrance or restriction; (C)
any restriction on a Subsidiary imposed pursuant to an agreement entered into
for the sale or disposition of all or substantially all the Equity Interests or
assets of a Subsidiary pending the closing of such sale or disposition; (D)
customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures entered into in the ordinary course of business;
(E) any restrictions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement to the extent that such restrictions apply only to
the property or assets securing such Indebtedness; (F) customary provisions
contained in leases or licenses of intellectual property and other similar
agreements entered into in the ordinary course of business; and (G) customary
restrictions imposed on a Foreign Subsidiary that is not a Loan Party by any
agreement relating to Indebtedness of such Foreign Subsidiary permitted by this
Agreement.
SECTION 6.10. [Intentionally Omitted.]
185
SECTION 6.11. Interest Coverage Ratio. Permit the ratio (the
"Interest Coverage Ratio") on the last day of any fiscal quarter occurring in
any period set forth below, for the four quarter period ended as of such day of
(a) EBITDA to (b) Cash Interest Expense to be less than the ratio set forth
below for such period; provided that to the extent any Asset Disposition or any
Permitted Business Acquisition (or any similar transaction or transactions for
which a waiver or a consent of the Required Lenders pursuant to Section 6.05 has
been obtained) has occurred during the relevant Test Period, the Interest
Coverage Ratio shall be determined for the respective Test Period on a Pro Forma
Basis for such occurrences:
TEST PERIOD ENDING ON: RATIO:
-------------------------- ---------
September 30, 2004 2.50:1.00
December 31, 2004 2.50:1.00
March 31, 2005 2.50:1.00
June 30, 2005 2.50:1.00
September 30, 2005 2.50:1.00
December 31, 2005 2.50:1.00
March 31, 2006 2.50:1.00
June 30, 2006 2.75:1.00
September 30, 2006 2.75:1.00
December 31, 2006 3.00:1.00
March 31, 2007 3.00:1.00
June 30, 2007 3.25:1.00
and thereafter
SECTION 6.12. Leverage Ratio. Permit the Leverage Ratio on the last
day of any fiscal quarter occurring in any period set forth below, to be in
excess of the ratio set forth below for such period:
TEST PERIOD ENDING ON: RATIO:
-------------------------- ---------
September 30, 2004 4.60:1.00
December 31, 2004 4.60:1.00
March 31, 2005 4.60:1.00
June 30, 2005 4.20:1.00
September 30, 2005 4.20:1.00
December 31, 2005 4.00:1.00
March 31, 2006 4.00:1.00
June 30, 2006 3.70:1.00
September 30, 2006 3.70:1.00
December 31, 2006 3.50:1.00
March 31, 2007 3.50:1.00
June 30, 2007 3.00:1.00
and thereafter
186
SECTION 6.13. Swap Agreements. Enter into any Swap Agreement, other
than (a) Swap Agreements required by any Permitted Receivables Financing, (b)
Swap Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the U.S. Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities and (c) Swap
Agreements entered into in order to effectively cap, collar or exchange interest
rates (from fixed to floating rates, from one floating rate to another floating
rate or otherwise) with respect to any interest-bearing liability or investment
of the U.S. Borrower or any Subsidiary.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. In case of the happening of any of
the following events ("Events of Default"):
(a) any representation or warranty made or deemed made by Holdings,
Intermediate Holdings, U.S. Borrower or any other Loan Party in any Loan
Document, or any representation, warranty, statement or information contained in
any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false
or misleading in any material respect when so made, deemed made or furnished by
Holdings, Intermediate Holdings, the U.S. Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any
Loan, any Ancillary Credit Extension or the reimbursement with respect to any
L/C Disbursement when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan, any Ancillary Credit Extension or on any L/C Disbursement or in the
payment of any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due and
payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance by
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries of
any covenant, condition or agreement contained in Section 5.01(a) (with respect
to a Borrower), 5.05(a), 5.08, 5.10(d), 5.15(c) or in Article VI;
187
(e) default shall be made in the due observance or performance by
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries of
any covenant, condition or agreement contained in any Loan Document (other than
those specified in paragraphs (b), (c) and (d) above) and such default shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the U.S. Borrower;
(f) (i) any event or condition occurs that (A) results in any
Material Indebtedness becoming due prior to its scheduled maturity or (B)
enables or permits (with all applicable grace periods having expired) the holder
or holders of any Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity or (ii) any Borrower or any Subsidiary shall fail to pay the principal
of any Material Indebtedness at the stated final maturity thereof, provided that
this clause (f) shall not apply to (x) secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness or (y) a breach of the Xxxxx Notes so
long as an Acceptable Letter of Credit has been issued in respect of such breach
prior to the Required Issuance Date and such Acceptable Letter of Credit remains
in effect or has ceased to be in effect as a result of a drawing thereof;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, Intermediate Holdings, any Borrower or any of the
Subsidiaries, or of a substantial part of the property or assets of Holdings,
Intermediate Holdings, any Borrower or any of the Subsidiaries, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, Intermediate Holdings, any
Borrower or any of the Subsidiaries or for a substantial part of the property or
assets of Holdings, Intermediate Holdings, any Borrower or any of the
Subsidiaries or (iii) the winding-up or liquidation of Holdings, Intermediate
Holdings, any Borrower or any of the Subsidiaries (other than in a transaction
permitted by Section 6.05); and such proceeding or petition shall continue
undismissed for 60 days or an order or
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decree approving or ordering any of the foregoing shall be entered;
(i) Holdings, Intermediate Holdings, any Borrower or any of the
Subsidiaries shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or the filing
of any petition described in paragraph (h) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for Holdings, Intermediate Holdings, the U.S. Borrower or any
of the Subsidiaries or for a substantial part of the property or assets of
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(j) the failure by Holdings, Intermediate Holdings, the U.S.
Borrower or any Subsidiary to pay one or more final judgments aggregating in
excess of $50,000,000, which judgments are not discharged or effectively waived
or stayed for a period of 30 consecutive days, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of Holdings,
Intermediate Holdings, the U.S. Borrower or any Subsidiary to enforce any such
judgment;
(k) (i) a Reportable Event or Reportable Events shall have occurred
with respect to any Plan or a trustee shall be appointed by a United States
district court to administer any Plan, (ii) the PBGC shall institute proceedings
(including giving notice of intent thereof) to terminate any Plan or Plans,
(iii) Holdings, Intermediate Holdings, the U.S. Borrower, any Subsidiary or any
ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred or will be assessed Withdrawal Liability to such
Multiemployer Plan and such person does not have reasonable grounds for
contesting such Withdrawal Liability or is not contesting such Withdrawal
Liability in a timely and appropriate manner, (iv) Holdings, Intermediate
Holdings, the U.S. Borrower, any Subsidiary or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, (v) Holdings, Intermediate Holdings, the U.S.
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Borrower, any Subsidiary or any ERISA Affiliate shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan or (vi) any other similar event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect;
(l) (i) any Loan Document shall for any reason be asserted by
Holdings, Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries
not to be a legal, valid and binding obligation of any party thereto, (ii) any
security interest purported to be created by any Security Document and to extend
to assets that are not immaterial to Holdings, Intermediate Holdings, the U.S.
Borrower and the Subsidiaries on a consolidated basis shall cease to be, or
shall be asserted by the U.S. Borrower or any other Loan Party not to be, a
valid and perfected security interest (having the priority required by this
Agreement or the relevant Security Document) in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates actually delivered to it representing
securities pledged under the Collateral Agreements or to file Uniform Commercial
Code continuation statements and except to the extent that such loss is covered
by a lender's title insurance policy and the Administrative Agent shall be
reasonably satisfied with the credit of such insurer, (iii) the Guarantees
pursuant to the Security Documents by Holdings, Intermediate Holdings or the
Subsidiary Loan Parties of any of the Obligations shall cease to be in full
force and effect (other than in accordance with the terms thereof), or shall be
asserted by Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding obligations
or (iv) the Obligations of the Borrowers or the Guarantees thereof by Holdings,
Intermediate Holdings and the Subsidiary Loan Parties pursuant to the Security
Documents shall cease to constitute senior indebtedness under the subordination
provisions of the Senior Subordinated Note Documents or such subordination
provisions shall be invalidated or otherwise cease, or shall be asserted by
Holdings, Intermediate Holdings, the U.S. Borrower or any Subsidiary to be
invalid or to cease, to be legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their terms;
then, and in every such event (other than an event with respect to a Borrower
described in paragraph (h) or (i) above), and at any time thereafter during the
continuance of such event, the
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Administrative Agent, at the request of the Required Lenders, shall, by notice
to the Borrowers, take any or all of the following actions, at the same or
different times: (i) terminate forthwith the Commitments, (ii) declare the Loans
then outstanding to be forthwith due and payable in whole or in part, whereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrowers accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding and (iii) demand cash collateral pursuant to Section
2.05(j); and in any event with respect to a Borrower described in paragraph (h)
or (i) above, the Commitments shall automatically terminate, the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder
and under any other Loan Document, shall automatically become due and payable
and the Administrative Agent shall be deemed to have made a demand for cash
collateral to the full extent permitted under Section 2.05(j), without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrowers, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely for the
purposes of determining whether a Default has occurred under clause (h) or (i)
of Section 7.01, any reference in any such clause to any Subsidiary shall be
deemed not to include any Subsidiary affected by any event or circumstance
referred to in any such clause that did not, as of the last day of the fiscal
quarter of the U.S. Borrower most recently ended, have assets with a value in
excess of 5.0% of the Consolidated Total Assets or 5.0% of total revenues of the
U.S. Borrower and the Subsidiaries as of such date, provided that if it is
necessary to exclude more than one Subsidiary from clause (h) or (i) of Section
7.01 pursuant to this Section 7.02 in order to avoid an Event of Default
thereunder, all excluded Subsidiaries shall be considered to be a single
consolidated Subsidiary for purposes of determining whether the condition
specified above is satisfied.
SECTION 7.03. U.S. Borrower's Right to Cure. (a) Financial
Performance Covenants. Notwithstanding anything to the contrary contained in
Section 7.01, in the event that the U.S. Borrower fails to comply with the
requirements of any Financial Performance Covenant, until the expiration of the
10th day subsequent to the date the certificate calculating such Financial
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Performance Covenant is required to be delivered pursuant to Section 5.04(c),
Holdings (or the surviving entity in any merger of Holdings permitted under
Section 6.05(b)) shall have the right to issue Permitted Cure Securities for
cash or otherwise receive cash contributions to its capital, and, in each case,
if applicable, to contribute any such cash to the capital of Intermediate
Holdings (which shall contribute all such cash to the capital of the U.S.
Borrower) (collectively, the "Cure Right"), and upon the receipt by U.S.
Borrower of such cash (the "Cure Amount") pursuant to the exercise of such Cure
Right such Financial Performance Covenant shall be recalculated giving effect to
the following pro forma adjustments:
(i) EBITDA shall be increased, solely for the purpose of
measuring the Financial Performance Covenants and not for any other
purpose under this Agreement, by an amount equal to the Cure Amount;
and
(ii) If, after giving effect to the foregoing recalculations,
the U.S. Borrower shall then be in compliance with the requirements
of all Financial Performance Covenants, the U.S. Borrower shall be
deemed to have satisfied the requirements of the Financial
Performance Covenants as of the relevant date of determination with
the same effect as though there had been no failure to comply
therewith at such date, and the applicable breach or default of the
Financial Performance Covenants that had occurred shall be deemed
cured for this purposes of the Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, (a) in each four-fiscal-quarter period there shall be at
least one fiscal quarter in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four
consecutive fiscal quarters during which the Cure Right is not exercised and (c)
in each 12-month period, the sum of all Cure Amounts contributed to (or received
by) the U.S. Borrower pursuant to this Section 7.03 shall not exceed
$200,000,000.
ARTICLE VIII
The Agents
SECTION 8.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, (i) JPMorgan Chase Bank, N.A. is hereby
appointed to act as Administrative Agent, Collateral Agent and an Issuing Bank,
(ii) Bank of
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America, N.A. and Xxxxxxx Xxxxx Credit Partners L.P. are each hereby appointed
to act as a Co-Syndication Agent and (iii) Credit Suisse First Boston and The
Bank of Nova Scotia are each hereby appointed to act as a Co-Documentation
Agent. Each of the Lenders, each assignee of any such Lender and each Ancillary
Lender hereby irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender, assignee or Ancillary Lender and to exercise
such powers as are specifically delegated to the Administrative Agent by the
terms and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, each Ancillary Lender and
each Issuing Bank, without hereby limiting any implied authority, (a) to receive
on behalf of the Lenders and such Issuing Bank all payments of principal of and
interest on the Loans, all payments in respect of L/C Disbursements and all
other amounts due to the Lenders and such Issuing Bank hereunder, and promptly
to distribute to each Lender or such Issuing Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders and
each of the Ancillary Lenders of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with the performance of its duties as Administrative Agent hereunder;
and (c) to distribute to each Lender and each Ancillary Lender copies of all
notices, financial statements and other materials delivered by any Borrower
pursuant to this Agreement as received by the Administrative Agent. Without
limiting the generality of the foregoing, the Agents are hereby expressly
authorized to execute any and all documents (including releases) with respect to
the Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. In the event that any party other than the Lenders and the
Agents shall participate in all or any portion of the Collateral pursuant to the
Security Documents, all rights and remedies in respect of such Collateral shall
be controlled by the Collateral Agent.
(b) Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrowers or any other Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders or any Ancillary Lender for the due
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execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Loan Documents or other instruments or agreements. The
Agents shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders and all
the Ancillary Lenders. Each Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Agents nor any of their respective
directors, officers, employees or agents shall have any responsibility to any
Borrower or any other Loan Party or any other party hereto on account of the
failure, delay in performance or breach by, or as a result of information
provided by, any Lender, Ancillary Lender or Issuing Bank of any of its
obligations hereunder or to any Lender, Ancillary Lender or Issuing Bank on
account of the failure of or delay in performance or breach by any other Lender,
Ancillary Lender or Issuing Bank or any Borrower or any other Loan Party of any
of their respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each Agent may execute any and all duties
hereunder by or through agents or employees and shall be entitled to rely upon
the advice of legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by it in accordance with the advice of such counsel.
SECTION 8.02. Nature of Duties. The Lenders and the Ancillary
Lenders hereby acknowledge that no Agent shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders. The Lenders and the Ancillary Lenders further acknowledge and agree
that so long as an Agent shall make any determination to be made by it hereunder
or under any other Loan Document in good faith, such Agent shall have no
liability in respect of such determination to any person. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into the Loan Documents or otherwise exist against the Administrative Agent.
Each Lender recognizes and agrees that the Co-Syndication Agents and the
Co-Documentation Agents shall have no duties or responsibilities under this
Agreement or any other
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Loan Document, or any fiduciary relationship with any Lender or Ancillary
Lenders, and shall have no functions, responsibilities, duties, obligations or
liabilities for acting as the Co-Syndication Agents or as the Co-Documentation
Agents hereunder.
SECTION 8.03. Resignation by the Agents. Subject to the appointment
and acceptance of a successor Agent as provided below, any Agent may resign at
any time by notifying the Lenders and the U.S. Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
with the consent of the U.S. Borrower (not to be unreasonably withheld or
delayed). If no successor shall have been so appointed by the Required Lenders
and approved by the U.S. Borrower and shall have accepted such appointment
within 45 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Ancillary Lenders with
the consent of the U.S. Borrower (not to be unreasonably withheld or delayed),
appoint a successor Agent which shall be a bank with an office in New York, New
York and an office in London, England (or a bank having an Affiliate with such
an office) having a combined capital and surplus having a Dollar Equivalent that
is not less than $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
SECTION 8.04. Each Agent in its Individual Capacity. With respect to
the Loans made by it hereunder and Ancillary Facilities made available by it
pursuant to Section 2.22, each Agent in its individual capacity and not as Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not an Agent, and the Agents and their Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with any Borrower or any of the Subsidiaries or other Affiliates thereof as if
it were not an Agent.
SECTION 8.05. Indemnification. Each Lender and each Ancillary Lender
agrees (a) to reimburse the Agents, on demand, in the amount of its pro rata
share (based on its Commitments hereunder (or if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of its applicable outstanding Loans or participations in L/C Disbursements, as
applicable) of any reasonable expenses
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incurred for the benefit of the Lenders and Ancillary Lenders by the Agents,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders and Ancillary Lenders, which shall
not have been reimbursed by the Loan Parties and(b) to indemnify and hold
harmless each Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as Agent
or any of them in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted by it or any of them under
this Agreement or any other Loan Document, to the extent the same shall not have
been reimbursed by the Loan Parties, provided that no Lender or Ancillary Lender
shall be liable to an Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of such
Agent or any of its directors, officers, employees or agents.
SECTION 8.06. Lack of Reliance on Agents. Each Lender and each
Ancillary Lender acknowledges that it has, independently and without reliance
upon the Agents, any Lender or any Ancillary Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and each Ancillary Lender
also acknowledges that it will, independently and without reliance upon the
Agents, any other Lender or any Ancillary Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
SECTION 8.07. Designation of Affiliates for Foreign Currency Loans.
The Administrative Agent shall be permitted from time to time to designate one
of its Affiliates to perform the duties to be performed by the Administrative
Agent hereunder with respect to Loans and Borrowings denominated in Foreign
Currencies and Foreign Currency Letters of Credit. The provisions of this
Article VIII shall apply to any such Affiliate mutatis mutandis.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy, as
follows:
(i) if to any Borrower, to it at TRW Automotive Inc., 00000
Xxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention of Executive Vice
President and General Counsel (Telecopy No. (000) 000-0000), and if
to Holdings, to it in care of the U.S. Borrower, in each case with a
copy to The Blackstone Group, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxx Xxxxxx (Telecopy No. (000) 000-0000);
(ii) if to the Administrative Agent or the Collateral Agent,
to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 0000
Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention of Xxxxx Xxxxx
(Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Xxxxxxx Xxxxx (Telecopy No. (000) 000-0000);
(iii) if to an Issuing Bank other than the Administrative
Agent, to it at the address or telecopy number set forth separately
in writing;
(iv) if to any Ancillary Lender, to it at the address and
telecopy number set forth in the applicable Ancillary Facility
Document; and
(v) if such notice relates to a Global Revolving Facility
Borrowing denominated in a Foreign Currency, to the London
Administrative Office.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Applicable Agent and the applicable Lender. Each of the Administrative Agent,
the Collateral Agent and the U.S. Borrower (on behalf of itself and the Foreign
Subsidiary Borrowers) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided, further, that
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approval of such procedures may be limited to particular notices or
communications.
(c) All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service,
sent by telecopy or (to the extent permitted by paragraph (b) above) electronic
means or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the U.S. Borrower and the Loan Parties
herein, in the other Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders,
each Issuing Bank and each Ancillary Lender and shall survive the making by the
Lenders of the Loans, the execution and delivery of the Loan Documents and the
issuance of the Letters of Credit, regardless of any investigation made by such
persons or on their behalf, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or L/C Disbursement, any
extension of credit under Ancillary Facility remains outstanding or any Fee or
any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. Without prejudice to the survival of any
other agreements contained herein, indemnification and reimbursement obligations
contained herein (including pursuant to Sections 2.13, 2.15, 2.18 and 9.05)
shall survive the payment in full of the principal and interest hereunder, the
expiration of the Letters of Credit and the termination of the Commitments or
this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by Holdings, the U.S. Borrower and the Agents
and when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of Holdings, the
Borrowers, each Issuing Bank, the Agents
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and each Lender and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
other than pursuant to a merger permitted by Section 6.05(b) or 6.05(i), no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. 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 (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agents, each Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may 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 at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the U.S. Borrower; provided that no consent of the
U.S. Borrower shall be required for (1) an assignment of a
Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund or (2) if an Event of Default has occurred and is
continuing, an assignment of any Loan to any assignee
(provided that any liability of the Borrowers to an assignee
that is an Approved Fund or Affiliate of the assigning Lender
under Section 2.15, 2.17 or 2.21 shall be limited to the
amount, if any, that would have been payable thereunder by
such Borrower in the absence of such assignment); and
(B) the Administrative Agent; provided that no consent
of the Administrative Agent shall be required for an
assignment of a Term Loan to a Lender, an Affiliate of a
Lender or Approved Fund
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immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of
the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not
be less than (x) $5,000,000, in the case of Revolving Credit
Commitments, Revolving Loans denominated in Dollars, Tranche A
Term Loans and Tranche A-1 Term Loans, (y) the smallest amount
of the applicable Foreign Currency that is a multiple of
1,000,000 units of such Foreign Currency and has a Dollar
Equivalent in excess of $5,000,000, in the case of Tranche D-2
Term Loans and Global Revolving Facility Loans denominated in
a Foreign Currency and (z) $1,000,000, in the case of Tranche
B Term Loans, Tranche D-1 Term Loans, Tranche E Term Loans or
Loans in respect of any Incremental Extension of Credit,
unless each of the U.S. Borrower and the Administrative Agent
otherwise consent; provided that no such consent of the U.S.
Borrower shall be required if an Event of Default under
paragraph (b), (c), (h) or (i) of Section 7.01 has occurred
and is continuing;
(B) 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;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of
$3,500;
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire; and
(E) no assignment of Global Revolving
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Facility Loans or Global Revolving Facility Commitments shall
be permitted to be made to an assignee that cannot make Global
Revolving Facility Loans in Dollars and each of the Foreign
Currencies.
For purposes of this Section 9.04(b), the term "Approved Fund" shall
have the following meaning:
"Approved Fund" shall mean any person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by a Lender, an Affiliate of a Lender or an entity or an
Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all 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 2.15,
2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with
this Section 9.04 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 paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the U.S. Borrower, shall maintain at one of its offices a
copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans
and L/C Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the U.S. Borrower, the Agents,
each Issuing Bank and the
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Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the U.S. Borrower, any
Issuing Bank and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the U.S. Borrower,
the Administrative Agent, any Issuing Bank or any Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Agents, each Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement 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, modification or waiver
described in Section 9.04(a)(i) or clauses (i) (disregarding for this purpose
the parenthetical contained therein), (ii), (iii), (iv), (v) or (vi) of the
first proviso to Section 9.08(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, each of the Borrowers agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if
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it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.06 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the U.S.
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the U.S. Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Expenses; Indemnity. (a) The U.S. Borrower agrees to
pay all reasonable out-of-pocket expenses (including documentary Taxes) incurred
by the Agents in connection with the preparation of this Agreement and the other
Loan Documents, or by the Agents in connection with the syndication of the
Commitments or the administration of this Agreement (including expenses incurred
in connection with due diligence and initial and ongoing Collateral examination
to the extent incurred with the reasonable prior approval of the U.S. Borrower
and the reasonable fees, disbursements and the charges for no more than one
counsel in each jurisdiction where Collateral is located) or in connection with
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Agents, any Lender or any Ancillary Lender in connection with
the enforcement or protection of their rights in connection with this Agreement
and the other Loan Documents, in connection with the Loans made, the Ancillary
Facilities made available pursuant to Section 2.22 or the Letters of Credit
issued hereunder, including the reasonable fees,
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charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the
Administrative Agent and the Collateral Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel (including the reasonable allocated costs of internal counsel if a
Lender elects to use internal counsel in lieu of outside counsel) for the
Agents, any Issuing Bank, any Lender or any Ancillary Lender (but no more than
one such counsel for any Lender or any Ancillary Lender).
(b) The U.S. Borrower agrees to indemnify the Agents, each Issuing
Bank, each Lender, each Ancillary Lender and each of their respective directors,
trustees, officers, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto and thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated hereby,
(ii) the use of the proceeds of the Loans or the use of any Letter of Credit or
(iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses result primarily from
the gross negligence or wilful misconduct of such Indemnitee (treating, for this
purpose only, any Agent, any Issuing Bank, any Lender, any Ancillary Lender and
any of their respective Related Parties as a single Indemnitee). Subject to and
without limiting the generality of the foregoing sentence, the U.S. Borrower
agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel or consultant fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (A) any Environmental Claim related in any way
to Holdings, Intermediate Holdings, the U.S. Borrower or any of the
Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials on any Property or any property owned, leased or
operated by any predecessor of Holdings, Intermediate Holdings, the U.S.
Borrower or any of the Subsidiaries, provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a
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court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee or
any of its Related Parties. The provisions of this Section 9.05 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of any Agent, any Issuing Bank, any Lender or
any Ancillary Lender. All amounts due under this Section 9.05 shall be payable
on written demand therefor.
(c) Unless an Event of Default shall have occurred and be
continuing, the U.S. Borrower shall be entitled to assume the defense of any
action for which indemnification is sought hereunder with counsel of its choice
at its expense (in which case the U.S. Borrower shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by an
Indemnitee except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to each such Indemnitee. Notwithstanding the
U.S. Borrower's election to assume the defense of such action, each Indemnitee
shall have the right to employ separate counsel and to participate in the
defense of such action, and the U.S. Borrower shall bear the reasonable fees,
costs and expenses of such separate counsel, if (i) the use of counsel chosen by
the U.S. Borrower to represent such Indemnitee would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the U.S. Borrower and such Indemnitee and such
Indemnitee shall have reasonably concluded that there may be legal defenses
available to it that are different from or additional to those available to the
U.S. Borrower (in which case the U.S. Borrower shall not have the right to
assume the defense or such action on behalf of such Indemnitee); (iii) the U.S.
Borrower shall not have employed counsel reasonably satisfactory to such
Indemnitee to represent it within a reasonable time after notice of the
institution of such action; or (iv) the U.S. Borrower shall authorize such
Indemnitee to employ separate counsel at the U.S. Borrower's expense. The U.S.
Borrower will not be liable under this Agreement for any amount paid by an
Indemnitee to settle any claims or actions if the settlement is entered into
without the U.S. Borrower's consent, which consent may not be withheld or
delayed unless such settlement is unreasonable in light of such claims or
actions against, and defenses available to, such Indemnitee.
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(d) Notwithstanding anything to the contrary in this Section 9.05,
this Section 9.05 shall not apply to Taxes, it being understood that the U.S.
Borrower's only obligations with respect to Taxes shall arise under Sections
2.15 and 2.17.
SECTION 9.06. Right of Set-off. If an Event of Default shall have
occurred and be continuing, each Lender, each Issuing Bank and each Ancillary
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender, such Issuing Bank or such
Ancillary Lender to or for the credit or the account of Holdings, Intermediate
Holdings, the U.S. Borrower or any Subsidiary against any of and all the
obligations of Holdings or the U.S. Borrower now or hereafter existing under
this Agreement or any other Loan Document held by such Lender, such Issuing Bank
or such Ancillary Lender, irrespective of whether or not such Lender, such
Issuing Bank or such Ancillary Lender shall have made any demand under this
Agreement or such other Loan Document and although the obligations may be
unmatured. The rights of each Lender, each Issuing Bank and each Ancillary
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of set-off) that such Lender, such Issuing Bank or such
Ancillary Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agents, any Issuing Bank, any Lender or any Ancillary Lender in exercising any
right or power hereunder or under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, each Issuing Bank, the
Lenders and each Ancillary Lender hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by Holdings, Intermediate Holdings, any
Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or
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demand on Holdings, Intermediate Holdings, any Borrower or any other Loan Party
in any case shall entitle such person to any other or further notice or demand
in similar or other circumstances.
(b) Except as provided in Section 2.23 with respect to an
Incremental Facility Amendment or as provided in the definition of "Restatement
Effective Date", neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except (x) in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, Intermediate Holdings, the Borrowers and the Required
Lenders, (y) in the case of any Ancillary Facility Document, pursuant to an
agreement or agreements in writing entered into by each party thereto and (z) in
the case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by each party thereto and the Collateral Agent and
consented to by the Required Lenders; provided, however, that no such agreement
shall (i) decrease or forgive the principal amount of, or extend the final
maturity of, or decrease the rate of interest on, any Loan or any L/C
Disbursement, without the prior written consent of each Lender directly affected
thereby, (ii) increase or extend the Commitment of any Lender or decrease the
Commitment Fees or L/C Participation Fees or other fees of any Lender without
the prior written consent of such Lender, (iii) extend, waive or change the
amount due on any Installment Date or extend any date on which payment of
interest on any Loan or any L/C Disbursement is due, without the prior written
consent of each Lender adversely affected thereby, (iv) amend or modify the
provisions of Section 2.18(b) or (c) in a manner that would by its terms alter
the pro rata sharing of payments required thereby, without the prior written
consent of each Lender adversely affected thereby, (v) amend or modify the
provisions of this Section or the definition of "Required Lenders", "Majority
Lenders" or any other provision hereof specifying the number or percentage of
Lenders or Ancillary Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
prior written consent of each Lender or Ancillary Lender adversely affected
thereby (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Restatement Effective Date), (vi)
except as set forth in Section 5.15, release all or substantially all the
Collateral or release any of Holdings, Intermediate Holdings or any Subsidiary
Loan Party from its Guarantee under the U.S. Collateral Agreement or the Foreign
Guarantee, as applicable,
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unless, in the case of a Subsidiary Loan Party, all or substantially all the
Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of
in a transaction permitted by this Agreement, without the prior written consent
of each Lender adversely affected thereby, (vii) effect any waiver, amendment or
modification that by its terms adversely affects the rights in respect of
payments or collateral of Lenders participating in any Facility differently from
those of Lenders participating in other Facilities, without the consent of the
Majority Lenders participating in the adversely affected Facility, (viii) change
the relative rights in respect of payments or collateral of the Lenders
participating in different Facilities or Ancillary Facilities without the
consent of the Majority Lenders participating in each adversely affected
Facility and each adversely affected Ancillary Lender or (ix) amend or modify
the provisions of Section 5.15 or the definition of "Collateral Release Period"
without the prior written consent of each Lender adversely affected thereby;
provided, further, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or an Issuing Bank
hereunder without the prior written consent of the Administrative Agent or such
Issuing Bank acting as such at the effective date of such agreement, as
applicable. Each Lender shall be bound by any waiver, amendment or modification
authorized by this Section 9.08 and any consent by any Lender pursuant to this
Section 9.08 shall bind any assignee of such Lender.
Section 9.08A. Amendment Fees. If this Agreement is amended to
reduce or, upon the satisfaction of certain conditions, such amendment could
have the effect of reducing, the Applicable Margin applicable to (x) the Tranche
D Term Loans and such amendment becomes effective on or prior to the first
anniversary of the Second Restatement Effective Date or (y) the Tranche B Term
Loans and such amendment becomes effective on or prior to the first anniversary
of the Effective Funding Date (excluding a refinancing of all the Facilities
outstanding under this Agreement in connection with another transaction not
permitted by this Agreement (as determined prior to giving effect to any
amendment or waiver of this Agreement being adopted in connection with such
transaction)), then the U.S. Borrower agrees to pay to the Administrative Agent
for the account of each Lender holding Tranche D Term Loans or Tranche B Term
Loans, as applicable, (whether or not such Lender consents to such amendment) a
fee in an amount equal to 1.00% of such Lender's Tranche D Term Loans or Tranche
B Term Loans, as applicable, outstanding on the effective date of such
amendment. Notwithstanding Section 9.08(b), this Section 9.08A shall not be
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waived, amended or modified without the written consent of each Lender adversely
affected thereby.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges that are treated as interest under applicable law
(collectively, the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, any Ancillary Lender or any Issuing Bank, shall
exceed the maximum lawful rate (the "Maximum Rate") that may be contracted for,
charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable hereunder, together with all
Charges payable to such Lender, such Ancillary Lender or such Issuing Bank,
shall be limited to the Maximum Rate, provided that such excess amount shall be
paid to such Lender, such Ancillary Lender or such Issuing Bank on subsequent
payment dates to the extent not exceeding the legal limitation.
SECTION 9.10. Entire Agreement. This Agreement, the other Loan
Documents and the agreements regarding certain Fees referred to herein
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among or representations from the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and
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enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which,
when taken together, shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
of Holdings and each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender, any Issuing Bank or any Ancillary Lender may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against Holdings, Intermediate Holdings, any Borrower or any Loan
Party or their properties in the courts of any jurisdiction.
(b) Each of Holdings and each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient
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forum to the maintenance of such action or proceeding in any such court.
SECTION 9.16. Confidentiality. Each of the Lenders, each Issuing
Bank, each Ancillary Lender and each of the Agents agrees that it shall maintain
in confidence any information relating to Holdings, Intermediate Holdings, the
U.S. Borrower and the other Loan Parties furnished to it by or on behalf of
Holdings, Intermediate Holdings, the U.S. Borrower or the other Loan Parties
(other than information that (a) has become generally available to the public
other than as a result of a disclosure by such party, (b) has been independently
developed by such Lender, such Issuing Bank, such Ancillary Lender or such Agent
without violating this Section 9.16 or (c) was available to such Lender, such
Issuing Bank, such Ancillary Lender or such Agent from a third party having, to
such person's knowledge, no obligations of confidentiality to Holdings,
Intermediate Holdings, the U.S. Borrower or any other Loan Party) and shall not
reveal the same other than to its directors, trustees, officers, employees and
advisors with a need to know or to any person that approves or administers the
Loans on behalf of such Lender or the Ancillary Facility on behalf of such
Lender (so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), except: (A) to the extent
necessary to comply with law or any legal process or the requirements of any
Governmental Authority, the National Association of Insurance Commissioners or
of any securities exchange on which securities of the disclosing party or any
Affiliate of the disclosing party are listed or traded, (B) as part of normal
reporting or review procedures to Governmental Authorities or the National
Association of Insurance Commissioners, (C) to its parent companies, Affiliates
or auditors (so long as each such person shall have been instructed to keep the
same confidential in accordance with this Section 9.16), (D) in order to enforce
its rights under any Loan Document in a legal proceeding, (E) to any prospective
assignee of, or prospective Participant in, any of its rights under this
Agreement (so long as such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16) and (F) to any direct or
indirect contractual counterparty in Swap Agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section).
SECTION 9.17. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Foreign Subsidiary
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Borrower) agrees, to the fullest extent that it may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures in the relevant jurisdiction the first currency could be purchased
with such other currency on the Business Day immediately preceding the day on
which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction 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
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.17 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 9.18. USA PATRIOT Act. Each 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 Borrowers, which
information includes the name and address of each Borrower and other information
that will allow such Lender to identify each Borrower in accordance with the
Act.
ARTICLE X
Ancillary Facility Adjustments
SECTION 10.01. Exchange of Interests in Ancillary Facilities. (a) On
the CAM Exchange Date and immediately prior to the deemed exchange of interests
pursuant to the CAM Exchange as provided in Section 11.01(a)(ii):
(i) the principal amount of each Global Revolving Facility
Loan denominated in a Foreign Currency and of each Ancillary Credit
Extension shall, automatically and with no further action required,
be
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converted into the Dollar Equivalent, determined using the Exchange
Rates calculated as of the CAM Exchange Date, of such amount and,
subject to Section 11.01(a)(iv), on and after such date all amounts
accruing and owed to any Lender or any Ancillary Lender in respect
of such Obligations shall accrue and be payable in Dollars at the
rates otherwise applicable hereunder;
(ii) in the event that on the CAM Exchange Date any Unfunded
Ancillary Credit Extension (in respect of which cash collateral
shall not have previously been deposited pursuant to Section
2.22(e)) shall exist, or the applicable Foreign Subsidiary Borrower
shall have failed to reimburse a disbursement made by the applicable
Ancillary Lender, the applicable Ancillary Lender shall promptly pay
over to the Administrative Agent, in immediately available funds, an
amount in Dollars equal to such Unfunded Ancillary Credit Extension
or unreimbursed disbursement, together with interest thereon from
the CAM Exchange Date to the date on which such amount shall be paid
to the Administrative Agent at the rate that would be applicable at
the time to an ABR Revolving Loan in a principal amount equal to
such Unfunded Ancillary Credit Extension or unreimbursed
disbursement. The Administrative Agent shall establish an account
(the "Unfunded Ancillary Credit Extension Account") and shall
deposit all amounts received pursuant to the previous sentence and
all amounts of cash collateral previously deposited pursuant to
Section 2.22(e) in the Unfunded Ancillary Credit Extension Account
pending application of such amounts pursuant to Section 11.02. The
Administrative Agent shall have sole dominion and control over the
Unfunded Ancillary Credit Extension Account; and
(iii) there shall be a deemed buying and selling of interests
(without regard to Section 9.04) in the outstanding Global Revolving
Facility Loans and Ancillary Credit Extensions by the Global
Revolving Facility Lenders (and each Global Revolving Facility
Lender shall promptly make payment therefor to the Administrative
Agent in the same manner as provided in Section 2.06 with respect to
Loans made by such Global Revolving Facility Lender (and Section
2.06 shall apply, mutatis mutandis, to such payment obligations of
such Global Revolving Facility Lender) for distribution to the
applicable Global Revolving Facility Lenders) such that, after
giving effect to
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such deemed buying and selling of interests, each Global Revolving
Facility Lender holds its ratable share of the Global Revolving
Facility Loans (based on the respective Global Revolving Facility
Commitments of the Global Revolving Facility Lenders immediately
prior to the CAM Exchange Date) of each outstanding Global Revolving
Facility Loan and each Ancillary Credit Extension.
ARTICLE XI
Collection Allocation Mechanism
SECTION 11.01. Implementation of CAM. (a) On the CAM Exchange Date,
(i) the Commitments shall automatically and without further act be terminated as
provided in Section 7.01, (ii) each Global Revolving Facility Lender shall
immediately be deemed to have acquired (and shall promptly make payment therefor
to the Applicable Agent in accordance with Section 2.04(c)) participations in
the Swingline Loans (other than any Swingline Foreign Currency Loan in respect
of which Global Revolving Facility Lenders have funded their purchase of
participations pursuant to Section 2.04(c)) in an amount equal to such Global
Revolving Facility Lender's ratable share (based on the respective Global
Revolving Facility Commitments of the Global Revolving Facility Lenders
immediately prior to the CAM Exchange Date) of each Swingline Foreign Currency
Loan outstanding on such date, (iii) each U.S. Revolving Facility Lender shall
immediately be deemed to have acquired (and shall promptly make payment therefor
to the Applicable Agent in accordance with Section 2.04(c)) participations in
the Swingline Dollar Loans (other than any Swingline Dollar Loan in respect of
which the U.S. Revolving Facility Lenders have funded their purchase of
participations pursuant to Section 2.04(c)) in an amount equal to such U.S.
Revolving Facility Lender's U.S. Revolving Facility Percentage of each Swingline
Dollar Loan outstanding on such date, (iv) simultaneously with the automatic
conversions pursuant to clause (v) below, the Lenders shall automatically and
without further act (and without regard to the provisions of Section 9.04) be
deemed to have exchanged interests in the Loans (other than the Swingline
Loans), Funded Ancillary Credit Extensions and participations in Unfunded
Ancillary Credit Extensions, Swingline Loans and Letters of Credit, such that in
lieu of the interest of each Lender in each Loan, Letter of Credit and Ancillary
Credit Extension in which it shall participate as of such date (including such
Lender's interest in the Obligations of each Loan Party in respect of each such
Loan, Letter of Credit and Ancillary Credit Extension), such Lender shall hold
an interest in every one of the Loans (other than the
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Swingline Loans) and Funded Ancillary Credit Extensions and a participation in
every one of the Swingline Loans, Letters of Credit and Unfunded Ancillary
Credit Extensions (including the Obligations of each Loan Party in respect of
each such Loan and Ancillary Credit Extension and each Reserve Account
established pursuant to Section 11.02 below), whether or not such Lender shall
previously have participated therein, equal to such Lender's CAM Percentage
thereof and (v) simultaneously with the deemed exchange of interests pursuant to
clause (iv) above, (A) in the case of the CAM Euro Lenders, the interest in the
Loans and Funded Ancillary Credit Extensions denominated in a currency other
than Euros to be received in such deemed exchange shall, automatically and with
no further action required, be converted into the Euro Equivalent, determined
using the Exchange Rate calculated as of such date, of such amount and on and
after such date all amounts accruing and owed to the CAM Euro Lenders in respect
of such Obligations shall accrue and be payable in Euros at the rates otherwise
applicable hereunder and (B) in the case of the CAM Dollar Lenders, the
interests in the Loans and Funded Ancillary Credit Extensions to be received in
such deemed exchange shall, automatically and with no further action required,
be converted into the Dollar Equivalent, determined using the Exchange Rate
calculated as of such date, of such amount and on and after such date all
amounts accruing and owed to the CAM Dollar Lenders in respect of such
Obligation shall accrue and be payable in Dollars at the rate otherwise
applicable hereunder. Each Lender and each Loan Party hereby consents and agrees
to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be
binding upon its successors and assigns and any person that acquires a
participation in its interests in any Loan or Ancillary Credit Extension. Each
Loan Party agrees from time to time to execute and deliver to the Administrative
Agent all such promissory notes and other instruments and documents as the
Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it
in connection with its Loans hereunder to the Administrative Agent against
delivery of any promissory notes evidencing its interests in the Loans and
Funded Ancillary Credit Extensions so executed and delivered; provided, however,
that the failure of any Loan Party to execute or deliver or of any Lender to
accept any such promissory note, instrument or document shall not affect the
validity or effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after the CAM Exchange
Date, each payment received by the Applicable Agent or the Collateral Agent
pursuant to any Loan Document in respect of the Obligations of each Loan Party
in respect of each
215
Loan, Letter of Credit and Ancillary Credit Extension, and each distribution
made by the Collateral Agent pursuant to any Security Document in respect of
such Obligations, shall be distributed to the Lenders pro rata in accordance
with their respective CAM Percentages. Any direct payment received by a Lender
upon or after the CAM Exchange Date, including by way of set-off, in respect of
an Obligation shall be paid over to the Applicable Agent for distribution to the
Lenders in accordance herewith.
SECTION 11.02. Letters of Credit and Unfunded Ancillary Credit
Extensions. (a) In the event that on the CAM Exchange Date any Letter of Credit
shall be outstanding and undrawn in whole or in part, or any L/C Disbursement
shall not have been reimbursed either by an Applicant Party or, in the case of
any L/C Disbursement made in Dollars, with the proceeds of a U.S. Revolving
Facility Borrowing or Swingline Dollar Borrowing, each U.S. Revolving Facility
Lender shall promptly pay over to the Administrative Agent, in immediately
available funds, an amount in Dollars equal to such U.S. Revolving Facility
Lender's U.S. Revolving Facility Percentage of such undrawn face amount (or, in
the case of any Foreign Currency Letter of Credit, the Dollar Equivalent of such
face amount) or (to the extent it has not already done so) such unreimbursed
drawing, as applicable, together with interest thereon from the CAM Exchange
Date to the date on which such amount shall be paid to the Administrative Agent
at the rate that would be applicable at the time to an ABR Revolving Loan in a
principal amount equal to such undrawn face amount or unreimbursed drawing, as
applicable. The Administrative Agent shall establish a separate account (each, a
"Reserve Account") or accounts for each Lender for the amounts received with
respect to each such Letter of Credit pursuant to the preceding sentence The
Administrative Agent shall deposit in each Lender's Reserve Account such
Lender's CAM Percentage of (x) the amounts received from the Revolving Credit
Lenders as provided above and (y) the amounts on deposit in the Unfunded
Ancillary Credit Extension Account. The Administrative Agent shall have sole
dominion and control over each Reserve Account, and the amounts deposited in
each Reserve Account shall be held in such Reserve Account until withdrawn as
provided in paragraph (b), (c), (d) or (e) below. The Administrative Agent shall
maintain records enabling it to determine the amounts paid over to it and
deposited in the Reserve Accounts in respect of each Letter of Credit and
Unfunded Ancillary Credit Extension and the amounts on deposit in respect of
each Letter of Credit and Unfunded
216
Ancillary Credit Extension attributable to each Lender's CAM Percentage. The
amounts held in each Lender's Reserve Account shall be held as a reserve against
the Revolving L/C Exposures and payment obligations in respect of Unfunded
Ancillary Credit Extensions, shall be the property of such Lender, shall not
constitute Loans to or give rise to any claim of or against any Loan Party and
shall not give rise to any obligation on the part of the U.S. Borrower to pay
interest to such Lender, it being agreed that the reimbursement obligations in
respect of (x) Letters of Credit shall arise only at such times as drawings are
made thereunder, as provided in Section 2.05, and (y) disbursements under any
Ancillary Facility shall arise only at such time as payments are required under
such Ancillary Facility.
(b) In the event that after the CAM Exchange Date any drawing shall
be made in respect of a Letter of Credit or any payment shall be made in respect
of an Unfunded Ancillary Credit Extension, the Administrative Agent shall, at
the request of the applicable Issuing Bank or Ancillary Lender, as applicable,
withdraw from the Reserve Account of each Lender any amounts, up to the amount
of such Lender's CAM Percentage of such drawing or payment, deposited in respect
of such Letter of Credit or Unfunded Ancillary Credit Extension and remaining on
deposit and deliver such amounts, in the case of a Letter of Credit, to such
Issuing Bank in satisfaction of the reimbursement obligations of the U.S.
Revolving Facility Lenders under Section 2.05(d) (but not of the U.S. Borrower
under Section 2.05(e)) or, in the case of an Unfunded Ancillary Credit
Extension, to the applicable Ancillary Lender. In the event that any U.S.
Revolving Facility Lender shall default on its obligation to pay over any amount
to the Administrative Agent as provided in this Section 11.02, the applicable
Issuing Bank shall have a claim against such U.S. Revolving Facility Lender to
the same extent as if such Lender had defaulted on its obligations under Section
2.05(d), but shall have no claim against any other Lender in respect of such
defaulted amount, notwithstanding the exchange of interests in the applicable
Borrower's reimbursement obligations pursuant to Section 11.01. Each other
Lender shall have a claim against such defaulting U.S. Revolving Facility Lender
for any damages sustained by it as a result of such default, including, in the
event that such Letter of Credit shall expire undrawn, its CAM Percentage of the
defaulted amount.
(c) In the event that after the CAM Exchange Date any Letter of
Credit shall expire undrawn, or an Unfunded Ancillary Credit Extension shall
expire without requiring payment, the Administrative Agent shall withdraw from
the Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit, or Unfunded Ancillary Credit Extension, as
applicable, and distribute such amount to such Lender.
(d) With the prior written approval of the Administrative Agent (not
to be unreasonably withheld), any
217
Lender may withdraw the amount held in its Reserve Account in respect of the
undrawn amount of any Letter of Credit or Unfunded Ancillary Credit Extension.
Any Lender making such a withdrawal shall be unconditionally obligated, in the
event there shall subsequently be a drawing under such Letter of Credit or
payment in respect of an Unfunded Ancillary Credit Extension, to pay over to the
Administrative Agent, for the account of the Issuing Bank or Ancillary Lender,
as applicable, on demand, its CAM Percentage of such drawing or payment.
(e) Pending the withdrawal by any Lender of any amounts from its
Reserve Account as contemplated by the above paragraphs, the Administrative
Agent will, at the direction of such Lender and subject to such rules as the
Administrative Agent may prescribe for the avoidance of inconvenience, invest
such amounts in Permitted Investments. Each Lender that has not withdrawn its
amounts in its Reserve Account as provided in paragraph (d) above shall have the
right, at intervals reasonably specified by the Administrative Agent, to
withdraw the earnings on investments so made by the Administrative Agent with
amounts in its Reserve Account and to retain such earnings for its own account.
SECTION 11.03. Existing Credit Agreement; Effectiveness of this
Agreement. Until this Agreement becomes effective in accordance with the terms
hereof, the Existing Credit Agreement shall remain in full force and effect and
shall not be affected hereby. After the Restatement Effective Date, all
obligations of the Borrowers under the Existing Credit Agreement shall become
obligations of the Borrowers hereunder, secured by the Security Documents, and
the provisions of the Existing Credit Agreement shall be superseded by the
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
TRW AUTOMOTIVE HOLDINGS CORP.,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice
President and Chief
Financial Officer
TRW AUTOMOTIVE INTERMEDIATE
HOLDINGS CORP.,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial
Officer
TRW AUTOMOTIVE INC.,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice
President and Chief
Financial Officer
219
XXXXX INDUSTRIES LIMITED,
by
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
TRW SYSTEMS LIMITED,
by
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
220
TRW BRAKING SYSTEMS POLSKA SP.
Z O.O.,
by
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
TRW POLSKA SP. Z O.O,
By
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
TRW SAFETY SYSTEMS POLAND SP.
Z O.O,
By
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Manager
TRW STEERING SYSTEMS POLAND SP.
Z O.O,
By
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
221
TRW AUTOMOTIVE GMBH,
By
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
TRW DEUTSCHLAND HOLDING GMBH,
by
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
222
JPMORGAN CHASE BANK, N.A. (f/k/a
JPMORGAN CHASE BANK),
Individually and as
Administrative Agent, Collateral
Agent and Issuing Bank
by
/s/
-------------------------------------
Name:
Title:
