EXHIBIT 10(b)
Execution Copy
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CREDIT AGREEMENT
dated as of
March 16, 2005
among
XXXXXXX COMPANY,
THE FOREIGN SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
BANK LEUMI USA,
as Syndication Agent,
and
BANK OF AMERICA, N.A.
STANDARD FEDERAL BANK N.A.
and
NATIONAL CITY BANK OF THE MIDWEST,
as Documentation Agents
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X.X. XXXXXX SECURITIES INC.,
as Co-Lead Arranger and Sole Bookrunner
BANK LEUMI USA,
as Co-Lead Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................. 1
SECTION 1.02. Classification of Loans and Borrowings........................ 18
SECTION 1.03. Terms Generally............................................... 18
SECTION 1.04. Accounting Terms; GAAP; Pro Forma Treatment................... 19
SECTION 1.05. Foreign Currency Calculations................................. 19
SECTION 1.06. Redenomination of Certain Foreign Currencies.................. 19
ARTICLE II
The Credits
SECTION 2.01. Commitments................................................... 20
SECTION 2.02. Loans and Borrowings.......................................... 20
SECTION 2.03. Requests for Revolving or Term Loan Borrowings................ 21
SECTION 2.04. Swingline Loans............................................... 24
SECTION 2.05. Letters of Credit............................................. 25
SECTION 2.06. Funding of Borrowings......................................... 29
SECTION 2.07. Interest Elections............................................ 29
SECTION 2.08. Termination and Reduction/Increases of Commitments............ 31
SECTION 2.09. Repayment of Loans; Evidence of Debt.......................... 32
SECTION 2.10. Prepayment of Loans........................................... 33
SECTION 2.11. Fees.......................................................... 33
SECTION 2.12. Interest...................................................... 34
SECTION 2.13. Alternate Rate of Interest.................................... 35
SECTION 2.14. Increased Costs............................................... 36
SECTION 2.15. Break Funding Payments........................................ 37
SECTION 2.16. Taxes......................................................... 37
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs... 38
SECTION 2.18. Mitigation Obligations; Replacement of Lenders................ 40
SECTION 2.19. Foreign Subsidiary Borrowers.................................. 40
SECTION 2.20. Additional Reserve Costs...................................... 41
SECTION 2.21. Ancillary Facilities.......................................... 41
SECTION 2.22. Guaranties; Collateral........................................ 43
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.......................................... 44
SECTION 3.02. Authorization; Enforceability................................. 44
SECTION 3.03. Governmental Approvals; No Conflicts.......................... 44
SECTION 3.04. Financial Condition; No Material Adverse Change............... 44
SECTION 3.05. Properties.................................................... 44
SECTION 3.06. Litigation and Environmental Matters.......................... 45
SECTION 3.07. Compliance with Laws and Agreements........................... 45
SECTION 3.08. Investment and Holding Company Status......................... 45
SECTION 3.09. Taxes......................................................... 45
SECTION 3.10. ERISA......................................................... 45
SECTION 3.11. Disclosure.................................................... 45
SECTION 3.12. Use of Advances............................................... 46
SECTION 3.13. Labor Matters................................................. 46
SECTION 3.14. Agis Acquisition.............................................. 46
ARTICLE IV
Conditions
SECTION 4.01. Effective Date................................................ 46
SECTION 4.02. Each Credit Event............................................. 47
SECTION 4.03. Credit Events Relating to Foreign Subsidiary Borrowers........ 47
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Change and Other Information.... 48
SECTION 5.02. Notices of Material Events.................................... 49
SECTION 5.03. Existence; Conduct of Business................................ 49
SECTION 5.04. Payment of Obligations........................................ 49
SECTION 5.05. Maintenance of Properties; Insurance; Accounts................ 50
SECTION 5.06. Books and Records; Inspection Rights.......................... 50
SECTION 5.07. Compliance with Laws.......................................... 50
SECTION 5.08. Use of Proceeds and Letters of Credit......................... 50
SECTION 5.09. Additional Covenants.......................................... 50
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.................................................. 51
SECTION 6.02. Liens......................................................... 51
SECTION 6.03. Fundamental Changes........................................... 52
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions..... 52
SECTION 6.05. Swap Agreements............................................... 52
SECTION 6.06. Restricted Payments........................................... 53
SECTION 6.07. Transactions with Affiliates.................................. 53
SECTION 6.08. Restrictive Agreements........................................ 53
SECTION 6.09. Disposition of Assets......................................... 53
SECTION 6.10. Leverage Ratio................................................ 54
SECTION 6.11. Interest Coverage Ratio....................................... 54
ARTICLE VII
Events of Default
Events of Default............................................. 54
ARTICLE VIII
The Agents
SECTION 8.01. Appointment................................................... 56
SECTION 8.02. Nature of Duties.............................................. 57
SECTION 8.03. Resignation by the Agents..................................... 57
SECTION 8.04. Each Agent in its Individual Capacity......................... 57
SECTION 8.05. Indemnification............................................... 58
SECTION 8.06. Lack of Reliance on Agents.................................... 58
SECTION 8.07. Designation of Affiliates for Foreign Currency Loans.......... 58
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices....................................................... 58
SECTION 9.02. Waivers; Amendments........................................... 59
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................ 60
SECTION 9.04. Successors and Assigns........................................ 61
SECTION 9.05. Survival...................................................... 63
SECTION 9.06. Counterparts; Integration; Effectiveness..................... 63
SECTION 9.07. Severability.................................................. 63
SECTION 9.08. Right of Setoff............................................... 64
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 64
SECTION 9.10. WAIVER OF JURY TRIAL.......................................... 64
SECTION 9.11. Headings...................................................... 65
SECTION 9.12. Confidentiality............................................... 65
SECTION 9.13. Interest Rate Limitation...................................... 65
SECTION 9.14. USA PATRIOT Act............................................... 66
SECTION 9.15. Conversion of Currencies...................................... 66
ARTICLE X
Collection Allocation Mechanism
SECTION 10.01. Implementation of CAM......................................... 66
SECTION 10.02. Letters of Credit............................................. 67
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters - Litigation and Environmental Matters
Schedule 3.07 -- Disclosed Matters - Compliance with Laws and Agreements
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments, Loans and Advances
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Foreign Subsidiary Borrower Agreement
Exhibit C -- Foreign Subsidiary Borrower Termination
Exhibit D -- Lender Addition and Acknowledgement Agreement
Exhibit E -- Note
Exhibit F -- Mandatory Cost Rate
Exhibit G-1 -- Form of Opinion of U.S. Borrower's Counsel
Exhibit G-2 -- Form of Opinion of Foreign Subsidiary Borrower's Counsel
This CREDIT AGREEMENT (this "Agreement"), dated as of March 16, 2005,
is among XXXXXXX COMPANY, the FOREIGN SUBSIDIARY BORROWERS party hereto, the
LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, BANK
LEUMI USA, as Syndication Agent, and BANK OF AMERICA, N.A., STANDARD FEDERAL
BANK N.A. and NATIONAL CITY BANK OF THE MIDWEST, as Documentation Agents.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
U.S. Borrower or any of its Subsidiaries (i) acquires any going business or all
or substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the Equity Interests of a Person.
"Adjusted LIBO Rate" means, 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 (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Advance" means any Loan or any Letter of Credit.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent, the Syndication Agent and the
Documentation Agents.
"Aggregate Ancillary Commitments" means, at any time, the aggregate
amount of the Ancillary Commitments of all Lenders at such time.
"Aggregate Ancillary Facility Exposure" means, at any time, the
aggregate amount of the
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Ancillary Facility Exposures of all Lenders at such time.
"Aggregate Commitments" means, at any time, the aggregate amount of
the Commitments of all Lenders at such time.
"Aggregate Revolving Commitments" means, at any time, the aggregate
amount of the Revolving Commitments of all Lenders at such time.
"Aggregate Revolving Credit Exposure" means, at any time, the
aggregate amount of the Revolving Credit Exposures of all Lenders at such time.
"Aggregate Total Revolving Exposure" means, at any time, the sum of
the Aggregate Revolving Credit Exposure and the Aggregate Ancillary Facility
Exposure at such time.
"Aggregate Term Loans" means, at any time, the sum of the Term Loans
of all Lenders at such time.
"Agis" means Agis Industries (1983) Ltd., an Israeli public company.
"Agis Acquisition" means the Acquisition by Israeli Acquisition Co. of
100% of the Equity Interests of Agis on the date one Business Day after the
Effective Date pursuant to the Agis Acquisition Documents, and the subsequent
merger on the date one Business Day after the Effective Date of Israeli Merger
Co. with Agis, with Agis being the survivor.
"Agis Acquisition Certificate" shall have the meaning assigned to such
term in Section 4.01(j).
"Agis Acquisition Documents" means the Agis Merger Agreement and all
other material agreements, documents and instruments executed in connection with
the Agis Acquisition.
"Agis Acquisition Transactions" means the execution, delivery and
performance by the Loan Parties of the Agis Acquisition Documents and the
Israeli Acquisition Cash Secured Loan Document to which it is a party, the
borrowing of the Israeli Acquisition Cash Secured Loan, the use of the proceeds
thereof, the Agis Acquisition, and all transactions related thereto.
"Agis Merger Agreement" means the Agreement and Plan of Merger dated
as of November 14, 2004 among the U.S. Borrower, Agis and the Israeli Merger Co.
"Agreement Currency" shall have the meaning assigned to such term in
Section 9.15(b).
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Ancillary Commitment" means, with respect to any Ancillary Lender and
Ancillary Facility, the maximum amount that such Ancillary Lender has agreed to
make available from time to time during the Availability Period under such
Ancillary Facility created pursuant to Section 2.21 by such Ancillary Lender;
provided that at no time shall (a) all Ancillary Commitments of such Ancillary
Lender
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and the Revolving Credit Exposure of such Ancillary Lender exceed (b) the
Revolving Commitment of such Ancillary Lender.
"Ancillary Facility" means any facility made available for a Foreign
Subsidiary Borrower by a Lender pursuant to Section 2.21.
"Ancillary Facility Document" means, with respect to any Ancillary
Facility, the agreements between the applicable Foreign Subsidiary Borrower and
the Ancillary Lender(s) thereunder providing such Ancillary Facility.
"Ancillary Facility Exposure" means, with respect to any Lender at any
time, the Dollar Equivalent of the outstanding principal amount of such Lender's
Ancillary Loans at such time.
"Ancillary Facility Termination Date" shall have the meaning assigned
to such term in Section 2.21(e)(i).
"Ancillary Lender" means, with respect to any Ancillary Facility, the
Lender that has made such Ancillary Facility available under Section 2.21.
"Ancillary Loan" means, at any time, a loan under an Ancillary
Facility in respect of which the applicable Ancillary Lender has advanced funds
to the Foreign Subsidiary Borrower thereunder.
"Applicable Adjusted Percentage" means, with respect to any Lender,
the percentage of (a) the Aggregate Revolving Commitments minus the Aggregate
Ancillary Commitments, represented by (b) such Lender's Revolving Commitment
minus such Lender's Ancillary Commitments. If the Revolving Commitments have
terminated or expired, the Applicable Adjusted Percentage shall be determined
based upon the Revolving Commitments and, to the extent Ancillary Commitments
are outstanding at the time of termination or expiration of the Revolving
Commitments, Ancillary Commitments most recently in effect, giving effect to any
assignments.
"Applicable Agent" means (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, 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 9.15(b).
"Applicable Lending Installation" is defined in Section 2.02(e).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitments. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
Loan or with respect to the facility fees payable hereunder, as the case may be,
the applicable rate per annum set forth below under the caption "Applicable
Margin" or "Facility Fee Rate", as the case may be, based upon the Leverage
Ratio as of the most recent determination date:
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Applicable Margin - LIBO
Revolving Loans and Applicable Margin - LIBO
Level Leverage Ratio Facility Fee Rate Letters of Credit Term Loans
----- --------------- ----------------- ------------------------ ------------------------
1 > or = 2.50:1.0 30.0 100.0 bps 130.0 bps
2 < 2.50:1.0 25.0 75.0 bps 100.0 bps
3 < 2.00:1.0 20.0 67.5 bps 87.5 bps
4 < 1.50:1.0 15.0 57.5 bps 72.5 bps
5 < 1.00:1.0 12.5 47.5 bps 60.0 bps
6 < 0.50:1.0 10.0 40.0 bps 50.0 bps
The Applicable Rate shall be determined in accordance with the foregoing table
based on the Leverage Ratio as determined in the then most recent quarterly
financial statements for the first three Fiscal Quarters of each Fiscal Year and
the audited year end financial statements for the last Fiscal Quarter (in each
case calculated on a trailing four quarter basis) of the U.S. Borrower.
Adjustments, if any, to the Applicable Rate shall be effective five business
days after the Administrative Agent is scheduled to receive the applicable
financials under Section 5.01(a) or (b) and certificate under Section 5.01(c).
If the U.S. Borrower fails to deliver the financials to the Administrative Agent
at the time required hereunder, then the Applicable Rate shall be set at Level 1
until five days after such financials are so delivered. Notwithstanding anything
herein to the contrary, the Applicable Rate shall be set at Level 4 as of the
Effective Date hereof and shall be adjusted for the first time based on the
financials for the Fiscal Quarter ending June 25, 2005.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Available Unused Commitment" means, with respect to a Lender at any
time, an amount equal to the amount by which (a) the Revolving Commitment of
such Lender at such time exceeds (b) the sum of (x) the Revolving Credit
Exposure of such Lender at such time and (y) the Ancillary Commitments (if any)
of such Lender at such time.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Revolving Commitments.
"Bank Leumi" means Bank Leumi USA, and its successors.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
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"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means: (1) with respect to a corporation, the
board of directors of the corporation or such directors or committee serving a
similar function; (2) with respect to a limited liability company, the board of
managers of the company or such managers or committee serving a similar
function; (3) with respect to a partnership, the Board of Directors of the
general partner of the partnership; and (4) with respect to any other Person,
the managers, directors, trustees, board or committee of such Person or its
owners serving a similar function.
"Borrowers" means the U.S. Borrower and the Foreign Subsidiary
Borrowers.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect, (b) Ancillary Loans of the
same Type, made, converted or continued on the same date and made with respect
to the same Ancillary Facility, (c) Term Loans or portions thereof of the same
Type made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect or (d) a
Swingline Loan.
"Borrowing Minimum" means (a) in the case of an ABR Borrowing and a
Eurocurrency Borrowing denominated in Dollars, $3,000,000, (b) in the case of a
Revolving 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 $3,000,000, (c) in the case of
an Ancillary Borrowing, such amount agreed upon in the relevant Ancillary
Facility Document, and (d) in the case of a Swingline Borrowing, such amount
agreed to by the Swingline Lender and the U.S. Borrower.
"Borrowing Multiple" means (a) in the case of a Revolving Borrowing
denominated in Dollars, $1,000,000, (b) in the case of a Revolving Borrowing
denominated in a Foreign Currency, 1,000,000 units of such Foreign Currency, (c)
in the case of an Ancillary Borrowing, such amount agreed upon in the relevant
Ancillary Facility Document, (d) in the case of a Swingline Borrowing
denominated in Dollars, $100,000 or such other amount agreed to by the Swingline
Lender, and (e) in the case of a Swingline Borrowing denominated in a Foreign
Currency, 100,000 units of such Foreign Currency or such other amount agreed to
by the Swingline Lender.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or Chicago are authorized or
required by law to remain closed; provided that, (i) 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 currency in which such
Eurocurrency Loan is denominated in the London interbank market, and (ii) when
used in connection with an Ancillary Loan, the term "Business Day" shall mean
any day defined as a Business Day in the relevant Ancillary Facility Document.
"CAM" means the mechanism for the allocation and exchange of interests
in the Loans and participations in Letters of Credit and collections thereunder
established under Article X.
"CAM Exchange" means the exchange of the Lenders' interests provided
for in Section 10.01.
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"CAM Exchange Date" means the first date after the Effective Date on
which there shall occur (a) any event described in paragraph (h) or (i) of
Article VII with respect to any Borrower or (b) an acceleration of Advances
pursuant to Article VII.
"CAM Percentage" means, as to each Lender, the percentage of the
Aggregate Revolving Commitment and Aggregate Term Loans represented by such
Lender's Revolving Commitment and Term Loan calculated immediately prior to the
CAM Exchange Date. If the Revolving Commitments have terminated or expired, the
CAM Percentage shall be determined based upon the Revolving Commitments most
recently in effect, giving effect to any assignments.
"Capital Lease Obligations" of any Person means 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 the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (i) the membership of the U.S. Borrower's
Board of Directors changes by more than 50% during any 12-month period, or the
number of members on the U.S. Borrower's Board of Directors either increases or
decreases by more than 50% during any 12 month period, (ii) any person or group
or persons (within the meaning of Section 13(d) of the Securities Exchange Act
of 1934, as amended) shall obtain ownership or control in one or more series of
transactions of more than 35% of the common Equity Interests or 35% of the
voting power of the Equity Interests of the U.S. Borrower entitled to vote in
the election of members of the Board of Directors of the U.S. Borrower.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender's or the 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 date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means, collectively, the "Collateral" under and as
defined in, and any other assets upon which a Lien has been granted by, any of
the Collateral Documents.
"Collateral Documents" means, collectively, all pledge and security
agreements and all other agreements or documents granting or perfecting a Lien
in favor of the Administrative Agent for the benefit of the Lenders or otherwise
providing support for the Secured Obligations at any time, each in form and
substance satisfactory to the Administrative Agent, and as amended or modified
from time to time.
"Commitments" means the Revolving Commitments and the Term Loan
Commitments.
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"Consolidated EBIT" means, with reference to any period, the net
income (or loss) of the U.S. Borrower and its Subsidiaries for such period,
plus, to the extent deducted from revenues in determining such net income,
without duplication, (i) Consolidated Interest Expense, (ii) expense for income
taxes paid or accrued, (iii) extraordinary non-cash losses incurred other than
in the ordinary course of business, and (iv) losses incurred other than in the
ordinary course of business that are non-cash, non-operating and non-recurring,
minus, to the extent included in such net income, (a) extraordinary non-cash
gains realized other than in the ordinary course of business, and (b) gains
realized other than in the ordinary course of business that are non-cash,
non-operating and non-recurring, all as determined in accordance with GAAP and
calculated for the U.S. Borrower and its Subsidiaries on a consolidated basis.
"Consolidated EBITDA" means, with reference to any period, the
Consolidated EBIT for such period, plus, to the extent deducted from revenues in
determining such Consolidated EBIT, depreciation and amortization expense, all
as determined in accordance with GAAP and calculated for the U.S. Borrower and
its Subsidiaries on a consolidated basis.
"Consolidated Indebtedness" means at any time the Indebtedness of the
U.S. Borrower and its Subsidiaries calculated on a consolidated basis.
"Consolidated Interest Expense" means, with reference to any period,
the Interest Expense of the U.S. Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Total Assets" means, 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.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06 and Schedule 3.07.
"Disqualified Stock" means any Equity Interest that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Documentation Agents" means Bank of America, N.A., Standard Federal
Bank N.A. and National City Bank of the Midwest, in their capacity as
documentation agents for the Lenders hereunder.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Dollar Equivalent" means, 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
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Dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.05 using the Exchange Rate with respect to such Foreign Currency at
the time in effect under the provisions of such Section.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"EMU Legislation" means the legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one or more
member states of the European Union.
"Environmental Laws" means all laws, 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 any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the U.S. Borrower or any Subsidiary directly or
indirectly resulting from or based upon (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 Interests " means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the U.S. Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), 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 the U.S. Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the U.S. Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by the U.S. Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or
9
(g) the receipt by the U.S. Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the U.S. Borrower 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 "E" means 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.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means on any day, for purposes of determining the
Dollar Equivalent of any currency other than Dollars, the rate at which such
currency may be exchanged into Dollars at the time of determination on such day
on the Reuters Currency pages, if available, for such currency. In the event
that such rate does not appear on any Reuters Currency pages, 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 Borrowers, 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
such time as the Administrative Agent shall elect after determining that such
rates shall be the basis for determining the Exchange Rate, on such date for the
purchase of Dollars 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.
"Exchange Rate Date" means, if on such date any outstanding Loan is
(or any Loan that has been requested at such time would be) denominated in a
currency other than Dollars, each of:
(a) the last Business Day of each calendar month,
(b) if an Event of Default has occurred and is continuing, the CAM Exchange
Date and any other Business Day designated as an Exchange Rate Date by the
Administrative Agent in its sole discretion, and
(c) 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 Revolving Borrowing or (ii)
each request for the issuance, amendment, renewal or extension of any Ancillary
Loan, Letter of Credit or Swingline Loan.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the U.S. Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the State of the United States of America or other
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 in which the U.S. Borrower
10
is located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the U.S. Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable 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 2.16(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 the U.S. Borrower
with respect to such withholding tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the U.S. Borrower or other
officer acceptable to the Administrative Agent.
"Fiscal Quarter" means (i) as of the Effective Date, each period of 13
weeks during a Fiscal Year ending on a Saturday (with the first such Fiscal
Quarter to commence on the first day of such Fiscal Year) and (ii) upon and
after such time, if any, as the Borrower adopts a Fiscal Year as set forth in
clause (ii) of the defined term "Fiscal Year", any of the quarterly accounting
periods of the U.S. Borrower, ending on such dates of each year elected by the
U.S. Borrower, provided that such dates are reasonably acceptable to the
Administrative Agent and do not result in the financial covenants in Section
6.10 or 6.11 not being tested for more than three months.
"Fiscal Year" means a (i) as of the Effective Date, any 52-week or
53-week period beginning on the Sunday nearest to June 30 and ending on the
Saturday nearest to the following June 30. References to a Fiscal Year with a
number corresponding to any calendar year (e.g., "2005 Fiscal Year") refer to
the Fiscal Year ending on the Saturday nearest to the June 30 of such calendar
year and (ii) upon the election of the U.S. Borrower, any of the annual
accounting periods of the U.S. Borrower ending on any other date of each year
elected by the U.S. Borrower, provided that such date is reasonably acceptable
to the Administrative Agent and does not result in the financial covenants in
Section 6.10 or 6.11 not being tested for more than three months.
"Foreign Currency" means (a) with respect to an Ancillary Loan, any
currency acceptable to the Administrative Agent that is freely available, freely
transferable and freely convertible into Dollars, including the Shekel and the
Peso, and agreed to by the Ancillary Lenders making such Ancillary Loan, (b)
with respect to any Revolving Loan, Euros, Sterling and any other currency
acceptable to the Administrative Agent that is freely available, freely
transferable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, (c) with respect to any
Letter of Credit, any currency acceptable to the Administrative Agent that is
freely available, freely transferable and freely convertible into Dollars, and
agreed to by the Issuing Bank issuing such Letter of Credit, and (d) with
respect to any Swingline Foreign Currency Loan, any currency acceptable to the
Administrative Agent that is freely available, freely transferable and freely
convertible into Dollars, and agreed to by the Swingline Lender.
"Foreign Lender" means 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.
11
"Foreign Subsidiary" means 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" means, at any time, each Foreign
Subsidiary that has been designated as a Foreign Subsidiary Borrower by the U.S.
Borrower pursuant to Section 2.19, other than a Foreign Subsidiary Borrower that
has ceased to be a Foreign Subsidiary Borrower as provided in Section 2.19.
"Foreign Subsidiary Borrower Agreement" means a Foreign Subsidiary
Borrower Agreement substantially in the form of Exhibit B.
"Foreign Subsidiary Borrower Termination" means a Foreign Subsidiary
Borrower Termination substantially in the form of Exhibit C.
"GAAP" means generally accepted accounting principles in the United
States of America (except with respect to businesses outside the United States
acquired in Acquisitions for periods prior to the date of the Acquisition).
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means 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,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) 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, (c)
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 or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantor" means each Person required to execute a Guaranty pursuant
to Section 2.22
"Guaranty" means each guaranty or similar agreement executed by any of
the Guarantors and Guaranteeing the Obligations, as amended, supplemented or
otherwise modified from time to time, and in form and substance satisfactory to
the Administrative Agent.
"Hazardous Materials" means 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.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such
12
Person for borrowed money or similar obligations, (b) all obligations of such
Person evidenced by bonds, debentures, acceptances, 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 acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances, (k) all Off-Balance Sheet Liabilities of such
Person, and (l) all obligations under any Disqualified Stock of such Person. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the U.S. Borrower that is not guaranteed by any other Person
or subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information Memorandum
dated February, 2005 relating to the U.S. Borrower and the Transactions.
"Interest Coverage Ratio" means, as of the end of any Fiscal Quarter
of the U.S. Borrower, the ratio of Consolidated EBIT to Consolidated Interest
Expense, as calculated for the four consecutive Fiscal Quarters of the U.S.
Borrower then ending.
"Interest Election Request" means a request by the U.S. Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"Interest Expense" means, with respect to any person for any period,
the gross interest expense of such person for such period on a consolidated
basis, including without limitation (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
asset securitization or similar transaction which are payable to any person
other than the U.S. Borrower or a Wholly-Owned Subsidiary. 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" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the 15th day of the month immediately following the last
day of each March, June, September and December, (b) 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
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
13
"Interest Period" means (a) with respect to any Eurocurrency Revolving
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender, such other period requested by
a Borrower) thereafter, as a Borrower may elect, and (b) as to any Swingline
Foreign Currency Loan, the period commencing on the date of such Loan and ending
on the day that is designated in the notice delivered pursuant to Section 2.04
with respect to such Swingline Foreign Currency Loan, which shall not be later
than thirty days thereafter; provided, that (i) 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, in the case of a Eurocurrency Borrowing
only, 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
and (ii) any Interest Period pertaining to a Eurocurrency Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
Notwithstanding the foregoing, with respect to any Ancillary Loan, Interest
Period shall mean any other period of time set forth in the applicable Ancillary
Facility Document for such Ancillary Loan.
"Israeli Acquisition Cash Secured Loan" means the loan in the amount
of $400,000,000 made by Bank Hapoalim B.M. to Israeli Acquisition Co. that is
(i) secured by cash deposited by Perrigo International in an amount equal to the
principal balance of such loan, (ii) non-recourse to the U.S. Borrower or its
Subsidiaries (other than with respect to such cash deposit and to the limited
extent described in the Israeli Acquisition Cash Secured Loan Documents
delivered to the Lender prior to the Effective Date) and (iii) on other terms
and conditions reasonably satisfactory to the Administrative Agent and the
Syndication Agent.
"Israeli Acquisition Cash Secured Loan Documents" means all
agreements, documents and instruments executed in connection with Israeli
Acquisition Cash Secured Loan.
"Israeli Acquisition Co." means Xxxxxxx Xxxxxx Holdings Ltd., an
Israeli company, and a Wholly-Owned Subsidiary of Perrigo International.
"Israeli Merger Co." means Xxxxxxx Xxxxxx Opportunities Ltd., an
Israeli company, and a Wholly-Owned Subsidiary of Israeli Acquisition Co.
"Issuing Bank" means JPMorgan, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Bank or another
Lender, in which case the term "Issuing Bank" shall include any such Affiliate
or other Lender with respect to Letters of Credit issued by such Affiliate or
other Lender.
"JPMorgan" means JPMorgan Chase Bank, N.A., a national banking
association, and its successors.
"Judgment Currency" shall have the meaning assigned to such term in
Section 9.15(b).
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
14
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the U.S. Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Adjusted Percentage of the total LC Exposure at such
time.
"Lender Addition and Acknowledgement Agreement" means an agreement in
substantially the form of Exhibit D hereto, with such changes thereto as
approved by the Administrative Agent.
"Lender Default" means (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" means the Persons (including their Applicable Lending
Installations) listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term "Lenders" as used
herein and in any other Loan Documents, includes without limitation the
Swingline Lender and reference to any Lender includes such Lender and its
Applicable Lending Installations. As an example, any reference to a Lender's
Ancillary Commitments shall mean each Ancillary Commitment in the name of such
Lender or such Lender's Applicable Lending Installations.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, as of the end of any Fiscal Quarter of the
U.S. Borrower, the ratio of (a) Consolidated Indebtedness at such time minus the
amount of the Israeli Acquisition Cash Secured Loan (to the extent it is secured
with cash, provided that any amount thereof that is recourse to the U.S.
Borrower or any of its Subsidiaries (other than with respect to such cash
deposit) shall be included in Consolidated Indebtedness, with the amount thereof
reasonably determined by the Administrative Agent and the Syndication Agent) to
(b) Consolidated EBITDA, as calculated for the four consecutive Fiscal Quarters
of the U.S. Borrower then ending.
"LIBO Rate" means, 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%) determined by
the Applicable Agent of the respective interest rates per annum reported to the
Applicable Agent by JPMorgan and each other Lender selected by the Applicable
Agent (JPMorgan and each such other Lender, the "Reference Lenders") as the rate
at which at which each Reference Lender offers to place deposits in the currency
of such Borrowing for such Interest Period to first-class banks in the London
interbank market at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period; provided that, with respect to any Ancillary Loan, the
LIBO Rate may be any other rate set forth in the applicable Ancillary Facility
Document for such Ancillary Loan.
15
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of 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; provided that the filing of financing statements solely with respect
to, or other lien or claim solely on, any interest in accounts or notes
receivable which are sold or otherwise transferred in a Permitted Securitization
Transaction shall not be considered a Lien and any purchase option, call or
similar right of a third party with respect to any Equity Interests of the U.S.
Borrower are not controlled by this Agreement.
"Loan Documents" means this Agreement, each Guaranty, each Collateral
Document, the Agis Acquisition Certificate, each Ancillary Facility Document and
all other instruments, agreements or documents executed in connection herewith
at any time.
"Loan Party" means any Borrower or any Guarantor.
"Loan Transactions" means the execution, delivery and performance by
the Loan Parties of each Loan Document to which it is a party, the borrowing of
Loans and the use of the proceeds thereof and the issuance of Letters of Credit
hereunder and all transactions related thereto.
"Loans" means any Term Loan, Ancillary Loan, Swingline Loan or
Revolving Loan.
"Local Time" means (a) with respect to a Loan or Borrowing denominated
in Dollars, Chicago time, (b) with respect to a Loan or Borrowing denominated in
any Foreign Currency (other than an Ancillary Loan), London time, and (c) with
respect to any Ancillary Loan, such time as designated as the local time in the
relevant Ancillary Facility Documents.
"London Administrative Office" means the office of the Administrative
Agent in London, England designated by the Administrative Agent from time to
time as the London Administrative Office for purposes of this Agreement.
"Margin Stock" means "margin stock" as defined in Regulations U and X
of the Board as from time to time in effect.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the U.S. Borrower and its Subsidiaries taken as a whole, (b) the ability of any
Borrower to perform any of its obligations under any Loan Document or (c) the
rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), and/or Swap Agreement Obligations of any one or more of the
U.S. Borrower and its Subsidiaries in an aggregate principal amount exceeding
the Dollar Equivalent of $15,000,000.
"Material Non-Guarantor Subsidiaries" means Agis and of all its
subsidiaries and all other Subsidiaries that are not Guarantors, excluding any
Subsidiaries that are not Guarantors (other than Agis and any of its
subsidiaries) that would not constitute a Significant Subsidiary if considered
as one Subsidiary,
"Maturity Date" means March 16, 2010.
16
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Notice of Termination" shall have the meaning assigned to such term
in Section 2.21(e)(ii).
"Obligations" means all unpaid principal of, accrued and unpaid
interest and fees and reimbursement obligations on the Advances, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other obligations
of the Borrowers or any of them to the Lenders, the Agents, any indemnified
party or any of them arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any obligation
under a sale and leaseback transaction which is not a Capital Lease Obligation,
(ii) any so-called "synthetic lease" or "tax ownership operating lease"
transaction entered into by such Person, (iii) the amount of obligations
outstanding under the legal documents entered into as part of any asset
securitization or similar transaction on any date of determination that would be
characterized as principal if such asset securitization or similar transaction
(including without limitation any Permitted Securitization Transaction) were
structured as a secured lending transaction rather than as a purchase or (iv)
any other transaction (excluding operating leases for purposes of this clause
(iv)) which is the functional equivalent of or takes the place of borrowing but
which does not constitute a liability on the balance sheet of such Person; in
all of the foregoing cases, notwithstanding anything herein to the contrary, the
outstanding amount of any Off-Balance Sheet Liability shall be calculated based
on the aggregate outstanding amount of obligations outstanding under the legal
documents entered into as part of any such transaction on any date of
determination that would be characterized as principal if such transaction were
structured as a secured lending transaction, whether or not shown as a liability
on a consolidated balance sheet of such Person, in a manner reasonably
satisfactory to the Administrative Agent.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, fees, assessments or other
governmental charges that are not delinquent or are being contested in
compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory
17
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the U.S. Borrower or any
Subsidiary; and
(g) statutory and contractual Liens in favor of landlord on real
property leased by the U.S. Borrower or any Subsidiary; provided that, such
U.S. Borrower or Subsidiary is current with respect to payment of all rent
and other amounts due to such landlord under any lease of such real
property, except where the failure to be current in payment would not,
individually or in the aggregate, be reasonably likely to result in a
Material Adverse Effect.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency or instrumentality thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within two years from the date of
acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest or second highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any Agent or any other
commercial bank organized under the laws of the United States of America or
any State thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements and reverse repurchase
agreements with a term of not more than one year for securities described
in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) in the case of any Foreign Subsidiary, (i) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed by the
full faith and credit of such sovereign nation, in each case maturing
within one year from the date of acquisition, so long as the indebtedness
of such sovereign nation is rated at least A by S&P or A2 by Moody's or
carries an equivalent rating from a comparable foreign rating agency or
(ii) investments of the type and maturity described in clauses (b) through
(d) above of foreign obligors, which investments or obligors have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies;
18
(f) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P or Aaa by Moody's and (iii) have portfolio assets of at least
$5,000,000,000;
(g) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's;
(h) repurchase obligations with a term of not more than 30 days
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (c)
above;
(i) "money market" preferred stock maturing within six months after
issuance thereof or municipal bonds in each case issued by a corporation
organized under the laws of any state of the United States, which has a
rating of "A" or better by S&P or Moody's or the equivalent rating by any
other nationally recognized rating agency;
(j) tax exempt floating rate option tender bonds backed by letters of
credit issued by a national or state bank whose long-term unsecured debt
has a rating of AA or better by S&P, Aa2 or better by Moody's or the
equivalent rating by any other nationally recognized rating agency; and
(k) shares of any money market mutual fund rated as least AAA or the
equivalent thereof by S&P, at least Aaa or the equivalent thereof by
Moody's or any other mutual fund at least 95% of whose assets consist of
the type specified in clauses (a) through (g) above.
"Permitted Securitization Transaction" means any asset securitization
transaction (i) by a Securitization Entity, (ii) which is a sale or other
transfer of an interest in accounts or notes receivable, and (iii) which is
otherwise permitted by the terms of this Agreement and any other agreement
binding on the U.S. Borrower or any of its Subsidiaries.
"Perrigo International" means Xxxxxxx International, Inc., a Michigan
corporation, and its successors.
"Perrigo International Cash Secured Loan Guarantee" is defined in
Section 6.01(e)(ii);
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Peso" means the Mexican peso, the lawful currency of the United
Mexican States.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the U.S.
Borrower 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.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan as its prime rate in effect at its principal
office in Chicago; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
19
"Quotation Day" means, 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.
"Register" has the meaning set forth in Section 9.04.
"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.
"Reserve Account" shall have the meaning assigned to such term in
Section 10.02(a).
"Required Lenders" means, at any time, Lenders having Revolving
Commitments and Term Loans representing more than 50% of the sum of the
Aggregate Revolving Commitment and Aggregate Term Loans at such time. If the
Revolving Commitments have terminated or expired, Required Lenders shall be
determined based upon the Revolving Commitments most recently in effect, giving
effect to any assignments. The Revolving Commitments and Term Loan of any
Defaulting Lender shall be disregarded in determining Required Lenders at any
time.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
the U.S. Borrower or any Subsidiary, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such Equity Interests in the U.S. Borrower or any option, warrant or
other right to acquire any such Equity Interests in the U.S. Borrower.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be reduced or increased from time to
time pursuant to Section 2.08 or 9.04. The initial amount of each Lender's
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. The initial aggregate amount of the Lenders'
Revolving Commitments is $250,000,000.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the Dollar Equivalent of the sum of the outstanding principal amount of
such Lender's Revolving Loans and its LC Exposure and Swingline Exposure at such
time.
"Revolving Loan" means a loan made pursuant to Section 2.01(a).
"S&P" means Standard & Poor's.
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to any or all of the functions of the Securities and
Exchange Commission.
"SEC Documents" means all reports, schedules, forms, statements and
other documents filed with the SEC by U.S. Borrower since January 1, 2001 and
prior to the date of this Agreement.
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"Secured Obligations" means, collectively, (i) the Obligations, and
(ii) the Swap Agreement Obligations owing to one or more Lenders or their
Affiliates.
"Securitization Entity" means a wholly-owned Subsidiary of the U.S.
Borrower that engages in no activities other than Permitted Securitization
Transactions and any necessary related activities and owns no assets other than
as required for Permitted Securitization Transactions and no portion of the
Indebtedness (contingent or otherwise) of which is guaranteed by the U.S.
Borrower or any Subsidiary of the U.S. Borrower or is recourse to or obligates
the U.S. Borrower or any Subsidiary of the U.S. Borrower in any way, other than
pursuant to customary representations, warranties, covenants, indemnities,
performance guaranties and other obligations entered into in connection with a
Permitted Securitization Transaction.
"Shekel" means the new Israeli shekel, the lawful currency of the
State of Israel.
"Significant Subsidiary" means any one or more Subsidiaries which, if
considered in the aggregate as a single Subsidiary would be a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Securities
Exchange Act of 1934, as amended.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
Dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Sterling" or "L" means the lawful currency of the United Kingdom of
Great Britain and Northern Ireland.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the U.S. Borrower.
"Swap Agreement" means 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
21
only on account of services provided by current or former directors, officers,
employees or consultants of the U.S. Borrower or the Subsidiaries shall be a
Swap Agreement.
"Swap Agreement Obligations" means any and all obligations of the U.S.
Borrower or any of its Subsidiaries, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor) owing
to any Lender or any of its Affiliates under any and all Swap Agreements.
"Swingline Dollar Loan" means a Swingline Loan denominated in Dollars.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Adjusted Percentage of the
total Swingline Exposure at such time.
"Swingline Foreign Currency Loan" means a Swingline Loan denominated
in a Foreign Currency.
"Swingline Lender" means JPMorgan, in its capacity as lender of
Swingline Loans hereunder and its successors in such capacity. The Swingline
Lender may, in its discretion, arrange for one or more Swingline Loans to be
made by Affiliates of the Swingline Lender, in which case the term "Swingline
Lender" shall include any such Affiliate with respect to Swingline Loans made by
such Affiliate.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Agent" means Bank Leumi, in its capacity as syndication
agent for the Lenders hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Commitment" means, with respect to each Lender, the
commitment of such Lender to make a Term Loan, as such commitment may be reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $100,000,000.
"Term Loans" means the term loans extended by the Lenders to the
Borrower pursuant to Section 2.01(b) hereof.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., Chicago time, on such day (or, if such day
is not a Business Day, on the next preceding Business Day) by the Administrative
Agent from three negotiable certificate of deposit dealers of recognized
standing selected by it.
22
"Transactions" means the Loan Transactions and the Agis Acquisition
Transactions.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate.
"U.S. Borrower" means Xxxxxxx Company, a Michigan corporation, and its
successors.
"Wholly-Owned Subsidiary" means, as to any Person, a subsidiary all of
the Equity Interests of which (except directors' qualifying Equity Interests)
are at the time directly or indirectly owned by such Person and/or another
Wholly-Owned Subsidiary of such Person.
"Withdrawal Liability" means 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.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP; Pro Forma Treatment. 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 date hereof 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 such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith. For purposes of calculating the Leverage Ratio (as used in Section
6.10 and in determining the Applicable Rate) and the Interest Coverage Ratio,
any Acquisition or any sale or other disposition outside the
23
ordinary course of business by the U.S. Borrower or any of the Subsidiaries of
any asset or group of related assets in one or a series of related transactions,
the net proceeds from which exceed $10,000,000, including the incurrence of any
Indebtedness and any related financing or other transactions in connection with
any of the foregoing, occurring during the period for which such ratios are
calculated shall be deemed to have occurred on the first day of the relevant
period for which such ratios were calculated on a pro forma basis acceptable to
the Administrative Agent.
SECTION 1.05. Foreign Currency Calculations. (a) For purposes of
determining the Dollar Equivalent of any Advance denominated in a Foreign
Currency or any related amount, the Administrative Agent shall determine the
Exchange Rate as of the applicable Exchange Rate Date with respect to each
Foreign Currency in which any requested or outstanding Advance is denominated
and shall apply such Exchange Rates to determine such amount (in each case after
giving effect to any Advance to be made or repaid on or prior to the applicable
date for such calculation).
(b) For purposes of any determination under Section 6.01, 6.02, 6.04 or
6.09 or under Article VII, all amounts incurred, outstanding or proposed to be
incurred or outstanding in currencies other than Dollars shall be translated
into Dollars at the currency exchange rates in effect on the date of such
determination; provided that no Default shall arise as a result of any
limitation set forth in Dollars in Section 6.01 or 6.02 being exceeded solely as
a result of changes in currency exchange rates from those rates applicable at
the time or times Indebtedness or Liens were initially consummated in reliance
on the exceptions under such Sections. For purposes of any determination under
Section 6.04 or 6.09, the amount of each investment, asset disposition or other
applicable transaction denominated in a currency other than Dollars shall be
translated into Dollars at the currency exchange rate in effect on the date such
investment, disposition or other transaction is consummated. Such currency
exchange rates shall be determined in good faith by the Borrowers.
SECTION 1.06. 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 Effective 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 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 Effective 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 or any other Foreign Currency.
24
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Revolving Commitments. Subject to the
terms and conditions set forth herein, each Lender agrees to make Revolving
Loans denominated in Dollars and Foreign Currencies to the U.S. Borrower and to
Foreign Subsidiary Borrowers (other than any Foreign Subsidiary Borrower for
which an Ancillary Commitment has been established under Section 2.21) from time
to time during the Availability Period in an aggregate principal amount that
will not result in any of the following:
(i) such Lender's Revolving Credit Exposure exceeding (A) such
Lender's Revolving Commitment minus (B) such Lender's Ancillary
Commitments;
(ii) (A) the Aggregate Revolving Credit Exposure exceeding (B) the
Aggregate Revolving Commitments minus the Aggregate Ancillary Commitments;
(iii) the Dollar Equivalent of the aggregate amount of all Revolving
Loans and Swingline Loans denominated in Foreign Currencies exceeding
$40,000,000.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
(b) Term Loan Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make a Term Loan in Dollars to the U.S. Borrower
on the Effective Date in an aggregate principal amount equal to such Lender's
Term Loan Commitment.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan and Term
Loan shall be made as part of a Borrowing consisting of Loans of the same Type
made by the Lenders, ratably in accordance with their respective Applicable
Adjusted Percentages in the case of Revolving Loans and ratably in accordance
with their respective Term Loan Commitments in the case of Term Loans, on the
date such Loans are made hereunder (or, in the case of Swingline Loans, in
accordance with Section 2.04). Each Ancillary Loan shall be made as part of a
Borrowing consisting of Loans of the same Type made by the applicable Ancillary
Lenders with an Ancillary Commitment for such Ancillary Loan ratably in
accordance with such Ancillary Commitments on the date of such Ancillary Loans
and otherwise in accordance with the applicable Ancillary Facility Document. 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 and the Ancillary 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 2.13, (i) each Revolving Borrowing denominated in
Dollars and each Term Loan shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the applicable Borrower may request in accordance herewith
and (ii) each Revolving Borrowing denominated in a Foreign Currency shall be
comprised entirely of Eurocurrency Loans. Each Swingline Borrowing shall bear
interest at such rate agreed to between the U.S. Borrower and the Swingline
Lender. Each Ancillary Borrowing shall bear interest at such rate agreed to
between the applicable Borrower and the applicable Ancillary Lender.
25
(c) Each Borrowing shall be in an aggregate amount that is an integral
multiple of the applicable Borrowing Multiple and not less than the applicable
Borrowing Minimum, provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Revolving
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Borrowings of more than one
Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten Eurocurrency Borrowings outstanding.
(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
Maturity Date.
(e) Notwithstanding any other provision of this Agreement, each Lender at
its option may make any ABR Loan or Eurocurrency Loan or provide any Ancillary
Facility or Ancillary Loan by causing any domestic or foreign office, branch or
Affiliate of such Lender (an "Applicable Lending Installation") to make such
Loan that has been designated by such Lender to the Administrative Agent. All
terms of this Agreement shall apply to any such Applicable Lending Installation
of such Lender and the Loans and any Notes issued hereunder or Ancillary
Facility Documents executed in connection herewith shall be deemed held by each
Lender for the benefit of any such Applicable Lending Installation. Each Lender
may, by written notice to the Administrative Agent and the U.S. Borrower,
designate replacement or additional Applicable Lending Installations through
which Loans will be made by it and for whose account Loan payments are to be
made. Each Lender will promptly notify the U.S. Borrower and the Administrative
Agent of any event of which it has actual knowledge occurring after the date
hereof which will entitle such Lender to compensation pursuant to this Section
2.14 and will designate a different Applicable Lending Installation if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender or contrary to its policies.
SECTION 2.03. Requests for Revolving or Term Loan Borrowings. To
request a Revolving Borrowing or a Term Loan 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., Chicago 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 LC Disbursement as
contemplated by Section 2.05(e) may be given not later than 10:00 a.m., Chicago
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) in the case of a Revolving Borrowing requested by a Foreign
Subsidiary Borrower, the currency (which may be Dollars or a Foreign
Currency) in which such Borrowing is to be denominated;
(iii) the aggregate amount of the requested Borrowing (expressed in
Dollars or the applicable Foreign Currency);
(iv) the date of such Borrowing, which shall be a Business Day;
26
(v) in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(vi) 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
(vii) 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 or Term Loan Borrowing
is specified, then the requested Revolving Borrowing or Term Loan Borrowing
shall be an ABR Borrowing, unless such Revolving Borrowing is denominated in a
Foreign Currency, in which case such Revolving 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. Requests for
Ancillary Loans shall be made in accordance with the applicable Ancillary
Facility Document.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender may make Swingline Loans to any Borrower
(other than a Borrower under an Ancillary Facility) from time to time during the
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the Dollar Equivalent of the aggregate principal
amount of outstanding Swingline Loans exceeding $25,000,000, (ii) the (A)
Aggregate Revolving Credit Exposure exceeding (B) the Aggregate Revolving
Commitments minus the Aggregate Ancillary Commitments or (iii) the Aggregate
Total Revolving Exposure exceeding the Aggregate Revolving Commitments. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the U.S. Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Borrowing, the applicable Borrower shall notify
the Applicable Agent of such request by telephone (confirmed in a writing
acceptable to the Applicable Agent if requested by the Applicable Agent), not
later than 2:00 p.m., Chicago time, on the day of a proposed Swingline Loan in
the case of Swingline Loans denominated in Dollars to the U.S. Borrower and not
later than 10:00 a.m., Local Time, on the day of any other proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify (i) the requested
date (which shall be a Business Day), (ii) whether such Swingline Loan is to be
denominated in Dollars or a Foreign Currency, (iii) the amount of the requested
Swingline Borrowing, and (iv) in the case of a Swingline Borrowing denominated
in a Foreign Currency, the Interest Period requested 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 the Swingline
Lender of any such notice received from a Borrower. The Swingline Lender and the
applicable Borrower shall agree upon the interest rate applicable to such
Swingline Loan, provided that if such agreement cannot be reached prior to 2:00
p.m., Chicago time, on the day of a proposed Swingline Loan in the case of
Swingline Loans denominated in Dollars to the U.S. Borrower and not later than
10:00 a.m., Local Time, on the day of any other proposed Swingline Loan then
such Swingline Loan shall not be made. Any funding of a Swingline Loan by the
Swingline Lender shall be made 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 Lender. The
Applicable Agent will make such Swingline Loan available to the applicable
Borrower by promptly crediting the amounts so received, in like funds, to the
general deposit account of the applicable Borrower with the Applicable Agent
(or, in the case of a Swingline Borrowing made to
27
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e),
by remittance to the applicable Issuing Bank).
(c) The Swingline Lender may by written notice given to the Applicable
Agent not later than 1:00 p.m., Chicago time (or 11:00 a.m. London time in the
case of any Swingline Loan denominated in any Foreign Currency or made to any
Foreign Subsidiary Borrower), on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the outstanding
Swingline Loans. Such notice shall specify the aggregate amount of such
Swingline Loans in which the Lenders will participate, and such amount of
Swingline Loans, if denominated in Foreign Currency shall be converted to
Dollars and shall bear interest at the Alternate Base Rate. Promptly upon
receipt of such notice, the Applicable Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Applicable Adjusted Percentage
of such Swingline Loan or Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Applicable Agent, for the account of the Swingline Lender, such Lender's
Applicable Adjusted Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its respective obligation to acquire participations
in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each 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 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 Swingline Lender the amounts
so received by it from the 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 Swingline
Lender. Any amounts received by the 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 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 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, the U.S. Borrower may request the issuance of
Letters of Credit denominated in Dollars for its own account or the account of a
Subsidiary acceptable to the Issuing Bank, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. 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 U.S.
Borrower to, or entered into by the U.S. Borrower and a Subsidiary with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the U.S. Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of
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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, the name and address of
the account party thereof (which shall be the U.S. Borrower or a Subsidiary, and
if a Subsidiary then the U.S. Borrower and such Subsidiary shall be jointly and
severally liable with respect to all Obligations relating to such Letter of
Credit), the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the U.S. Borrower (and the
applicable Subsidiary if such Letter of Credit is to be issued for the account
of a Subsidiary) also shall submit a letter of credit application on the 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 U.S.
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $50,000,000, (ii) the (A) Aggregate Revolving Credit Exposure shall not
exceed (B) the Aggregate Revolving Commitments minus the Aggregate Ancillary
Commitments and (iii) the sum of the Aggregate Total Revolving Exposure shall
not exceed the Aggregate Revolving 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 (provided that any Letter of Credit may
provide for additional one year renewals thereof subject to the approval of the
Administrative Agent prior to the time of such renewal) and (ii) the date that
is five Business Days prior to the Maturity Date.
(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 Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Adjusted Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable Adjusted
Percentage of each LC Disbursement made by the Issuing Bank and 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. Each 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 Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the U.S. Borrower and any applicable Subsidiary
(if such Letter of Credit was issued for the account of a Subsidiary) shall
jointly and severally reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, Local Time, on the date that such LC Disbursement is made, if the
U.S. Borrower shall have received notice of such LC Disbursement prior to Local
Time, on such date, or, if such notice has not been received by the U.S.
Borrower prior to such time on such date, then not later than 12:00 noon, Local
Time, on (i) the Business Day that the U.S. Borrower receives such notice, if
such notice is received prior to 10:00 a.m., Local Time, on the day of receipt,
or (ii) the Business Day immediately following the day that the U.S. Borrower
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that 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
29
or Swingline Loan in an equivalent amount and, to the extent so financed, the
U.S. Borrower's and any applicable Subsidiary's obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the U.S. Borrower and any applicable Subsidiary fail to make
such payment when due, such amount, if denominated in Foreign Currency shall be
converted to Dollars and shall bear interest at the Alternate Base Rate and the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the U.S. Borrower and any applicable Subsidiary in
respect thereof and such Lender's Applicable Adjusted Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Adjusted Percentage of the payment then due
from the U.S. Borrower and any applicable Subsidiary, 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 Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the U.S. Borrower or any applicable
Subsidiary pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear. Any payment made by
a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
U.S. Borrower and any applicable Subsidiary of their obligation to reimburse
such LC Disbursement.
(f) Obligations Absolute. The U.S. Borrower's and any applicable
Subsidiary's obligation to reimburse LC 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 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 or any applicable Subsidiary's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor 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 the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the U.S. Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the U.S. Borrower and any applicable Subsidiary to the extent
permitted by applicable law) suffered by the U.S. Borrower and any applicable
Subsidiary that are caused by the 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. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
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
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility
30
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 Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the U.S. Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the U.S. Borrower and any applicable Subsidiary of
their obligation to reimburse the Issuing Bank and the Lenders with respect to
any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the U.S. Borrower or the applicable Subsidiary shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the U.S. Borrower
and or the applicable Subsidiary reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans; provided that, if the U.S.
Borrower or any applicable Subsidiary fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.12(e) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The 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 Administrative
Agent shall notify the Lenders of any such replacement of the 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 2.11(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the 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 an 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, on the Business Day that the U.S. Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the U.S. Borrower and any applicable Subsidiary (with respect to any
Letters of Credit issued for its account only, jointly and severally with the
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
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the U.S. Borrower or any applicable
Subsidiary with respect to any Letters of Credit issued for its account
described in clause (h) or (i) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
31
obligations of the U.S. Borrower and any applicable Subsidiary 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 the Administrative Agent and at the
U.S. Borrower's and any applicable Subsidiary's risk and expense, 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 the Issuing Bank for LC Disbursements for
which it 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
and any applicable Subsidiary for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the U.S. Borrower under
this Agreement. If the U.S. Borrower and any applicable Subsidiary 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 or applicable Subsidiary within three
Business Days after all Events of Default have been cured or waived.
(k) Additional Issuing Banks. From time to time, the Administrative Agent
may designate other Lenders (in addition to JPMorgan) that agree (in their sole
discretion) to act in such capacity and are satisfactory to the Administrative
Agent and the U.S. Borrower as Issuing Banks. Each such additional Issuing Bank
shall execute such agreements requested by the Administrative Agent and shall
thereafter be an Issuing Bank hereunder for all purposes, provided that any such
additional Issuing Bank shall only issue such Letters of Credit as approved by
the Administrative Agent.
(l) 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 changed), (iii) on each
Business Day on which such Issuing Bank makes any LC Disbursement, the date of
such LC Disbursement and the amount of such LC Disbursement and (iv) on any
other Business Day, such other information as the Administrative Agent shall
reasonably request.
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
such location determined by the Administrative Agent, 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 LC 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
32
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 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, the 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 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
33
(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 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/Increases of Commitments. (a)
Unless previously terminated, the Revolving Commitments shall terminate on the
Maturity Date and the Term Loan Commitments shall terminate at 5:00 p.m.,
Chicago time, on the Effective Date.
(b) The U.S. Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$10,000,000 and not less than $10,000,000 and (ii) the U.S. Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.10,
the Aggregate Total Revolving Exposure would exceed the Aggregate Revolving
Commitments.
(c) The U.S. Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Revolving 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 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 Commitments delivered by the U.S.
Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, 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 Revolving
Commitments shall be made ratably among the Lenders in accordance with their
respective Revolving Commitments.
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(d) Subject to the conditions set forth below, the U.S. Borrower may, upon
at least ten (10) days (or such other period of time agreed to between the
Administrative Agent and the U.S. Borrower) prior written notice to the
Administrative Agent, increase the Aggregate Revolving Commitments from time to
time, either by designating a lender not theretofore a Lender to become a Lender
(such designation to be effective only with the prior written consent of the
Administrative Agent which shall not be unreasonably withheld) or by agreeing
with an existing Lender that such Lender's Revolving Commitment shall be
increased (thus increasing the Aggregate Revolving Commitments); provided that:
(i) no Default shall have occurred and be continuing hereunder as of
the effective date of such increase;
(ii) the representations and warranties made by the Borrowers and
contained in Article III shall be true and correct on and as of the
effective date with the same effect as if made on and as of such date
(other than those representations and warranties that by their terms speak
as of a particular date, which representations and warranties shall be true
and correct as of such particular date);
(iii) the amount of such increase in the Aggregate Revolving
Commitments shall not be less than $10,000,000, and shall not cause the
Aggregate Revolving Commitments to exceed $325,000,000;
(iv) The Borrowers and the Lender or lender not theretofore a Lender,
shall execute and deliver to the Administrative Agent, a Lender Addition
and Acknowledgement Agreement, in form and substance satisfactory to the
Administrative Agent and acknowledged by the Administrative Agent and each
Borrower;
(v) no existing Lender shall be obligated in any way to increase its
Revolving Commitment;
(vi) the Administrative Agent shall consent (which consent shall not
be unreasonably withheld) to such increase and the U.S. Borrower shall have
complied with such other conditions in connection with such increase as may
be required by the Administrative Agent.
(e) Upon the execution, delivery, acceptance and recording of the Lender
Addition and Acknowledgement Agreement, from and after the effective date
specified in a Lender Addition and Acknowledgement Agreement, such existing
Lender shall have a Revolving Commitment as therein set forth or such other
Lender shall become a Lender with a Revolving Commitment as therein set forth
and all the rights and obligations of a Lender with such a Revolving Commitment
hereunder.
(f) Upon its receipt of a Lender Addition and Acknowledgement Agreement
together with any note or notes, if requested, subject to such addition and
assumption and the written consent to such addition and assumption, the
Administrative Agent shall, if such Lender Addition and Acknowledgement
Agreement has been completed and the other conditions described in this Section
2.08 have been satisfied:
(i) accept such Lender Addition and Acknowledgement Agreement;
(ii) record the information contained therein in the Register; and
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(iii) give prompt notice thereof to the Lenders and the U.S. Borrower
and deliver to the Lenders a schedule reflecting the new Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Term Loan on the
Maturity Date and (iii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of the Maturity Date and the date 30 days
after such Swingline Loan is made or such earlier date agreed to between the
U.S. Borrower and the Swingline Lender. Each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the Applicable Agent for the account of each
Lender the then unpaid principal amount of each Revolving Loan and Ancillary
Loan to such Foreign Subsidiary Borrower on the Maturity 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 Class 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 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 the form of Exhibit E hereto or such other 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. Prepayment of Loans. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The applicable Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing, not later than 2:00 p.m.,
Local time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Revolving Borrowing, not later than 2:00 p.m., Local
time, one Business Day before the date of prepayment, (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, Local time, on the
date of prepayment or (iv) in the case of prepayment of an Ancillary Loan, as
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specified in the applicable Ancillary Facility Document. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.
(c) In the event and on such occasion that (i) (A) the sum of (1) the
Aggregate Revolving Credit Exposure and (2) the Aggregate Ancillary Commitments
exceeds (B) (x) 105% of the Aggregate Revolving Commitments solely as a result
of currency fluctuations or (y) the Aggregate Revolving Commitments (other than
as a result of currency fluctuations), the Borrowers shall prepay Aggregate
Revolving Credit Exposure owing by such Borrowers, or reduce Aggregate Ancillary
Commitments, in an aggregate amount equal to the amount by which (A) the sum of
(1) the Aggregate Revolving Credit Exposure and (2) the Aggregate Ancillary
Commitments exceeds the Aggregate Revolving Commitments.
SECTION 2.11. Fees. (a) The U.S. Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Revolving Commitment of
such Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Revolving Commitment
terminates; provided that, if such Lender continues to have any Revolving Credit
Exposure or Ancillary Facility Exposure after its Revolving Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure and Ancillary Facility Exposure from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Revolving Credit Exposure or
Ancillary Facility Exposure. Accrued facility fees shall be payable in arrears
on the 15th day of the month immediately following the last day of March, June,
September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any facility fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) The U.S. Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurocurrency Revolving Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate or rates per annum separately agreed upon between the U.S.
Borrower and the Issuing Bank on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the 15th day of the month immediately
following such last day, commencing
37
on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The U.S. Borrower agrees to pay to the Administrative Agent and to the
Syndication Agent, for their own account, fees payable in the amounts and at the
times separately agreed upon between the U.S. Borrower and the Administrative
Agent and between the U.S. Borrower and the Syndication Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate.
(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 Rate.
(c) Each Swingline Loan shall bear interest as determined in Section 2.04.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any Borrower hereunder is not paid
when due (after the expiration of any applicable grace or cure period), 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, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; 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 Revolving 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 shall be
computed on the basis of a year of 365 days, (ii) interest on Borrowings
denominated in any other Foreign Currency for which it is required by applicable
law or customary to compute interest on the basis of a year of 365 days or, if
required by applicable law or customary, 366 days in a leap year, shall be
computed on such basis, and (iii) 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
38
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. 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
(b) the Applicable Agent is advised by the Required Lenders 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 Administrative Agent determines adequately reflects the
costs to the Lenders of making or maintaining such Borrowing, 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 Administrative Agent determines adequately reflects the costs to the
Lenders of making or maintaining such Borrowing.
SECTION 2.14. 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 the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or any Advance made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
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 the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
applicable Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the 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 the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender
39
or the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or the
Issuing Bank's holding company with respect to capital adequacy), then from time
to time the applicable Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the U.S. Borrower and shall be conclusive
absent manifest error. The applicable Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the U.S. Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the U.S. Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the 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 270-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency 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 (regardless of whether such notice may be revoked
under Section 2.10(b) and is revoked in accordance therewith), 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 the U.S. Borrower pursuant
to Section 2.18, then, in any such event, the applicable Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be deemed to include an 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, 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 Dollar deposits of a comparable amount and period 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 the applicable Borrower and shall be conclusive
absent manifest error. The applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. 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 any
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)
40
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of 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 the U.S. Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) 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 the U.S. Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the U.S. Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative 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 a Borrower
has paid additional amounts pursuant to this Section 2.16, 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 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative 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
the Administrative 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 the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
any Borrower or any other Person.
SECTION 2.17. 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 LC Disbursements, or of amounts payable under Section 2.14,
2.15, 2.16 or 2.20, or otherwise) prior to 1:00 p.m., Local Time, on the date
when due, in
41
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 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 Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16, 2.20 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 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.
(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 LC 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 LC
Disbursements then due from such Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(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 Ancillary Loans, Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Ancillary Loans, Revolving
Loans, Term Loans and participations in LC 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 Ancillary Loans, Revolving Loans, Term Loans and
participations in LC 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 Ancillary Loans, Revolving Loans, Term
Loans and participations in LC 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 LC 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.
42
(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 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), 2.17(d) or 9.03(c), 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 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. 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 2.14, 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 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then such
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such 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) such Borrower
shall have received the prior written consent of the Administrative Agent (and
if a Commitment is being assigned, the Issuing Bank), 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 LC
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 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling such Borrower to require
such assignment and delegation cease to apply.
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SECTION 2.19. Foreign Subsidiary Borrowers. On or after the Effective
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 obtain Revolving Loans
and/or (ii) to request the creation of Ancillary Facilities under Section 2.21,
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 shall be outstanding hereunder or
any Ancillary Facility under which Ancillary Loans 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 Lender.
SECTION 2.20. 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 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 F 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 and 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 2.21. Ancillary Facilities. (a) General. If a Foreign
Subsidiary Borrower and a Lender or Lenders agree, subject to (i) compliance
with the requirements set forth in this Section 2.21 and (ii) such Foreign
Subsidiary Borrower having complied with Sections 2.19 and 4.03, such Lenders
shall be permitted to provide an Ancillary Facility to such Foreign Subsidiary
Borrower. The Aggregate Ancillary Commitments shall not at any time exceed
$40,000,000.
(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 (or such
44
shorter period agreed to by the Administrative Agent) prior to the first date on
which such Ancillary Facility is proposed to be made available:
(i) 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 Maturity Date);
(C) the type of Ancillary Facility being provided;
(D) the identity of the Ancillary Lender(s) (which shall be
reasonably acceptable to the Administrative Agent); 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 each 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 $40,000,000) 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 Financial 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 Administrative Agent may
reasonably request in connection with such Ancillary Facility.
The Administrative Agent shall give notice to each Lender of such matters.
(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 (or such shorter
period agreed to by the Administrative Agent) 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 Financial
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 Lender of such
matters.
(d) Terms of Ancillary Facility. Each Ancillary Facility shall contain
terms and conditions acceptable to the applicable Ancillary Lenders 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 such Foreign
Subsidiary Borrower; (iii) provide that the Ancillary Commitment of the
applicable Ancillary Lenders under such Ancillary Facility shall not exceed such
Ancillary Lender's Available Unused Commitment and that, in the event and on
such
45
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 Maturity Date; (v) provide that
the conditions set forth in Article IV 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 Lenders in accordance with the terms of such Ancillary
Facility and, upon the effective date of such termination (an "Ancillary
Facility Termination Date"), all Ancillary Loans under such Ancillary
Facility shall be repaid in full.
(ii) Notwithstanding anything to the contrary set forth in the
Ancillary Facility Document relating to the Ancillary Facility to be
terminated, the Ancillary Lenders 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 ten 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 Lenders;
(B) the aggregate amount of Ancillary Loans under the applicable
Ancillary Facility (which shall not exceed the Ancillary Commitment in
respect of such Ancillary Facility); and
(C) the applicable Ancillary Facility Termination Date.
(f) Cancellation 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 cancellation of all or a portion of such
Ancillary Facility by delivery of a notice in writing to the Administrative
Agent and the applicable Ancillary Lenders, specifying the Ancillary Facility to
be canceled and the proposed cancellation date. Such notice shall be delivered
not less than five Business Days prior to the proposed cancellation date. Such
cancellation shall be effective as of the proposed cancellation date unless the
Ancillary Facility Exposure under such Ancillary Facility has not been reduced
to zero as of such date.
(g) Additional Information. Each Ancillary Lender shall report in writing
to the Administrative Agent (i) on the last Business Day of each month and of
each Fiscal Quarter of the U.S. Borrower the Ancillary Facility Exposure for the
last day of the month or Fiscal Quarter then ending, as the case may be for each
Ancillary Facility under which it is an Ancillary Lender and (ii) on any other
Business Day requested by the Administrative Agent, the Ancillary Facility
Exposure for such day 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.
46
(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 Commitments
shall have been previously terminated.
SECTION 2.22. Guaranties; Collateral. (a) To guarantee or secure, as
the case may be, the payment when due of the Secured Obligations, the U.S.
Borrower shall cause each of the following to execute and deliver Guaranties to
the Administrative Agent: (i) All Domestic Subsidiaries of the Company will
Guarantee all Secured Obligations; (ii) if it will not result in a material tax
consequence (as reasonably agreed upon by the U.S. Borrower and the
Administrative Agent), all Foreign Subsidiaries will Guarantee all Secured
Obligations to the extent they are legally permitted to do so; (iii) the U.S.
Borrower will Guarantee all Secured Obligations of the Foreign Subsidiary
Borrowers; and (iv) all subsidiary and parent companies of any Foreign
Subsidiary Borrower organized in the jurisdiction of such Foreign Subsidiary
Borrower will Guarantee all Secured Obligations of such Foreign Subsidiary
Borrower to the extent they are legally permitted to do so and such guarantee
will not result in a material adverse tax consequence (as reasonably agreed upon
by the U.S. Borrower and the Administrative Agent). Notwithstanding the
foregoing, Securitization Entities shall not be required to be Guarantors.
(b) If any Foreign Subsidiaries could not execute a Guaranty for all
Secured Obligations because that Guaranty would result in a material adverse tax
consequence (as reasonably agreed upon by the U.S. Borrower and the
Administrative Agent), then the Administrative Agent and the Syndication Agent
reserve the right (i) to require that 65% (or such greater amount that may be
pledged without a material adverse tax consequence) of the Equity Interests of
such Foreign Subsidiaries that are owned directly by the U.S Borrower or a
Domestic Subsidiary be pledged pursuant to Collateral Documents satisfactory to
the Administrative Agent and (ii) to require that 65% (or such greater amount
that may be pledged without a material adverse tax consequence, as reasonably
agreed upon by the U.S. Borrower and the Administrative Agent) of the Equity
Interests of any other such Foreign Subsidiary be pledged pursuant to Collateral
Documents satisfactory to the Administrative Agent to the extent such pledge is
legally permitted and such pledge will not result in a material tax consequence
(as reasonably agreed upon by the U.S. Borrower and the Administrative Agent).
(c) Notwithstanding the foregoing, the U.S. Borrower shall not be obligated
to cause certain Subsidiaries to deliver the Guaranties required under Section
2.22(a) above or cause the pledge of the Equity Interests of certain Foreign
Subsidiaries required under Section 2.22(b) to the extent that all such
Subsidiaries that have not delivered the Guaranties required under Section
2.22(a) above and all such Foreign Subsidiaries that are required to have their
Equity Interests pledged under Section 2.22(b) have not had 65% or more of their
Equity Interests pledged under Section 2.22(b) would not constitute a
Significant Subsidiary if considered as one Subsidiary. In making such
determination under this Section 2.22(c), the assets or income of any Subsidiary
shall be determined using the consolidated assets and income of such Subsidiary
and its subsidiaries. It is acknowledged that as of the Effective Date Agis and
the subsidiaries of Agis are not required to be Guarantors or have 65% or more
of their Equity Interests pledged because it would result in a material tax
consequence, but 65% of the Equity Interests of Israeli Acquisition Co. may be
pledged without a material tax consequence.
(d) Each of the Borrowers agrees that it will promptly notify the
Administrative Agent if any additional Guaranties or pledges of the Equity
Interests of Foreign Subsidiaries are required at any time by
47
the terms of Sections 2.22(a), (b) and (c) above (whether due to the formation
or acquisition of any Subsidiary, any increase in the assets or income of any
Subsidiary or due to any other reason that would require additional Guaranties
or pledges of the Equity Interests of Foreign Subsidiaries under the terms of
Sections 2.22(a), (b) and (c) above). Each of the Borrowers agrees that it will
and will promptly cause each such Subsidiary to execute and deliver, promptly
upon the request of the Administrative Agent, such additional Guaranties or
Collateral Documents and other agreements, documents and instruments, each in
form and substance satisfactory to the Administrative Agent, sufficient to grant
to the Administrative Agent, for the benefit of the Lenders and the
Administrative Agent, the Guaranties and Liens required by this Agreement and
the Collateral Documents. Each Borrower shall deliver, and cause each such
Subsidiary to deliver, to the Administrative Agent all such certificates, legal
opinions, share certificates and stock xxxxxx, xxxx searches, organizational and
other charter documents, resolutions and other documents and agreements as the
Administrative Agent may request in connection therewith.
(e) Notwithstanding the foregoing, and provided that the Guaranty of X.
Xxxxxxx Company, Xxxxxxx Company of South Carolina, Inc., Perrigo
Pharmaceuticals Company, Xxxxxxx International, Inc. and Xxxxxxx International
Holdings, Inc. and a pledge of 65% of the Equity Interests of Israeli
Acquisition Co. and all agreements and documents in connection therewith
required by the Agents are delivered on or before the Effective Date, the U.S.
Borrower shall not be required to comply with this Section 2.22 with respect to
any other Subsidiary in existence on the Effective Date prior to 30 days after
the Effective Date.
ARTICLE III
Representations and Warranties
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement, each Borrower represents and warrants to each Lender and
the Administrative Agent, that the following statements are true, correct and
complete (it being understood and agreed that the representations and warranties
made on the Effective Date are deemed to be made concurrently with, and giving
effect to, the consummation of the Agis Acquisition and the other Transactions):
SECTION 3.01. Organization; Powers. Each of the U.S. Borrower and its
Subsidiaries is 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, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within each Loan Party's corporate powers and have been duly authorized by all
necessary corporate, stockholder, shareholder and other action. Each Loan
Document has been duly executed and delivered by each Loan Party party thereto
and assuming due execution and delivery by all parties other than the Loan
Parties, constitutes a legal, valid and binding obligation of each Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, including without
48
limitation those items described in Section 2.4 and Section 3.4 of the Agis
Merger Agreement, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the U.S. Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the U.S. Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
the U.S. Borrower or any of its Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of the U.S. Borrower or any of
its Subsidiaries, except to the extent such violation or default or Lien, could
not, in the case of subparts (c) or (d) reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
U.S. Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the Fiscal Year ended June 26, 2004, reported on by BDO Xxxxxxx, independent
public accountants, and (ii) as of and for the Fiscal Quarter and the portion of
the Fiscal Year ended December 25, 2004, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the U.S. Borrower
and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, except as may be indicated in the notes thereto and
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(b) Since June 26, 2004, there has been no material adverse change in the
business, assets, operations, prospects or condition, financial or otherwise, of
the U.S. Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the U.S. Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except where such failure to
have good title or valid leasehold interests could not reasonably be expected to
result in a Material Adverse Effect. None of the assets of the U.S. Borrower or
any of its Subsidiaries is subject to any Lien other than Liens permitted under
Section 6.02.
(b) Each of the U.S. Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the U.S. Borrower and
its Subsidiaries does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the U.S. Borrower, threatened
against or affecting the U.S. Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters and as set forth in the SEC Documents) or (ii) that involve this
Agreement or the Transactions.
(b) Except as set forth in the SEC Documents and the Disclosed Matters and
except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in 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) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any
49
basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Except as set forth
in the SEC Documents and the Disclosed Matters, each of the U.S. Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon 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. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the U.S.
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Except as set forth in the Disclosed Matters,
each of the U.S. Borrower and its Subsidiaries has timely (after taking into
account all available extensions) filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the U.S.
Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Each of the U.S. Borrower, 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. The excess of the present value of all benefit
liabilities under each Plan of the U.S. Borrower, 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. Each of 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 3.11. Disclosure. The U.S. Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions known to
the U.S. Borrower to which it or any of its Subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of
50
the U.S. Borrower to the Administrative Agent or any Lender in connection with
the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading in any material respect; provided that, with respect to
projected financial information, the U.S. Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12 Use of Advances. Each Borrower will use the proceeds of
the Advances for the Agis Acquisition, refinancing existing indebtedness,
working capital, its general corporate purposes and Acquisitions. Neither the
U.S. Borrower nor any of its Subsidiaries extends or maintains, in the ordinary
course of business, credit for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any
Advance will be used in any manner that is in violation of any applicable law or
regulation (including without limitation Regulations U or X of the Board). After
applying the proceeds of each Advance, Margin Stock will not constitute more
than 25% of the value of the assets (either of any Borrower alone or of the U.S.
Borrower and its Subsidiaries on a consolidated basis) that are subject to any
provisions of this Agreement that may cause the Advances to be deemed secured,
directly or indirectly, by Margin Stock. The Equity Interests of Agis is not
Margin Stock.
SECTION 3.13 Labor Matters. There are no labor controversies pending
or, to the best of the U.S. Borrower's knowledge, threatened against the U.S.
Borrower or any Subsidiary, which could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.14. Agis Acquisition. Within one Business Day after the
Effective Date, the Borrowers will own, free and clear of all Liens other than
those allowed hereunder, 100% of the Equity Interests of Agis and shall have
otherwise completed the Agis Acquisition in accordance in all material respects
with the Agis Acquisition Documents and in accordance in all material respects
with all laws, rules and regulations, whether foreign or domestic, and all
orders or other determinations of any Governmental Authority. Complete and
correct copies of all Agis Acquisition Documents have been delivered to the
Agent before the Effective Date. All conditions precedent required as of closing
under the Agis Acquisition Documents to complete the Agis Acquisition have been
completed or waived. The total consideration paid or payable (including without
limitation all Indebtedness assumed, guaranties or other liabilities incurred,
all deferred payments and all other direct or indirect consideration) for the
Agis Acquisition will not exceed the amount described in the Agis Merger
Agreement delivered to the Administrative Agent prior to the Effective Date
(provided that changes in the amount of the Indebtedness of Agis and its
subsidiaries to the extent permitted under Section 4.1(i) of the Agis Merger
Agreement shall be permitted) and substantially all costs and expenses in
connection with the Agis Acquisition are described in the flow of funds memo
delivered to the Administrative Agent prior to the Effective Date. All
representations in the Agis Acquisition Certificate are true and correct in all
material respects. Agis and Israeli Merger Co. will merge on the Effective Date,
with Agis being the surviving entity. To the U.S. Borrower's knowledge, since
September 30, 2004 there has been no material adverse change in the business,
property, prospects, condition (financial or otherwise) or results of operations
of Agis and its Subsidiaries taken as a whole.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which
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each of the following conditions is satisfied (or waived in accordance with
Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each
Lender and Loan Party hereto either (i) a counterpart of each Loan Document to
which it is a party 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) that such party has signed a
counterpart of each such Loan Document.
(b) The Administrative Agent shall have received the favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of counsel for the U.S. Borrower and the Guarantors
substantially in the form of Exhibits G-1 and covering such other matters
relating to the U.S. Borrower and the Guarantors, this Agreement or the
Transactions as the Required Lenders shall reasonably request and the favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Israeli counsel for the U.S. Borrower and the Guarantors
with respect to such matters relating to the Collateral Documents as the
Required Lenders shall reasonably request. The Borrowers hereby request such
counsels to deliver such opinions.
(c) 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 the Loan Parties,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the U.S. Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received (i) satisfactory audited
consolidated financial statements of the U.S. Borrower and its Subsidiaries for
the two most recent Fiscal Years ended prior to the Effective Date, (ii)
satisfactory unaudited interim consolidated financial statements of the U.S.
Borrower and its Subsidiaries for each quarterly period ended subsequent to the
date of the latest financial statements delivered pursuant to clause (i) of this
paragraph, and (iii) such other financial statements reasonably requested by the
Administrative Agent, a compliance certificate and a solvency certificate from a
Financial Officer of the U.S. Borrower, each satisfactory to the Required
Lenders.
(f) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Effective Date, including, to the extent
invoiced by the relevant Person, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the U.S. Borrower hereunder on the
Effective Date.
(g) The U.S. Borrower and its Subsidiaries shall have obtained all material
Governmental Authorizations and all material consents of other Persons, in each
case that are necessary in connection with the Agis Acquisition and the other
transactions contemplated by the Agis Acquisition Documents, and each of the
foregoing shall be in full force and effect. All applicable waiting periods
shall have expired without any action being taken by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
completion of the Agis Acquisition or the financing thereof. No action, request
for stay, petition for review or rehearing, reconsideration, or appeal with
respect to any of the foregoing shall be
52
pending, and the time for any applicable Governmental Authority to take action
to set aside its consent on its own motion shall have expired.
(h) The Administrative Agent shall have received all Agis Acquisition
Documents and shall be reasonably satisfied with the form, structure and terms
of the Agis Acquisition and all related transactions, the legal and the
regulatory aspects of the Agis Acquisition and all related transactions and all
other legal (including tax implications), financial and regulatory matters
relating to the Agis Acquisition and related transactions.
(i) The Administrative Agent shall have received all Israeli Acquisition
Cash Secured Loan Documents and shall be reasonably satisfied with the form,
structure and terms of the Israeli Acquisition Cash Secured Loan and all related
transactions.
(j) (x) All conditions precedent to the Agis Acquisition shall have been
satisfied or waived pursuant to the Agis Acquisition Documents; and (y) the
Administrative Agent shall have received a certificate (the "Agis Acquisition
Certificate") of the U.S. Borrower stating that the Agis Acquisition will be
consummated substantially in accordance with the Agis Acquisition Documents and
this Agreement on the date one Business Day after the Effective Date and
containing such other certifications as may be reasonably required by the
Administrative Agent.
(k) The Administrative Agent shall have received a certificate from a
Financial Officer concerning the solvency and other appropriate factual
information with respect to the U.S. Borrower and its Subsidiaries in form and
substance satisfactory to the Administrative Agent with respect to solvency.
(l) The Administrative Agent shall have received reasonably satisfactory
results of due diligence investigations of Agis (including without limitation
liabilities and contingent liabilities (e.g., environmental, retiree medical
benefits, ERISA, etc.) and contractual obligations and a review of financial
statements on Agis satisfactory to the Administrative Agent).
(m) There shall be no material adverse change in Agis or its business,
operations, property, condition (financial or otherwise) or prospects as
reflected in the financial statements for Agis delivered to the Administrative
Agent prior to the Effective Date.
(n) All legal (including tax implications) and regulatory matters shall be
reasonably satisfactory to the Administrative Agent and all due diligence
reviews of all litigation of the U.S. Borrower and its Subsidiaries.
(o) The Loan Parties shall have delivered such other documents as the
Administrative Agent, the LC Issuer, any Lender or their respective counsel may
have reasonably requested.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 3:00 p.m., Chicago time, on March 17, 2005 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of
53
Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties set forth in the
Loan Documents shall be true and correct in all material respects on and as of
the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable; and
(b) At the time of and immediately after giving effect to such Borrowing or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
SECTION 4.03. Credit Events Relating to Foreign Subsidiary Borrowers.
The obligations of (x) the Lenders to make Loans to any Foreign Subsidiary that
becomes a Foreign Subsidiary Borrower after the Effective Date and (y) 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 2.19, are subject to the satisfaction of the following conditions (which
are in addition to the conditions contained in Sections 4.01 and 4.02):
(a) 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
(b) the Administrative Agent shall have received such documents (including
without limitation legal opinions substantially in the form of Exhibit G-2) and
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.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the U.S. Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other
Information. The U.S. Borrower will furnish to the Administrative Agent:
(a) within 90 days (or such earlier date as the Company may be required to
file its applicable annual report on Form 10-K by the rules and regulations of
the SEC) after the end of each Fiscal Year of the U.S. Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year,
54
setting forth in each case in comparative form the figures for the previous
Fiscal Year, all reported on by BDO Xxxxxxx or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the U.S. Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied (except as may
be indicated in the notes thereto);
(b) within 45 days (or such earlier date as the Company may be required to
file its applicable quarterly report on Form 10-Q by the rules and regulations
of the SEC) after the end of each of the first three Fiscal Quarters of each
Fiscal Year of the U.S. Borrower, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end of
and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous Fiscal Year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the U.S. Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a)
or (b) above, a certificate of a Financial Officer of the U.S. Borrower (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.10 and 6.11 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a)
above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after Xxxxx'x or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the U.S.
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The U.S. Borrower will
furnish to the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the U.S.
Borrower or any Affiliate
55
thereof that, if adversely determined, could reasonably be expected to result in
a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the U.S. Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the U.S. Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The U.S. Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
reasonably necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.04. Payment of Obligations. The U.S. Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the U.S. Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance; Accounts. The U.S.
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted (except for disposition of assets
permitted under this Agreement), and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations. The U.S. Borrower will,
and will cause each of its Subsidiaries to, to maintain its bank accounts and
other deposits with such financial institutions so as to preclude the
possibility that Bank Hapoalim B.M. could exercise any rights of set-off or
similar right with respect to such accounts and other deposits and apply the
proceeds thereof to the Israeli Acquisition Cash Secured Loan, other than with
respect to the permitted cash deposit securing the Israeli Acquisition Cash
Secured Loan equal to the principal balance of Israeli Acquisition Cash Secured
Loan.
SECTION 5.06. Books and Records; Inspection Rights. The U.S. Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The U.S. Borrower will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested. The U.S. Borrower will take all action required by the
Administrative Agent to permit the Administrative Agent and the Lenders to rely
on its annual audit. Except as specified in the definitions of Fiscal Quarters
and Fiscal Year, the U.S. Borrower will not change its Fiscal Quarters or Fiscal
Year.
56
SECTION 5.07. Compliance with Laws. The U.S. Borrower will, and will
cause each of its Subsidiaries to, 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.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans and Letters of Credit will be used only for the Agis Acquisition and
general corporate purposes of the U.S. Borrower and its Subsidiaries in the
ordinary course of business. No part of the proceeds of any Loan nor any Letter
of Credit will be used, whether directly or indirectly, for any purpose or in
any manner that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
SECTION 5.09. Additional Covenants. If at any time the U.S. Borrower
or any of its Subsidiaries shall enter into or be a party to any instrument or
agreement, including all such instruments or agreements in existence as of the
date hereof and all such instruments or agreements entered into after the date
hereof, relating to or amending any provisions applicable to any of its
Indebtedness which in the aggregate, together with any related Indebtedness,
exceeds $10,000,000, which includes covenants or defaults not substantially
provided for in this Agreement or more favorable to the lender or lenders
thereunder than those provided for in this Agreement, then the U.S. Borrower
shall promptly so advise the Administrative Agent and the Lenders. Thereupon, if
the Administrative Agent or the Required Lenders shall request, upon notice to
the U.S. Borrower, the Administrative Agent and the Lenders shall enter into an
amendment to this Agreement or an additional agreement (as the Administrative
Agent may request), providing for substantially the same covenants and defaults
as those provided for in such instrument or agreement to the extent required and
as may be selected by the Administrative Agent.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the U.S. Borrower covenants and agrees with the
Lenders that:
SECTION 6.01. Indebtedness. The U.S. Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof;
(c) Indebtedness resulting from loans permitted by Section 6.04(d);
(d) Indebtedness pursuant to Permitted Securitization Transactions provided
that the aggregate outstanding principal amount of the Indebtedness under all
Permitted Securitization Transactions shall not exceed $150,000,000;
57
(e) The Israeli Acquisition Cash Secured Loan, provided that (i) the
outstanding principal amount thereof does not exceed $400,000,000, (ii) it is
secured solely by cash deposited by Perrigo International in an amount not to
exceed the outstanding principal amount thereof, (iii) other than the direct
obligation of Israeli Acquisition Co. for the Israeli Acquisition Cash Secured
Loan and the Guarantee of Perrigo International thereof (the "Perrigo
International Cash Secured Loan Guarantee"), neither the U.S. Borrower nor any
of its Subsidiaries is liable, directly or indirectly, pursuant to a Guarantee
or otherwise, thereunder, (iv) the direct obligation of Israeli Acquisition Co.
for the Israeli Acquisition Cash Secured Loan and the Perrigo International Cash
Secured Loan Guarantee is non-recourse to Israeli Acquisition Co. and Perrigo
International (other than with respect to such cash deposit described in clause
(ii) above and to the limited extent described in the Perrigo International Cash
Secured Loan Documents delivered to the Lenders prior to the Effective Date) and
(v) it is on other terms and conditions reasonably satisfactory to the
Administrative Agent and the Syndication Agent; and
(f) Indebtedness not otherwise permitted by this Section 6.01 not in excess
of ten percent (10%) of Consolidated Total Assets in the aggregate at any time
outstanding.
Notwithstanding the foregoing, the aggregate amount of all Indebtedness of all
Material Non-Guarantor Subsidiaries, other than Indebtedness permitted under
Section 6.01(b) or (e) above, shall not exceed $15,000,000.
SECTION 6.02. Liens. The U.S. Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) Liens on any property or asset of the U.S. Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; provided that (i)
such Lien shall not apply to any other property or asset of the U.S. Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) Liens on any asset existing at the time of the purchase or other
acquisition thereof by the U.S. Borrower or any Subsidiary, provided that (i)
any such Lien was not created in contemplation of such purchase or other
acquisition and does not extend to any asset other than the asset so purchased
or otherwise acquired and proceeds thereof, (ii) such purchase or other
acquisition thereof and the Indebtedness secured by any such Lien is otherwise
permitted hereunder, (iii) the aggregate outstanding principal amount of the
Indebtedness secured thereby does not exceed $50,000,000 at any time and such
Liens are terminated within 60 days after the purchase or other acquisition of
the related asset by the U.S. Borrower or any Subsidiary;
(d) Precautionary UCC filings with respect to operating leases of the U.S.
Borrower or any Domestic Subsidiary;
(e) Liens on assets of Subsidiaries solely in favor of the U.S. Borrower or
a Guarantor as secured party and securing Indebtedness owing by a Subsidiary to
the U.S. Borrower or a Guarantor;
58
(f) Liens existing on cash deposited by Perrigo International in an amount
not to exceed the outstanding principal amount of the Israeli Acquisition Cash
Secured Loan existing on the date hereof under the Israeli Acquisition Cash
Secured Loan Documents to secure the Israeli Acquisition Cash Secured Loan; and
(g) Liens not otherwise permitted by this Section 6.02 securing
Indebtedness not in excess of $30,000,000 in aggregate principal amount
outstanding at any time, provided that the aggregate amount of all Indebtedness
secured by Liens granted by Material Non-Guarantor Subsidiaries, other than
Liens permitted under Section 6.02(b) or (f) above, shall not exceed $5,000,000.
SECTION 6.03. Fundamental Changes. The U.S. Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the U.S. Borrower in a transaction in which the U.S.
Borrower is the surviving corporation, (ii) any Person may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
the U.S. Borrower or to another Subsidiary and (iv) any Subsidiary may liquidate
or dissolve 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; provided that any such merger
involving (A) a Person that is not a Wholly-Owned Subsidiary immediately prior
to such merger shall not be permitted unless also permitted by Section 6.04 and
(B) a Foreign Subsidiary Borrower shall result in the Foreign Subsidiary
Borrower being the survivor or the survivor being a Foreign Subsidiary and
assuming the obligations of such Foreign Subsidiary Borrower pursuant to
documentation satisfactory to the Administrative Agent.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The U.S. Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly-Owned Subsidiary prior to such merger) any
Equity Interests, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
make any Acquisition, except:
(a) Permitted Investments;
(b) Investments, loans and advances existing on the date hereof and set
forth in Schedule 6.04 and extensions, renewals and replacements thereof that do
not increase the outstanding amount thereof;
(c) Investments in a Securitization Entity in connection with Permitted
Securitization Transactions and in an aggregate outstanding amount acceptable to
the Administrative Agent and required to consummate the Permitted Securitization
Transactions plus accounts or notes receivable permitted to be transferred to a
Securitization Entity in connection with Permitted Securitization Transactions;
(d) Investments, loans or advances made by the U.S. Borrower or any
Subsidiary to the U.S. Borrower or any Domestic Subsidiary that is a Guarantor;
(e) Acquisitions, provided that: (i) before and after giving pro forma
effect thereto (as of the end of the most recently ended Fiscal Quarter of the
U.S. Borrower), no Default exists or would be caused thereby and (ii) if such
Acquisition involves the acquisition of Equity Interests, the consummation of
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such Acquisition has been recommended by the Board of Directors and management
of the target of such Acquisition;
(f) The Perrigo International Cash Secured Loan Guarantee, provided that
the Perrigo International Cash Secured Loan Guarantee is non-recourse to Perrigo
International, other than with respect to the cash deposit described in Section
6.01(e)(ii) and to the limited extent described in the Perrigo International
Cash Secured Loan Guarantee delivered to the Lenders prior to the Effective
Date; and
(g) Guarantees, investments, loans or advances not otherwise permitted by
this Section 6.04 not in excess of ten percent (10%) of Consolidated Total
Assets in the aggregate; provided that the aggregate amount of such Guarantees
of, and investments, loans or advances to, Subsidiaries that are not Guarantors
shall not exceed $15,000,000 in aggregate outstanding amount.
SECTION 6.05. Swap Agreements. The U.S. Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the U.S.
Borrower or any Subsidiary has actual exposure (other than those in respect of
Equity Interests of the U.S. Borrower or any of its Subsidiaries), and (b) 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.
SECTION 6.06. Restricted Payments. The U.S. Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the U.S.
Borrower may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, and
(c) the U.S. Borrower may make Restricted Payments with respect to its Equity
Interests so long as no Default exists or would be caused thereby.
SECTION 6.07. Transactions with Affiliates. The U.S. Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the U.S. Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the U.S. Borrower and its
Wholly-Owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.06.
SECTION 6.08. Restrictive Agreements. The U.S. Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the U.S. Borrower or
any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its Equity Interests or to
make or repay loans or advances to the U.S. Borrower or any other Subsidiary or
to Guarantee Indebtedness of the U.S. Borrower or any other Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.08 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions
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and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases
restricting the assignment thereof.
SECTION 6.09. Disposition of Assets; Etc. The U.S. Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease, license, transfer,
assign or otherwise dispose of any of its business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than inventory sold in the ordinary course of
business upon customary credit terms, sales of scrap or obsolete material or
equipment, the lapse of intellectual property of the Borrowers or any of their
Subsidiaries that is no longer useful or material to their business and sales of
fixed assets the proceeds of which are used to purchase other property of a
similar nature of at least equivalent value within 180 days of such sale,
provided, however, that this Section 6.09 shall not (a) prohibit any sale or
other transfer of an interest in accounts or notes receivable to a
Securitization Entity pursuant to a Permitted Securitization Transaction allowed
by the terms of this Agreement, (b) prohibit any sale or other transfer of any
asset of the U.S. Borrower or any Subsidiary to the U.S. Borrower or any
Domestic Subsidiary that is a Guarantor and (c) prohibit any such sale, lease,
license, transfer, assignment or other disposition if in any Fiscal Year of the
U.S. Borrower, the aggregate book value (disregarding any write-downs of such
book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of shall be less than
10% of the aggregate book value of the Consolidated Total Assets as of the end
of the immediately preceding Fiscal Year and the business, assets, rights,
revenues and property disposed of shall be responsible for less than 10% of the
consolidated net sales and net income of the U.S. Borrower and its Subsidiaries
for the immediately preceding Fiscal Year, and if immediately after any such
transaction, no Default shall exist or shall have occurred and be continuing.
SECTION 6.10. Leverage Ratio. The U.S. Borrower will not permit the
Leverage Ratio to exceed 3.0 to 1.0 as of the end of any Fiscal Quarter.
SECTION 6.11. Interest Coverage Ratio. The U.S. Borrower will not
permit the Interest Coverage Ratio to be less than 3.0 to 1.0 as of the end of
any Fiscal Quarter.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC 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 otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the U.S. Borrower or any Subsidiary in or in connection with this
Agreement, any other Loan Document or any amendment or modification hereof
or waiver hereunder, or in any report, certificate,
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financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or
waiver hereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01, 5.02, 5.03 (with respect
to any Borrower's existence), 5.06 (with respect to inspection rights) or
5.08 or in Article VI;
(e) any Borrower or any other Loan Party shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of this Article) or
any other Loan Document, and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent to the
U.S. Borrower (which notice will be given at the request of any Lender);
(f) the U.S. Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable (after giving effect to any applicable grace periods);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) 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; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the U.S. Borrower or any Subsidiary or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the U.S. Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the U.S. Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the U.S. Borrower or any
Subsidiary or for a substantial part of its assets, (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) take any action for the purpose of effecting any of the foregoing;
(j) the U.S. Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
Dollar Equivalent amount in excess of $10,000,000 shall be rendered against
the U.S. Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive
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days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the U.S. Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) Any Loan Document shall fail to remain in full force or effect or
provide the Lien or Guarantee intended to be provided, or any action shall
be taken to discontinue or to assert the invalidity or unenforceability of
any Loan Document, or any Borrower or any other Loan Party shall deny that
it has any further liability under any Loan Document to which it is a
party, or shall give notice to such effect;
(n) (i) The Agis Acquisition shall fail to close on the date one
Business Day after the Effective Date or, after it is closed, shall be
unwound, reversed or otherwise rescinded in whole or in any material part
for any reason, (ii) the U.S. Borrower or any of its Subsidiaries shall
agree to any material amendment to, or waiver of any material rights under,
or otherwise change any material terms of, any Agis Acquisition Document or
any Israeli Acquisition Cash Secured Loan Document, in a manner adverse to
the U.S. Borrower or any of its Subsidiaries or to Lenders without the
prior written consent of Administrative Agent, or (iii) if the Israeli
Acquisition Cash Secured Loan is paid down from any source, the cash
deposited securing the Israeli Acquisition Cash Secured Loan shall fail to
be reduced by the amount of such payment; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the U.S. Borrower, take
either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and in case of any event with respect to any Borrower described
in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
ARTICLE VIII
The Agents
SECTION 8.01. Appointment. (a) In order to expedite the transactions
contemplated by this Agreement, (i) JPMorgan is hereby appointed to act as
Administrative Agent and an Issuing Bank, (ii) Bank Leumi is hereby appointed to
act as Syndication Agent and (iii) Bank of America, N.A., Standard Federal Bank
N.A. and National City Bank of the Midwest, are hereby appointed to act as
Documentation
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Agents. 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 LC 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. Upon receipt by the
Administrative Agent of any of the reports, notices or certificates required to
be delivered by the U.S. Borrower under Section 5.01 or 5.02, the Administrative
Agent shall promptly deliver the such reports, notices or certificates to the
Lenders.
(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 willful 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 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, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and
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no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against any
Agent. Each Lender recognizes and agrees that any Lender designated as a
Documentation Agent, co-agent or other similar title shall have no duties or
responsibilities under this Agreement or any other Loan Document, or any
fiduciary relationship with any Lender, and shall have no functions,
responsibilities, duties, obligations or liabilities for acting as such
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 (including its parent company)
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,
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 and their Related Parties, 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 LC Disbursements, as applicable)) of any reasonable expenses
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 U.S. Borrower and (b) to indemnify and hold
harmless each Agent and any of their Related Parties, 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 U.S. Borrower, provided that no Lender shall be liable to an
Agent or any of their Related Parties 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 such Related Party, as the case may be.
65
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. The provisions of this Article VIII shall apply to any such
Affiliate mutatis mutandis.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to a Borrower, to it at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
00000, Attention of Xxxxx X. Xxxxxxxx, treasurer (Telecopy No. (269)
673-1234; e-mail: xxxxxxxxx@xxxxxxx.xxx) or, in the case of any Borrower
under an Ancillary Facility, as otherwise specified in the related
Ancillary Facility Documents;
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, 000 X. Xxxxxxxx Xx., Xxxxxxx, Xxxxxxxx,
00000, Attention of Xxxxxxx X. Xxxxxx (Telecopy No. (000) 000-0000; e-mail:
xxxxx_xxxxxxxxx_xxxxxx@xxxxxxx.xxx) and, in the case of any Loan
denominated in a Foreign Currency, to the London Administrative Office;
(iii) if to the Issuing Bank other than the Administrative Agent, to
it at the address or telecopy number set forth separately in writing to the
Administrative Agent; and
(iv) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
(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
Administrative Agent and the applicable Lender. The Administrative Agent or any
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications
66
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.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by any
Agent, Issuing Bank or any Lender in exercising any right or power hereunder
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,
the Issuing Banks and the Lenders hereunder 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 consent to any departure by any Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Agent, Lender or Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders or by the Borrowers and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender directly affected thereby, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender directly affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly affected
thereby, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender directly affected thereby, (v) release any material Guarantor from its
obligations under any Guaranty or release all or substantially all of the
Collateral, except to the extent permitted hereunder (whether pursuant to any
sale or other transfer of the relevant Guarantor or Collateral permitted
hereunder or as otherwise permitted hereunder) or with the consent of all the
Lenders, or (vi) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender directly affected thereby; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any other Agent, any Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such
other Agent, such Issuing Bank or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The U.S.
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, Syndication Agent and their respective Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Syndication Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable out-of-pocket expenses incurred by the Agents, the Issuing
Banks or any Lender, including the reasonable fees, charges and disbursements of
any counsel for any Agent, Issuing Bank or Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans
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made or Letters of Credit issued hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The U.S. Borrower shall indemnify each Agent, Issuing Bank and Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, 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,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the U.S. Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the U.S. Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto, or in any other way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it under this Agreement or any other Loan Document;
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 court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the U.S. Borrower fails to pay any amount required
to be paid by it to any Agent, Issuing Bank or Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to such Agent,
Issuing Bank or Swingline Lender, as the case may be, such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against an Agent,
Issuing Bank or Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
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 the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrowers may not assign or otherwise transfer any of their rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Borrower without such consent shall be
null and void), provided that any merger of any Foreign Subsidiary Borrower with
other Subsidiaries shall not be deemed an assignment provided that the resulting
entity assumes all Obligations of such Foreign Subsidiary Borrower in a manner
acceptable to the
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Administrative Agent, 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 or Swingline Lender that makes any Swingline Loan),
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
Administrative Agent, the 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 an assignment to a Lender, an Affiliate
of a Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund; and
(C) the Issuing Bank, provided that no consent of the Issuing
Bank shall be required for an assignment of all or any portion of a
Term Loan.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class, the amount
of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 or, in the
case of a Term Loan, $1,000,000, 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
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, provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of all
the assigning Lender's rights and obligations in respect of one Class
of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund" has
the following meaning:
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"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(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 Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 9.03). 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 Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC 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 Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by
the Borrowers, the 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 Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register; provided that if either the assigning Lender or the assignee
shall have failed to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and
Assumption and record the information therein in the Register unless and
until such payment shall have been made in full, together with all accrued
interest thereon. 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 any Borrower, the
Administrative Agent, the Issuing Bank or the 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
Administrative Agent, the 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
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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 the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if 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 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 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 2.16 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 2.16(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 without limitation 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. Survival. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof 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 the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
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SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates 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 obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured; provided that the rights under this
Section shall not apply to the cash deposit securing the Israeli Acquisition
Cash Secured Loan. The rights of each Lender under this Section are in addition
to other rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of Michigan.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Court of the
State of Michigan and any court of the United States District Court sitting in
Michigan, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Michigan State court 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 the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Borrower or its properties in the courts of any jurisdiction.
(c) 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 in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR
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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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. 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 shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its
obligations, (g) with the consent of the U.S. Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than a
Borrower. For the purposes of this Section, "Information" means all information
received from any Borrower relating to the U.S. Borrower or any of its
Subsidiaries or their business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by a Borrower. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies each Borrower that pursuant
to the requirements of the Act, it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of
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each Borrower and other information that will allow such Lender to identify each
Borrower in accordance with the Act.
SECTION 9.15. 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 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 9.15 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
ARTICLE X
Collection Allocation Mechanism
SECTION 10.01. Implementation of CAM. (a) On the CAM Exchange Date,
(i) the Commitments and the Ancillary Commitments shall automatically and
without further act be terminated as provided in Article VII, (ii) the principal
amount of each Loan and LC Disbursement denominated in a Foreign Currency shall,
automatically and with no further action required, be converted into the Dollar
Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of such amount and on and after such date all amounts accruing
and owed to any Lender in respect of such Obligations shall accrue and be
payable in Dollars at the rates otherwise applicable hereunder and (iii) each
Lender shall automatically and without further act (and without regard to the
provisions of Section 9.04) immediately be deemed to have acquired
participations in the Swingline Loans, Revolving Loans, Ancillary Loans and
Letters of Credit (including each Reserve Account established pursuant to
Section 10.02 below) in an amount equal to such Lender's CAM Percentage. Each
Lender shall make payments to the Applicable Agent for such participations, and
the Applicable Agent shall distribute such payments to the appropriate Lender,
in such manner and pursuant to such procedures determined by the Administrative
Agent. Each Lender and each Borrower 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 Advance. Each Borrower 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 Ancillary Loans so executed and delivered; provided,
however, that the failure of any Borrower 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.
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(b) As a result of the CAM Exchange, upon and after the CAM Exchange Date,
each payment received by the Applicable Agent pursuant to any Loan Document in
respect of the Revolving Credit Exposures and the Ancillary Facility Exposures
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 any Revolving Credit
Exposure or Ancillary Facility Exposure shall be paid over to the Applicable
Agent for distribution to the Lenders in accordance herewith.
SECTION 10.02. Letters of Credit. (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 LC Disbursement shall not have been reimbursed either by the
U.S. Borrower or with the proceeds of a Borrowing, each Lender shall promptly
pay over to the Administrative Agent, in immediately available funds, an amount
equal to such Lender's CAM Percentage of such undrawn 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 the amounts received from the Lenders as provided
above. 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 the amounts on deposit in respect of each
Letter of Credit attributable to each Lender's CAM Percentage. The amounts held
in each Lender's Reserve Account shall be held as a reserve against the LC
Exposures, shall be the property of such Lender, shall not constitute Loans to
or give rise to any claim of or against any Borrower 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 Letters of
Credit shall arise only at such times as drawings are made thereunder, as
provided in Section 2.05.
(b) In the event that after the CAM Exchange Date any drawing shall be made
in respect of a Letter of Credit, the Administrative Agent shall, at the request
of the applicable Issuing Bank withdraw from the Reserve Account of each Lender
any amounts, up to the amount of such Lender's CAM Percentage of such drawing
deposited in respect of such Letter of Credit and remaining on deposit and
deliver such amounts to such Issuing Bank in satisfaction of the reimbursement
obligations of the Lenders under Section 2.05(d) (but not of the U.S. Borrower
under Section 2.05(e)). In the event that any Lender shall default on its
obligation to pay over any amount to the Administrative Agent as provided in
this Section 10.02, the applicable Issuing Bank shall have a claim against such
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 10.01.
Each other Lender shall have a claim against such defaulting 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, 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 and distribute such amount to such Lender.
75
(d) With the prior written approval of the Administrative Agent (not to be
unreasonably withheld), any Lender may withdraw the amount held in its Reserve
Account in respect of the undrawn amount of any Letter of Credit. Any Lender
making such a withdrawal shall be unconditionally obligated, in the event there
shall subsequently be a drawing under such Letter of Credit, to pay over to the
Administrative Agent, for the account of the Issuing Bank, on demand, its CAM
Percentage of such drawing.
(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.
76
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 above written.
PERRIGO COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
77
JPMORGAN CHASE BANK, N.A.,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Director
78
BANK LEUMI USA,
as a Lender and as Syndication Agent
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
79
BANK OF AMERICA, N.A.,
as a Lender and as Documentation Agent
By /s/ B. Xxxxxxx Xxxxxx, Xx.
-------------------------------------
Name: B. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
80
STANDARD FEDERAL BANK N.A.,
as a Lender and as Documentation Agent
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
81
NATIONAL CITY BANK OF THE MIDWEST,
as a Lender and as Documentation Agent
By /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
82
FIFTH THIRD BANK
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
83
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Director
84
COMERICA BANK
By /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
Title: 1st Vice President
85
THE NORTHERN TRUST COMPANY
By /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: 2nd Vice President
SCHEDULE 2.01 - COMMITMENTS
REVOLVING TERM LOAN AGGREGATE
LENDER TITLE COMMITMENT COMMITMENT COMMITMENT
------ ----- ------------ ------------ ------------
JPMorgan Chase Joint Lead Arranger $ 39,000,000 $ 16,000,000 $ 55,000,000
Bank, N.A. and Administrative
Agent
Bank Leumi USA Joint Lead Arranger $ 39,000,000 $ 16,000,000 $ 55,000,000
and Syndication Agent
Bank of America, N.A. Documentation Agent $ 28,000,000 $ 11,000,000 $ 39,000,000
Standard Federal Documentation Agent $ 28,000,000 $ 11,000,000 $ 39,000,000
Bank, N.A.
National City Bank of the Documentation Agent $ 28,000,000 $ 11,000,000 $ 39,000,000
Midwest
Fifth Third Bank Participant $ 28,000,000 $ 11,000,000 $ 39,000,000
Xxxxxx Trust and Savings Bank Participant $ 20,000,000 $ 8,000,000 $ 28,000,000
Comerica Bank Participant $ 20,000,000 $ 8,000,000 $ 28,000,000
The Northern Trust Participant $ 20,000,000 $ 8,000,000 $ 28,000,000
Company
------------ ------------ ------------
TOTAL $250,000,000 $100,000,000 $350,000,000
SCHEDULE 3.06
DISCLOSED MATTERS (LITIGATION AND ENVIRONMENTAL MATTERS)
1. See actions, suits, or proceedings set forth in all reports, schedules,
forms, statements and other documents filed pursuant to Israeli securities laws
by Agis Industries (1983) Ltd. since January 2001.
To the best of its knowledge, the U.S. Borrower does not believe that such
matters will have a Material Adverse Effect.
SCHEDULE 3.07
DISCLOSED MATTERS (COMPLIANCE WITH LAWS AND AGREEMENTS)
1. Perrigo entered into a consent order with the United States Federal
Trade Commission in August 2004 that prohibits Perrigo from entering
into certain transactions where it controls an ANDA for a given drug,
the other party to the transaction controls an ANDA for the same drug,
and one of the parties has received first to file status by the United
States Food and Drug Administration with respect to any ANDA drug
product that is subject to an agreement between the parties. In such
situations, with certain exclusions, Perrigo is prohibited, inter alia,
from entering into or attempting to enter into any agreement in which
one of the parties to the agreement agrees not to compete for any time
period greater than the 180 day generic exclusivity period. Perrigo is
under an obligation to provide an annual report to the United States
Federal Trade Commission in connection with this consent order.
2. In 2001, Perrigo entered into a consent order with the United States
Federal Trade Commission that it will not misrepresent, in any manner,
directly or by implication, the extent to which certain analgesic
products are made in the United States. Perrigo may make such
representations as long as all or virtually all of the ingredients or
component parts of such products are made in the United States and all
or virtually all, of the labor in manufacturing such product is
performed in the United States. Perrigo can make representations that
any such products containing imported active ingredient is "Processed
in the United States with Foreign Ingredients" when such representation
is true and is used to describe a product that has been significantly
processed in the United States. The Order was effective for
non-prescription drug products containing an imported analgesic on
December 31, 2001, and all other non-prescription drug products
containing an analgesic on March 31, 2002. Pursuant to the Order, for a
period of five years Perrigo must make available to the Federal Trade
Commission for inspection and copying upon request: (a) all labeling,
packaging, advertisements and promotional materials containing the
representation; (b) all materials that were relied upon in
disseminating the representation; and (c) all tests, reports, studies,
surveys, demonstrations, or other evidence in their possession or
control that contradict, qualify, or call into question the
representation, or the basis relied upon for the representation,
including complaints and other communications with consumers or with
governmental or consumer protection organizations. The length of the
Order is twenty (20) years.
3. Agis's plants in Yeruham do not have an effective business license. The
operation of plants without current business licenses is not unusual in
Israel and the lack of same is not expected to cause any type of
Material Adverse Event.
1
4. Agis has had the following product recalls:
PRODUCT REASON OF RECALL COMPLETION
------------------ -------------------------------------- ---------------------------
1. Lipogis 0.2mg Mix-up of packages from 0.4mg dosage May 2000
tablets form.
2. Lipogis Side effects. November 2001
(Cerivastatin) The product was withdrawn from
tablets (0.1, 0.2, World-wide markets.
0.4mg) (Initiated by Bayer)
3. Dalagis Lotion Decreasing shelf life due to stability November 2001
tests.
4. Cidalin Suspension Decreasing the active materials' December 2003
concentration (was found during
on-going stability tests)
5. Rhinoclir Increasing the active materials' December 2003
concentration due to loose caps.
6. Acetaminophen Mislabeling November 1999
Suppositories
7. Triple Antibiotic Mislabeling Initiated October 29, 2004
Ointment
5. EU (Denmark) Compliance Statement re. Inspection of Agis,
November 2003.
6. Agis received the following FOA Form 483's:
o FDA 483 Form - re. Inspection of Clay-Park, dated August 10,
2000
o FDA 483 Form - re. Inspection of Clay-Park, dated August 30,
2000
o FDA 483 Form - re. Inspection of Clay-Park, dated September
21, 2000
o FDA 483 Form - re. Inspection of Clay-Park, dated October 26,
2001
o FDA 483 Form - re. Inspection of Clay-Park, dated November 28,
2001
o FDA 483 Form - re. Inspection of Clay-Park, dated July 10,
2003
o FDA 483 Form - re. Inspection of Chemagis Ltd. in September
2003
o FDA 483 Form - re. Inspection of Agis, dated September 4, 2003
The above 483 citations have either been fully resolved or are not expected to
create a Material Adverse Event.
2
SCHEDULE 6.01
EXISTING INDEBTEDNESS
1. Loan Agreement, dated December 3, 2003, between Agis and Bank Leumi
Trust Company (Debentures). Amount is NIS 180 Million, due between
2007-2009. To be guaranteed by Xxxxxxx Company.
2. Loan Agreement of Clay-Park Labs, Inc. with Bank Leumi USA; $15 Million
U.S. revolver facility expiring March 2007 ($10 Million US is
outstanding).
3. Loan Agreement of Clay Park Labs, Inc. with Bank Hapoalim B.M.;
$20,000,000 U.S. revolver facility expiring June 2005 ($14.5 Million US
is outstanding).
4. Loan Agreement of Chemagis GmbH (Germany) with Citibank Tel Aviv; 7
Million Euro bank loan due November 24, 2005.
5. Guarantee to Citibank N.A. Tel-Aviv dated November 21, 2004, by Agis
for the benefit of Chemagis (Germany) GmbH.
6. Promissory Note (Grid), dated March 24, 2004, between Clay-Park Labs
Inc. and Bank Leumi USA.
7. Xxxxxxx'x Quimica y Farmacia subsidiary has a credit line of 35 million
(Mexican Pesos) with Comerica Bank dated December 1, 2004 with an
expiration date of January 2, 2006 having a current balance of 20
million (Mexican Pesos) at an interest rate of 10.65% with an
expiration date of April 19, 2005; and a credit line of 28 million
(Mexican Pesos) with XX Xxxxxx established in 1997, guaranteed by the
Xxxxxxx Company with a current balance of 28 million (Mexican Pesos) at
an interest rate of 10.8% with an expiration date of April 30, 2005.
8. Xxxxxxx'x Wrafton Laboratories subsidiary has a loan with HSBC, 00 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx XX00 0XX United Kingdom. The amount is for
Pound Sterling1,500,000, at an interest rate of 0.7% above the base
rate of 4.75% (5.45%). The loan is dated 19 January 2004, is payable on
demand and guaranteed by the Xxxxxxx Company.
SCHEDULE 6.02
EXISTING LIENS
1. Agis: (i) general floating lien (State of Israel), November 1997, (ii)
lien on all fixed assets (State of Israel), August 1983.
2. Chemagis Ltd.: general floating lien (State of Israel), April 1989.
3. Careline (Pharmagis) Ltd.: general floating liens (State of Israel),
January 1986 and January 1990.
4. Agis Distribution and Marketing (1989) Ltd.: general floating lien on
all proceeds from sales of Agis's products (Agis), June 1994
The liens in favor of the State of Israel were created for Agis participation in
the Investment Center of the State of Israel.
SCHEDULE 6.02
EXISTING LIENS (CONTINUED)
UCC/ LITIGATION SEARCH SCHEDULE
DEBTOR: XXXXXXX COMPANY
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 IBM CREDIT D790098 N/A LEASE ON COMPUTER EQUIPMENT
UCC DIVISION CORPORATION 6/26/02
IBM CREDIT D829212 N/A LEASE ON COMPUTER EQUIPMENT
CORPORATION 10/17/01
BASF CORPORATION 33877C N/A BASF OWNED VITAMIN INGREDIENT
2/12/02 PRODUCT ON CONSIGNMENT
XXXXXXXX/ 34376C N/A LEASE ON COMPUTER AND
MACARTHUR 02/27/02 TELECOMMUNICATIONS EQUIPMENT
ASSOCIATES, INC.
USBANCORP D951658 N/A SPECIFIC EQUIPMENT
9/03/02
NOVEON, INC. 2004136712-2 N/A CONSIGNMENT INVENTORY (NOVEON)
7/7/04
TENNESSEE SOS/ THRU 2/28/05 CUMBERLAND SWAN 993044744 N/A ALL ACCOUNT, INVENTORY AND
UCC DIVISION HOLDING, INC. 08/31/99 DEBTOR'S PERSONAL CARE
ACQUIRED, CREATED, HELD OR
ASSIGNEE: OWNED BY CUMBERLAN SWAN
FOOTHILL CAPITAL HOLDINGS, INC.
CORPORATION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: X. XXXXXXX COMPANY
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 3/2/05 ALPHA FINANCIAL C309569 EQUIPMENT LEASE
UCC DIVISION GROUP, INC. 01/17/90
ASSIGNEE: C500861 ASSIGNMENT
DELTA CAPITAL IV, 07/22/91
INC.
C500862 ASSIGNMENT
ASSIGNEE: 07/22/91
COMERICA BANK
C912282 CONTINUATION
12/02/94
D551788 CONTINUATION
08/09/99
2004157300-4 CONTINUATION
08/06/04
GTE LEASING D040395 EQUIPMENT LEASE
CORPORATION 12/06/95
D668246 CONTINUATION
06/23/00
GTE LEASING D048590 EQUIPMENT LEASE
CORPORATION 01/03/96
D676772 CONTINUATION
07/21/00
GTE LEASING D100235 EQUIPMENT LEASE
CORPORATION 05/24/96
D770512 CONTINUATION
05/03/01
GTE LEASING D289198 EQUIPMENT LEASE
CORPORATION 10/07/97
D896740 CONTINUATION
04/12/02
[MICHIGAN DEPT. 2004025270-0 [FILING OFFICER STATEMENT RE:
OF STATE] 12/05/02 ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
GTE LEASING D302537 EQUIPMENT LEASE
CORPORATION 11/07/97
D931087 CONTINUATION
07/03/02
[MICHIGAN DEPT. 2004025270-0 [FILING OFFICER STATEMENT RE:
OF STATE] 12/05/02 ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
GTE LEASING D317060 EQUIPMENT LEASE
CORPORATION 12/18/97
D933159 CONTINUATION
07/10/02
D933897 AMEND DEBTOR NAME TO:
07/11/02 CUMBERLAND SWAN HOLDINGS, INC.
GTE LEASING D342278 EQUIPMENT LEASE
CORPORATION 02/23/98
2002030480-8 CONTINUATION
12/03/02
GTE LEASING D381074 EQUIPMENT LEASE
CORPORATION 06/01/98
2003002561-8 CONTINUATION
01/03/03
GTE LEASING D406256 EQUIPMENT LEASE
CORPORATION 08/03/98
2003027099-6 CONTINUATION
02/10/03
GTE LEASING D630880 EQUIPMENT LEASE
CORPORATION 03/15/00
GTE LEASING D630881 EQUIPMENT LEASE
CORPORATION 03/15/00
DATA SALES COMPANY, D634415 EQUIPMENT LEASE
INC. 03/24/00
GTE LEASING D658199 EQUIPMENT LEASE
CORPORATION 05/25/00
GTE LEASING D664279 EQUIPMENT LEASE
CORPORATION 06/13/00
2004025270-0 [FILING OFFICER STATEMENT RE:
[MICHIGAN DEPT. 12/05/02 ALTERATIONS DURING MIGRATION
OF STATE] FROM LEGACY SYSTEM]
DATA SALES CO., INC. D665971 EQUIPMENT LEASE
06/19/00
GTE LEASING D680907 EQUIPMENT LEASE
CORPORATION 08/03/00
GTE LEASING D688511 EQUIPMENT LEASE
CORPORATION 08/28/00
VERIZON CREDIT INC. D704304 ADDITIONS TO TIGER XXXX TRADE
10/16/00 SHOW DISPLAY BOOTH
VERIZON CREDIT INC. D704315 EQUIPMENT LEASE
10/16/00
[MICHIGAN DEPT. 2004025270-0 [FILING OFFICER STATEMENT RE:
OF STATE] 12/05/02 ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
GTE LEASING D704316 EQUIPMENT LEASE
CORPORATION 10/16/00
2004025270-0
[MICHIGAN DEPT. 12/05/02 [FILING OFFICER STATEMENT RE:
OF STATE] ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
GTE LEASING D709112 EQUIPMENT LEASE
CORPORATION 10/30/00
2004025270-0
[MICHIGAN DEPT. 12/05/02 [FILING OFFICER STATEMENT RE:
OF STATE] ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
DATA SALES CO., INC. D712096 EQUIPMENT LEASE
11/07/00
DATA SALES CO., INC. D719668 EQUIPMENT LEASE
12/04/00
DATA SALES CO., INC. D728200 EQUIPMENT LEASE
01/02/01
[MICHIGAN DEPT. 2004025270-0
OF STATE] 12/05/02 [FILING OFFICER STATEMENT RE:
ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
DATA SALES CO., INC. D756337 EQUIPMENT LEASE
03/26/01
VERIZON CREDIT INC. D781259 EQUIPMENT LEASE
06/01/01
VERIZON CREDIT INC. D781462 EQUIPMENT LEASE
06/04/01
VERIZON CREDIT INC. D782985 EQUIPMENT LEASE
F/K/A GTE LEASING 06/06/01
CORPORATION
DATA SALES CO., INC. D806857 EQUIPMENT LEASE
08/14/01
CROWN CREDIT COMPANY D815057 CROWN LIFT TRUCKS
09/07/01
CROWN CREDIT COMPANY D815058 CROWN LIFT TRUCKS
09/07/01
CROWN CREDIT COMPANY D815059 CROWN LIFT TRUCKS
09/07/01
CROWN CREDIT COMPANY D815060 CROWN LIFT TRUCKS
09/07/01
CROWN CREDIT COMPANY D834565 CROWN LIFT TRUCKS
11/01/01
CROWN CREDIT COMPANY D834566 CROWN LIFT TRUCKS
11/01/01
DATA SALES CO., INC. D843253 EQUIPMENT LEASE
11/26/01
VERIZON CREDIT INC. D847110 IN LIEU STATEMENT RELATING TO
12/05/01 EQUIPMENT LEASE
[MICHIGAN DEPT. 2004025270-0 [FILING OFFICER STATEMENT RE:
OF STATE] 12/05/02 ALTERATIONS DURING MIGRATION
FROM LEGACY SYSTEM]
CROWN CREDIT COMPANY D860622 CROWN LIFT TRUCKS
01/09/02
DATA SALES CO., INC. D882708 EQUIPMENT LEASE
03/11/02
ASSIGNEE: MERCHANTS D919830 ASSIGNMENT
CAPITAL RESOURCES 06/06/02
CROWN CREDIT COMPANY D889404 CROWN LIFT TRUCKS
03/27/02
DATA SALES CO., INC. D953167 EQUIPMENT LEASE
09/09/02
ASSIGNEE: 2002041674-2 ASSIGNMENT
FIRSTMERIT BANK, 12/20/02
N.A.
2003017526-1 PARTIAL RELEASE
01/27/03
2003099789-5 [FILING OFFICER CORRECTION]
05/23/03
DATA SALES CO., INC. D965129 EQUIPMENT LEASE
10/14/02
ASSIGNEE: 2002041671-6 ASSIGNMENT
FIRSTMERIT BANK, 12/20/02
N.A.
2003017527-3 PARTIAL RELEASE
01/27/03
DATA SALES CO., INC. 2002007552-2 EQUIPMENT LEASE
10/28/02
DATA SALES CO., INC. 2002017453-4 EQUIPMENT LEASE
11/08/02
DATA SALES CO., INC. 2002028124-0 EQUIPMENT LEASE
11/27/02
CROWN CREDIT COMPANY 2003022483-6 CROWN LIFT TRUCKS
02/03/03
CROWN CREDIT COMPANY 2003055686-5 CROWN LIFT TRUCKS
03/24/03
DATA SALES CO., INC. 2003055687-7 EQUIPMENT LEASE
03/24/03
CROWN CREDIT COMPANY 2003062388-2 CROWN LIFT TRUCKS
04/02/03
CROWN CREDIT COMPANY 2003077751-0 CROWN LIFT TRUCKS
04/23/03
DATA SALES CO., INC. 2003080535-7 EQUIPMENT LEASE
04/28/03
CROWN CREDIT COMPANY 2003105858-1 CROWN LIFT TRUCKS
06/03/03
CROWN CREDIT COMPANY 2003150167-1 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 0000000000-3 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150169-5 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150170-8 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150171-0 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150172-2 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150175-8 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003150191-2 CROWN LIFT TRUCKS
08/05/03
CROWN CREDIT COMPANY 2003160608-9 CROWN LIFT TRUCKS
08/21/03
CROWN CREDIT COMPANY 2003160619-2 CROWN LIFT TRUCKS
08/21/03
DATA SALES CO., INC. 0000000000-8 CROWN LIFT TRUCKS
10/06/03
NMHG FINANCIAL 2003199489-0 EQUIPMENT LEASE
SERVICES, INC. 10/20/03
VERIZON CREDIT INC. 2003210386-8 IN LIEU STATEMENT RELATING TO
11/03/03 EQUIPMENT LEASE
DATA SALES CO., INC. 2003223100-9 EQUIPMENT LEASE
11/20/03
CROWN CREDIT COMPANY 2004020174-1 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020179-1 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020206-0 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020207-2 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020208-4 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020209-6 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004020210-9 CROWN LIFT TRUCKS
01/29/04
CROWN CREDIT COMPANY 2004064128-6 CROWN LIFT TRUCKS
03/29/04
CROWN CREDIT COMPANY 0000000000-7 CROWN LIFT TRUCKS
03/29/04
CROWN CREDIT COMPANY 2004069697-6 CROWN LIFT TRUCKS
04/06/04
CROWN CREDIT COMPANY 2004080001-8 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080008-2 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080009-4 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080010-7 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080012-1 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 0000000000-0 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080027-2 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080028-4 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080029-6 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080030-9 CROWN LIFT TRUCKS
04/19/04
CROWN CREDIT COMPANY 2004080031-1 CROWN LIFT TRUCKS
04/19/04
DATA SALES CO., INC. 0000000000-1 EQUIPMENT LEASE
05/20/04
CROWN CREDIT COMPANY 0000000000-8 EQUIPMENT LEASE
06/23/04
DE XXXX XXXXXX 2004132126-5 EQUIPMENT LEASE
FINANCIAL SERVICES 06/29/04
XXXXX LEASEING 2004133885-4 EQUIPMENT LEASE
COMPANY 07/01/04
DATA SALES CO., INC. 2004180343-3 EQUIPMENT LEASE
09/13/04
DATA SALES CO., INC. 2004199626-4 EQUIPMENT LEASE
10/11/04
XXXXX LEASING 2004209966-7 EQUIPMENT LEASE
COMPANY 10/27/04
DATA SALES CO., INC. 2004249616-4 EQUIPMENT LEASE
12/27/04
XXXXX LEASING 2005001964-5 EQUIPMENT LEASE
COMPANY 01/04/05
XXXXX LEASING 2005001973-4 EQUIPMENT LEASE
COMPANY 01/04/05
DATA SALES CO., INC. 2005028518-1 EQUIPMENT LEASE
02/11/05
DATA SALES CO., INC. 2005033829-7 EQUIPMENT LEASE
02/22/05
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: XXXXXXX COMPANY OF SOUTH CARLONIA
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 XXXXXXX LEASING D917180 N/A SPECIFIC EQUIPMENT
UCC DIVISION CORPORATION 5/31/02
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: XXXXXXX PHARMACEUTICALS COMPANY
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 [NO RECORD] N/A N/A N/A
UCC DIVISION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: PERRIGO INTERNATIONAL, INC.
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 [NO RECORD] N/A N/A N/A
UCC DIVISION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: PERRIGO INTERNATIONAL HOLDINGS, INC.
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 NO LIENS OF RECORD N/A N/A N/A
UCC DIVISION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: PERRIGO SALES CORPORATION
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 NO LIENS OF RECORD N/A N/A N/A
UCC DIVISION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: PERRIGO RESEARCH & DEVELOPMENT COMPANY
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 NO LIENS OF RECORD N/A N/A N/A
UCC DIVISION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: XXXXXXX COMPANY OF TENNESSEE
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
MICHIGAN SOS/ THRU 2/22/05 NO LIENS OF RECORD N/A N/A N/A
UCC DIVISION
TENNESSEE SOS/ THRU 2/28/05 CUMBERLAND SWAN 993044743 N/A ALL ACCOUNT, INVENTORY AND
UCC DIVISION HOLDING, INC. 08/31/99 DEBTOR'S PERSONAL CARE
ACQUIRED, CREATED, HELD OR
ASSIGNEE: OWNED BY CUMBERLAN SWAN
FOOTHILL CAPITAL HOLDINGS, INC.
CORPORATION
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
DEBTOR: CLAY-PARK LABS INC.
JURISDICTION INITIAL AMENDMENTS
AND INDEX PERIODS FILE NO. (WITH FILE NO.
SEARCHED COVERED SECURED PARTY AND FILE DATE AND FILE DATE) COLLATERAL DESCRIPTION
------------ ------------ ------------------ ------------- -------------- --------------------------------
DELAWARE SOS/ THRU 2/22/05 IBM CREDIT 10803168 N/A EQUIPMENT LEASE
UCC DIVISION CORPORATION 07/26/01
IBM CREDIT 10810866 N/A EQUIPMENT LEASE
CORPORATION 07/27/01
XXXXXXX LEASING 11123830 N/A SPECIFIC EQUIPMENT
CORPORATION 09/07/01
XXXXXXX LEASING 11279756 N/A SPECIFIC EQUIPMENT
CORPORATION 10/01/01
CROWN CREDIT 22044273 N/A SPECIFIC EQUIPMENT
COMPANY 08/05/02
LRC NORTH 22615916 N/A PURCHASE MONEY SECURITY
AMERICA, INC. 10/17/02 INTEREST
SSL AMERICAS, INC.
WATERS FINANCIAL 23135583 N/A EQUIPMENT LEASE
SERVICES 12/02/02
WATERS FINANCIAL 30574643 N/A EQUIPMENT LEASE
SERVICES 03/10/03
XXXXXXX LEASING 40752867 N/A SPECIFIC EQUIPMENT
CORPORATION 03/17/04
NEW YORK SOS/ THRU 3/4/05 IBM CREDIT 176859 N/A EQUIPMENT LEASE
UCC DIVISION CORPORATION 09/12/00
CITICORP VENDOR 230612 N/A EQUIPMENT LEASE
FINANCE, INC. 11/30/00
XXXXXX MATERIAL 248946 N/A SPECIFIC EQUIPMENT
HANDLING SYSTEMS, 12/29/00
INC.
ASSIGNEE:
XXXXXXX LEASING
CORPORATION
XXXXXX MATERIAL 049615 N/A SPECIFIC EQUIPMENT
HANDLING SYSTEMS, 03/14/01
INC.
ASSIGNEE:
XXXXXXX LEASING
CORPORATION
XXXXXX MATERIAL 060459 N/A SPECIFIC EQUIPMENT
HANDLING SYSTEMS, 03/29/01
INC.
ASSIGNEE:
XXXXXXX LEASING
CORPORATION
XXXXXX MATERIAL 071913 N/A SPECIFIC EQUIPMENT
HANDLING SYSTEMS, 04/13/01
INC.
ASSIGNEE:
XXXXXXX LEASING
CORPORATION
XXXXXXX FINANCIAL 115261 N/A EQUIPMENT LEASE
SERVICES 06/14/01
IBM CREDIT 140218 N/A EQUIPMENT LEASE
CORPORATION 07/26/01
IBM CREDIT 141130 N/A EQUIPMENT LEASE
CORPORATION 07/27/01
ABB STRUCTURED 178009 N/A EQUIPMENT LEASE
FINANCE 08/01/02
(AMERICAS) INC.
CORONET FUNDING, 200304150815648 EQUIPMENT LEASE
INC. 04/15/03
ASSIGNOR: 200307285217410 ASSIGNMENT
GREATAMERICA 07/28/03
LEASING
CORPORATION
AMERICAN EXPRESS 200311135510713 N/A EQUIPMENT LEASE
BUSINESS FINANCE 11/13/03
AMERICAN EXPRESS 200312091952148 N/A EQUIPMENT LEASE
BUSINESS FINANCE 12/09/03
XXXXX FARGO 200405100490402 N/A SPECIFIC EQUIPMENT
FINANCIAL LEASING 05/10/04
MICHIGAN THRU 3/15/05 [NO RECORD] X/X X/X X/X
X.X. XXXXXXX XXXXXXXX
XXXXX
[LITIGATION
SEARCH]
ALLEGAN COUNTY, THRU 3/14/05 [NO RECORD] N/A N/A N/A
MICHIGAN
CIRCUIT COURT
[LITIGATION
SEARCH]
SCHEDULE 6.04
INVESTMENTS
1. Investment by Agis in InfraServ GmbH & Co. Wiesbaden KG. (7% ownership)
2. Meditor Pharmaceuticals Ltd. 18.95% ownership. In addition, Agis holds
convertible debentures that can be converted into shares that will
increase the holding 23.57% (with full dilution 21.45%).
3. Investments by Agis in Danagis Ltd. (50% ownership interest)
4. Agis intends to negotiate and enter into a definitive agreement with
Sanmar specialty Chemicals Ltd. pursuant to the Agreement in Principles
of Joint Operations, dated October 27, 2004, by Chemagis Ltd. and
Sanmar Specialty Chemicals Ltd. (Approximate investment amount -- $3.5
million; involving only products of Chemagis and its subsidiaries).
5. Agis intends to negotiate and enter into a definitive agreement with
Xxxx Machteshim to acquire 100% of Luxemburg Pharmaceutical Ltd. or its
activities. (Approximate investment amount -- $9 million.)
6. Agis may invest up to $250,000 in a joint venture between
Natural-Formula (Asia) and Chindex for sale and marketing of
Natural-Formula products in Asia pursuant to existing contractual
arrangements between the parties.
7. Agis has investments totaling approximately 2,400,000 NIS in the IBI
mutual fund.
8. Agis has investment totaling approximately 675,000 NIS in the stocks
having the trading symbols of VRX and DSCO
9. Agis has investments totaling approximately 3,500,000 NIS in a
discretionary managed portfolio with (the) Xxxxxxxxx Shaharn (mutual
fund).
10. Agis has investments totaling approximately 7,500,000 NIS with (in)
Xxxxxx Asset Management comprised of corporate and government bonds.
11. Agis has investments totaling approximately 31,300,000 NIS in a
discretionary managed portfolio with Dash(S) Investments (mutual
funds).
12. Agis has investments totaling approximately 4,500,000 NIS in the EMDA
money market fund.
13. Agis has investments totaling approximately 10,000,000 NIS in the
Psagot money market fund.
14. Agis has investment totaling approximately $7,6000,000 USD in a Xxxxxxx
Xxxxx Fixed Income Investment Portfolio.
15. Agis has investments totaling approximately $7,600,000 USD in a Credit
Suisse First Boston Fixed Income Investment Portfolio.
16. Agis has time deposits totaling approximately $18,000,000 USD.
17. Agis, though its Careline (Pharmagis) Ltd. subsidiary, owns 80% of
Pureline, Inc.
18. Perrigo has a 50% ownership interest in Zibo Xinhua-Perrigo
Pharmaceutical Company, Ltd.
19. Perrigo has a 30% ownership interest in Shandex Sales Group Ltd.
20. Guaranty by Perrigo described in item #1 of Schedule 6.01.
SCHEDULE 6.08
EXISTING RESTRICTIONS
1. None
EXHIBIT A - ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the
Credit Agreement identified below (as amended, the
"
Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the
Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the
Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the
Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund of _____________]
3. U.S. Borrower(s): ______________________________
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the
administrative agent under the
Credit Agreement
5.
Credit Agreement: The
Credit Agreement dated as of March 16, 2005 among
Xxxxxxx Company, certain Foreign Subsidiary Borrowers
parties thereto, the Lenders parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent,
and Bank Leumi USA, as Syndication Agent
6. Assigned Interest:
Aggregate Amount of
Commitment/Loans for all Amount of Commitment/Loans Percentage Assigned of
Facility Assigned Lenders Assigned Commitment/Loan
----------------- ------------------------ -------------------------- ----------------------
$ $ %
$ $ %
$ $ %
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
2
Consented to and Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By
----------------------------------
Title:
------------------------------
Consented to:
[NAME OF RELEVANT PARTY]
By
----------------------------------
Title:
------------------------------
3
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the U.S. Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the U.S. Borrower, any of its Subsidiaries or Affiliates or any other Person
of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Michigan.
EXHIBIT B -- FOREIGN SUBSIDIARY BORROWER AGREEMENT
FOREIGN SUBSIDIARY BORROWER AGREEMENT
THIS FOREIGN SUBSIDIARY BORROWER AGREEMENT (this "Agreement"), dated
as of _____________, 20__, is entered into by _________________, a
________________ (the "New Foreign Subsidiary Borrower"), Xxxxxxx Company (the
"U.S. Borrower") and JPMorgan Chase Bank, N.A., as Administrative Agent,
pursuant to the Credit Agreement (as amended or modified from time to time, the
"Credit Agreement"), dated as of March 16, 2005, among the U.S. Borrower, the
Foreign Subsidiary Borrowers party hereto, the Lenders party hereto, JPMorgan
Chase Bank, N.A., as Administrative Agent, Bank Leumi USA, as Syndication Agent,
and _________ and ______________, as Documentation Agents.
WITNESSETH:
WHEREAS, the parties to this Foreign Subsidiary Borrower Agreement
wish to designate the New Foreign Subsidiary Borrower as a Foreign Subsidiary
Borrower under the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Foreign Subsidiary Borrower Agreement is entered into
pursuant to the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. The New Foreign Subsidiary Borrower hereby acknowledges that it has
received and reviewed a copy of the Credit Agreement and the other Loan
Documents and unconditionally agrees to: (a) join the Credit Agreement and the
other Loan Documents as a Foreign Subsidiary Borrower, (b) be bound by, and
hereby ratifies and confirms, all covenants, agreements, consents, submissions,
appointments, acknowledgments and other terms and provisions attributable to a
Foreign Subsidiary Borrower in the Credit Agreement and the other Loan
Documents; and (c) perform all obligations required of it as a Foreign
Subsidiary Borrower by the Credit Agreement and the other Loan Documents.
2. The New Foreign Subsidiary Borrower hereby represents and warrants
to the Agents and the Lenders that:
(a) The New Foreign Subsidiary Borrower is a Wholly-Owned Subsidiary of the
U.S. Borrower and satisfies all conditions to becoming a Foreign Subsidiary
Borrower under the Credit Agreement.
(b) The representations and warranties with respect to it contained in, or
made or deemed made by it in, the Credit Agreement and any other Loan Document
are true and correct in all material respects on the date hereof.
(c) The execution, delivery and performance by the New Foreign Subsidiary
Borrower of this Agreement are within its corporate powers and have been duly
authorized by all necessary corporate, stockholder and other action. This
Agreement has been duly executed and delivered by the New Foreign Subsidiary
Borrower and constitutes a legal, valid and binding obligation of the New
Foreign Subsidiary Borrower, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
(d) The execution, delivery and performance by the New Foreign Subsidiary
Borrower of this Agreement (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the New Foreign Subsidiary Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (iii) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the New Foreign Subsidiary Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the New Foreign Subsidiary Borrower or any of its
Subsidiaries, and (iv) will not result in the creation or imposition of any Lien
on any asset of the New Foreign Subsidiary Borrower or any of its Subsidiaries.
(e) The address and jurisdiction of incorporation of the Foreign Subsidiary
Borrower is set forth in Schedule A to this Agreement.
3. The U.S. Borrower represents and warrants to the Agents and the
Lenders that (a) no Default shall have occurred and be continuing hereunder as
of the date hereof; and (b) the representations and warranties made by the
Borrowers and contained in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on and as of such date (other than those representations and
warranties that by their terms speak as of a particular date, which
representations and warranties shall be true and correct in all material
respects as of such particular date).
4. The U.S. Borrower and each other Guarantor agrees that its Guaranty
shall remain in full force and effect after giving effect to this Foreign
Subsidiary Borrower Agreement, including without limitation after including the
New Foreign Subsidiary Borrower as a Foreign Subsidiary Borrower under the
Credit Agreement and the execution and delivery of any Ancillary Facility
Document.
5. The New Foreign Subsidiary shall be entitled [to obtain Revolving
Loans] [request the creation of Ancillary Facilities under Section 2.21 of the
Credit Agreement]. [Attached hereto as Schedule B is the final Ancillary
Facility Document.]
6. The New Foreign Subsidiary Borrower shall not become a Foreign
Subsidiary Borrower under the Credit Agreement until (a) this Agreement is
signed by all parties hereto and by the Administrative Agent and where indicated
below and (b) the Administrative Agent shall have received such documents
(including legal opinions) and certificates as the Administrative Agent or its
counsel may reasonably request relating to the formation, existence and good
standing of the New Foreign Subsidiary Borrower, the authorization of Borrowings
as they relate to the New Foreign Subsidiary Borrower and any other legal
matters relating to the New Foreign Subsidiary Borrower and this Agreement, all
in form and substance reasonably satisfactory to the Administrative Agent and
its counsel.
7. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Credit Agreement. This Foreign Subsidiary
Borrower Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. Except as expressly
amended hereby, each Borrower agrees that the Credit Agreement and the other
Loan Documents are ratified and confirmed and shall remain in full force and
effect, and that it has no set off, counterclaim, or defense with respect to any
of the foregoing. This Foreign Subsidiary Borrower Agreement may be executed in
any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Foreign
Subsidiary Borrower Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Foreign Subsidiary Borrower
2
Agreement. This Foreign Subsidiary Borrower Agreement shall be governed by, and
construed in accordance with, the law of the State of Michigan.
8. [Other modifications to the Credit Agreement provisions reasonably
requested by the Administrative Agent relating to laws, regulations and standard
practice of the jurisdiction of the New Foreign Subsidiary Borrower].
3
IN WITNESS WHEREOF, each of the undersigned has caused this Foreign
Subsidiary Borrower Agreement to be duly executed and delivered as of the day
and year set forth above.
________________________, as a Foreign
Subsidiary Borrower
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX COMPANY
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[EXISTING FOREIGN SUBSIDIARY BORROWERS]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[GUARANTORS]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Consented to:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
4
SCHEDULE A
ADMINISTRATIVE INFORMATION
Jurisdiction of organization:
Address:
5
SCHEDULE B
Final Ancillary Facility Document - if applicable
6
EXHIBIT C -- FOREIGN SUBSIDIARY BORROWER TERMINATION
FOREIGN SUBSIDIARY BORROWER TERMINATION
THIS FOREIGN SUBSIDIARY BORROWER TERMINATION (this "Agreement"), dated
as of _____________, 20__, is entered into by _________________, a
________________ (the "Foreign Subsidiary Borrower"), Xxxxxxx Company (the "U.S.
Borrower") and JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to
the Credit Agreement (as amended or modified from time to time, the "Credit
Agreement"), dated as of March 16, 2005, among the U.S. Borrower, the Foreign
Subsidiary Borrowers party hereto, the Lenders party hereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, Bank Leumi USA, as Syndication Agent, and
the Documentation Agents party thereto.
WITNESSETH:
WHEREAS, the parties to this Agreement wish to remove the Foreign
Subsidiary Borrower as a Foreign Subsidiary Borrower under the Credit Agreement
in the manner hereinafter set forth; and
WHEREAS, this Agreement is entered into pursuant to the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. The Foreign Subsidiary Borrower's ability to request or obtain
Loans under the Credit Agreement is hereby irrevocably terminated. The Foreign
Subsidiary Borrower shall no longer be considered a Foreign Subsidiary Borrower
for purposes of requesting or obtaining Loans and, upon payment in full of all
Obligations under the Credit Agreement and the other Loan Documents owing by the
Foreign Subsidiary Borrower, the Foreign Subsidiary Borrower shall no longer be
a party to the Credit Agreement.
2. The Foreign Subsidiary Borrower and the U.S. Borrower agree,
jointly and severally, that all Obligations under the Credit Agreement and the
other Loan Documents owing by the Foreign Subsidiary Borrower shall be paid in
full on the date hereof.
3. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Credit Agreement. This Foreign Subsidiary
Borrower Termination shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Foreign
Subsidiary Borrower Termination may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Foreign Subsidiary Borrower Termination
by telecopy shall be effective as delivery of a manually executed counterpart of
this Foreign Subsidiary Borrower Termination. This Foreign Subsidiary Borrower
Termination shall be governed by, and construed in accordance with, the law of
the State of Michigan.
IN WITNESS WHEREOF, each of the undersigned has caused this Foreign
Subsidiary Borrower Termination to be duly executed and delivered as of the day
and year set forth above.
________________________, as the Foreign
Subsidiary Borrower
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PERRIGO COMPANY
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Consented to:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
EXHIBIT D -- LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT
LENDER ADDITION AND ACKNOWLEDGEMENT AGREEMENT
Dated: ________, 20__
Reference is made to the Credit Agreement (as amended or modified from time
to time, the "Credit Agreement"), dated as of March 16, 2005, is among Xxxxxxx
Company, the Foreign Subsidiary Borrowers party hereto, the Lenders party
hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Bank Leumi USA, as
Syndication Agent, and the Documentation Agents party thereto. Capitalized terms
which are defined in the Credit Agreement and which are used herein without
definition shall have the same meanings herein as in the Credit Agreement.
The Borrowers and _________________________________ (the "[New or Current]
Lender") agree as follows:
1. Subject to Section 2.08 of the Credit Agreement and this Lender Addition
and Acknowledgement Agreement, the Borrowers hereby increase the Aggregate
Revolving Commitments from $__________ to $_____________ (such increase shall be
in increments of $10,000,000 and shall not cause the Aggregate Revolving
Commitment to exceed $325,000,000). This Lender Addition and Acknowledgement
Agreement is entered into pursuant to, and authorized by, Section 2.08 of the
Credit Agreement.
2. The parties hereto acknowledge and agree that, as of the date hereof and
after giving effect to this Lender Addition and Acknowledgment Agreement, the
Aggregate Commitment and the Commitment of each Lender under the Credit
Agreement, including without limitation, the [New or Current] Lender, are set
forth on Schedule 2.01 hereto, and that Schedule 2.01 hereto replaces Schedule
2.01 to the Credit Agreement as of the Closing Date.
3. [If requested by the Current Lender, the Current Lender attaches the
notes delivered to it under the Credit Agreement and requests that the Borrowers
exchange such notes for new notes in the amount of its revised Commitment][ If
requested by the New Lender, the New Lender requests that the Borrowers issue
notes in the amount of its Commitment.]
4. The [New or Current] Lender (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Lender Addition and Acknowledgment Agreement and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it satisfies the requirements, if any, specified in the Credit
Agreement that are required to be satisfied by it in order to execute and
perform this Lender Addition and Acknowledgment Agreement and become a Lender,
(iii) from and after the Closing Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent specified herein,
shall have the obligations of a Lender thereunder, (iv) it has received a copy
of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Lender Addition and
Acknowledgment Agreement on the basis of which it has made such analysis and
decision independently and without reliance on any Agent or any other Lender,
and (v) if it is a Foreign Lender, attached to this Lender Addition and
Acknowledgment Agreement is any documentation required to be delivered by it
pursuant
to the terms of the Credit Agreement, duly completed and executed by it; and (b)
agrees that (i) it will, independently and without reliance on any Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
5. The effective date for this Lender Addition and Acknowledgement
Agreement shall be ______________ (the "Closing Date"). Following the execution
of this Lender Addition and Acknowledgement Agreement, it will be delivered to
the Administrative Agent for the consent of the Administrative Agent and
acceptance and recording in the Register.
6. Upon such consents, acceptance and recording, from and after the Closing
Date, the [New or Current] Lender shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and to the extent provided
in this Lender Addition and Acknowledgement Agreement, have the rights and
obligations of a Lender under each such agreement.
7. Upon such consents, acceptance and recording, from and after the Closing
Date, the Administrative Agent shall make all payments in respect of the
interest assigned hereby (including payments of principal, interest, fees and
other amounts) to the [New or Current] Lender.
8. The U.S. Borrower represents and warrants to the Agents and the Lenders
that (a) no Default shall have occurred and be continuing hereunder as of the
Closing Date; and (b) the representations and warranties made by the Borrowers
and contained in Article III of the Credit Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on and as of such date (other than those representations and warranties that by
their terms speak as of a particular date, which representations and warranties
shall be true and correct in all material respects as of such particular date).
9. Except as expressly amended hereby, each Borrower agrees that the Credit
Agreement and the other Loan Documents are ratified and confirmed and shall
remain in full force and effect, and that it has no set off, counterclaim, or
defense with respect to any of the foregoing.
10. This Lender Addition and Acknowledgment Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Lender Addition and Acknowledgment Agreement may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Lender Addition and Acknowledgment Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Lender Addition and
Acknowledgment Agreement. This Lender Addition and Acknowledgment Agreement
shall be governed by, and construed in accordance with, the law of the State of
Michigan.
XXXXXXX COMPANY
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
[ANY FOREIGN SUBSIDIARY BORROWERS]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[CURRENT LENDER OR NEW LENDER]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Consented to:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3
EXHIBIT E -- FORM OF NOTE
NOTE
[Date]
_______________________, a ___________________ (the "Borrower"), promises
to pay to the order of ____________________________________ (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to the Credit Agreement (as hereinafter defined), in
immediately available funds at the office of JPMorgan Chase Bank, N.A.,, as
Administrative Agent, designated in the Credit Agreement, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Credit Agreement. The Borrower shall pay the principal of and accrued and
unpaid interest on the Loans in the amounts and at the times required under the
Credit Agreement.
The Lender shall, and is hereby authorized to record in accordance with its
usual practice, the date and amount of each Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement dated as of March 16, 2005 (the "Credit
Agreement") by and among
Perrigo Company, a Michigan corporation (the "U.S.
Borrower"), the Foreign Subsidiary Borrowers from time to time party thereto
(together with the U.S. Borrower, the "Borrowers"), the Lenders (together with
their respective successors and assigns, the "Lenders"), JPMorgan Chase Bank,
N.A., as Administrative Agent (in such capacity, the "Administrative Agent"),
Bank Leumi USA, as Syndication Agent, and the Documentation Agents party
thereto, to which Credit Agreement reference is hereby made for a statement of
the terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated. This Note
is secured and/or guaranteed as more specifically described in the Credit
Agreement and other Loan Documents, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Credit Agreement.
----------------------------------------
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
4
EXHIBIT F -- MANDATORY COST RATE
MANDATORY COST RATE
1. Definitions.
In this Exhibit F:
"Act" means the Bank of England Act of 1998.
The terms "Eligible Liabilities" and "Special Deposits" have the meanings
ascribed to the them under or pursuant to the Act or by the Bank of England (as
may be appropriate), on the day of the application of the formula set forth in
this Exhibit F.
"Fee Base" has the meaning ascribed to it for the purposes of, and shall be
calculated in accordance with, the Fees Regulations.
"Fees Regulations" means, as appropriate, either: (i) the Banking
Supervision (Fees) Regulations 1998, or (ii) such regulations as from time to
time may be in force, relating to the payment of fees for banking supervision in
the United Kingdom.
"FSA" means the Financial Services Authority.
2. Calculation of the Mandatory cost Rate.
The Mandatory Cost Rate is an incremental per annum addition to the
interest rate charged with respect to each Eurocurrency Loan to compensate the
Lenders for the cost attributable to such Eurocurrency Loan resulting from the
imposition from time to time under or pursuant to the Act and/or by the Bank of
England and/or the FSA (or other United Kingdom governmental authorities or
agencies) of a requirement to place non-interest bearing or Special Deposits
(whether interest bearing or not) with the Bank of England and/or pay fees to
the FSA calculated by reference to the liabilities used to fund the relevant
Eurocurrency Loan.
The "Mandatory Cost Rate" is the rate determined by the Administrative
Agent to be equal to the rate (rounded upward, if necessary, to the next higher
1/100 of 1%) resulting from the application of the following formula:
For Sterling:
AB + C(B - D) + E x 0.01
------------------------
100 - (A + C)
For other Agreed Currencies:
E x 0.01
--------
300
where on the day of application of the formula,
A is the percentage of Eligible Liabilities (in excess of any stated
minimum) which the Administrative Agent is from time to time required
to maintain as an interest free cash ratio deposit with the Bank of
England.
B is the Eurocurrency Base Rate applicable to the related Eurocurrency
Loan.
C is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which the Administrative Agent is
required from time to time to maintain by the Bank of England (or
other United Kingdom governmental authority or agency).
D is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on Special Deposits.
E is the rate payable by the Administrative Agent to the FSA pursuant to
the Fees Regulations and expressed in pounds per 1,000,000 Sterling of
the Fee Base of the Administrative Agent.
(A, B, C and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from B shall be
counted as zero.)
The Mandatory Cost Rate attributable to a Eurocurrency Loan for any period shall
be calculated at or about 11:00 a.m. (London time) on the first day of such
period for the duration of such period.
The determination of the Mandatory Cost Rate by the Administrative Agent in
relation to any period shall, in the absence of manifest error, be conclusive
and binding on all parties hereto.
2
EXHIBIT G-1
OPINION OF COUNSEL FOR THE U.S. BORROWER
[Effective Date]
March 9, 2005
JPMorgan Chase Bank, N.A., as Administrative
Agent, and the Lenders party to the
Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel for Xxxxxxx Company, a Michigan Corporation (the
"U.S. Borrower") and the Domestic Subsidiaries that are Guarantors in connection
with the Credit Agreement dated as of the date hereof (the "Credit Agreement")
among the U.S. Borrower, the Foreign Subsidiary Borrowers party thereto, the
Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Bank
Leumi USA, as Syndication Agent, and the Documentation Agents party thereto.
This opinion is being rendered to you at the request of the U.S. Borrower
pursuant to Section 4.01(b) of the Credit Agreement.
For purposes of this opinion, we have examined an executed copy of the
Credit Agreement and the Guaranty dated as of the date hereof executed by the
Guarantors (together with the Credit Agreement, the "Credit Documents"). We have
also examined such other documents and instruments concerning the U.S. Borrower
and the Domestic Subsidiaries that are Guarantors (collectively, the "Obligors")
and have made such further investigation as we have deemed necessary or
appropriate in connection with this opinion. The law covered by the opinions
expressed herein is limited to the federal law of the United States and the law
of the state of Michigan.
In forming the basis for our opinion as follows, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as copies. In rendering the opinions
expressed in paragraph 2 below, we have further assumed that the Credit
Documents constitute the respective legal, valid and binding obligations of all
parties thereto other than the Obligors. We have relied, to the extent that we
have deemed such reliance proper, upon factual representations made by the
Obligors in the Credit Documents with respect to the accuracy of factual matters
contained therein with respect to it and its Subsidiaries, which we have not
independently established. Except as otherwise indicated in this opinion,
capitalized terms are defined or used as set forth in the Credit Agreement. As
used herein, the phrase "to the best of our knowledge" means inquiry of an
executive officer of the Obligors and the actual knowledge of attorneys in our
firm primarily responsible for the provision of legal services to the Obligors.
Based upon and subject to the foregoing, we are of the opinion, as of the
date hereof, that:
1
1. Each Obligor (a) is a corporation duly organized, validly existing and
in good standing under the laws of the state of Michigan, (b) has all requisite
power and authority to carry on its business as now conducted, and (c) except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
2. The Credit Documents (a) have been duly authorized by proper corporate
action on the part of each Obligor, (b) have been duly executed and delivered by
each Obligor, and (c) constitute the valid and binding obligations of each
Obligor, enforceable against each Obligor in accordance with their respective
terms, except as the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws relating to or affecting the rights of creditors generally, (ii)
general principles of equity, and (iii) limitations imposed by applicable law on
the enforceability of purported waivers of rights and defenses.
3. The execution, delivery, and performance by each Obligor of the Credit
Documents to which it is a party and compliance with the terms and provisions
thereof do not and will not (a) violate any provision of the articles of
incorporation or bylaws of each Obligor, (b) violate any applicable law, rule,
or regulation, (c) to the best of our knowledge, violate any order, writ,
injunction, or decree of any Michigan or federal Governmental Authority or
arbitral award applicable to each Obligor, or (d) to the best of our knowledge,
result in a breach of, constitute a default under, require any consent under, or
result in the acceleration or require prepayment of any indebtedness pursuant to
the terms of any agreement or instrument to which each Obligor is a party or by
which it is bound, or result in the creation or imposition of any Lien or other
encumbrance upon any property of each Obligor pursuant to the terms of any such
agreement or instrument.
4. To the best of our knowledge and except for the Disclosed Matters, there
is no action, suit, or proceeding pending against or overtly threatened against
or affecting, the U.S. Borrower or any of its Subsidiaries before any arbitrator
or Governmental Authority in which an adverse decision could reasonably be
expected to have a Material Adverse Effect or which in any manner draws into
question the validity or enforceability of the Credit Documents.
5. No authorization, consent, or approval of, or filing or registration
with, any Michigan or federal Governmental Authority is required for the
execution, delivery, or performance by each Obligor of the Credit Documents or
for the validity or enforceability thereof against each Obligor.
6. Neither the U.S. Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding" company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
7. Assuming that the Borrowers will comply with the provisions of the
Credit Agreement relating to the use of proceeds, the making of Advances under
the Credit Agreement will not violate the Regulations of the Board, including
Regulations U and X. The Equity Interests of Agis are not Margin Stock.
8. The provisions of the Collateral Documents are sufficient to create in
favor of the Administrative Agent a valid security interest in all right, title
and interest of Xxxxxxx International, Inc. in the collateral described in the
Collateral Documents to the extent a security interest may be created in such
items and types of collateral under Article 9 of the UCC as in effect on the
date hereof. Upon the due filing of the Uniform Commercial Code financing
statements attached hereto as Exhibit A with the Secretary of State of the State
of Michigan, the Administrative Agent will have a perfected security interest in
all right, title and interest of Xxxxxxx International, Inc. in those items and
types of collateral
2
described in the Collateral Documents in which a security interest may be
perfected by the due filing of a financing statement in the State of Michigan
under the UCC. Based on the assumption that the Administrative Agent has taken
delivery and is retaining possession in Michigan of the stock certificates
evidencing the Equity Interests described on Exhibit B (the "Pledged Stock"),
together with the properly executed stock powers described on Exhibit C, and
that the Administrative Agent has taken delivery of such Pledged Stock and stock
powers and its security interest in good faith without notice of any adverse
claim within the meaning of the UCC, there has been created under the Security
Agreement, and there has been granted to the Administrative Agent, a valid and
perfected security interest in the Pledged Stock, free of any adverse claims as
defined in the UCC.
Any permitted assignee of any Lender may also rely on this opinion;
provided, however, that nothing herein shall be construed as requiring us to
update or supplement this opinion.
Very truly yours,
----------------------------------------
3
EXHIBIT G-2
OPINION OF COUNSEL FOR THE FOREIGN SUBSIDIARY BORROWER
[Effective Date]
The Agents and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
We are counsel for [name of Foreign Subsidiary Borrower] (the "Foreign
Subsidiary Borrower") organized under the laws of ________________ (the
"Jurisdiction"), and have represented the Foreign Subsidiary Borrower in
connection with a Credit Agreement dated as of _________, 2005 (the "Credit
Agreement") by and among Xxxxxxx Company, a Michigan corporation (the
"Company"), the Subsidiary Borrowers from time to time party thereto (together
with the Company, the "Borrowers"), the Lenders (together with their respective
successors and assigns, the "Lenders"), JPMorgan Chase Bank, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent"), and Bank
Leumi USA, as Syndication Agent, and in connection with the other Loan Documents
executed in connection therewith and the Agis Acquisition. All capitalized terms
used in this opinion and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
We have examined the Foreign Subsidiary Borrower's [list organizational
documents and evidence of due authorization], the Loan Documents to which the
Foreign Subsidiary Borrower is a party and such other matters of fact and law
which we deem necessary in order to render this opinion. Based upon the
foregoing, it is our opinion that:
1. The Foreign Subsidiary Borrower is duly organized, validly existing and
in good standing under the laws of _______________ [specify the jurisdiction of
its organization] (the "Jurisdiction").
2. The Foreign Subsidiary Borrower has the power and authority, and the
legal right, to make, deliver and perform its obligations under the Credit
Agreement and the other Loan Documents to which it is a party and to borrow
under the Credit Agreement. The Foreign Subsidiary Borrower has taken all
necessary corporate action to authorize the performance of its obligations under
the Credit Agreement and the other Loan Documents to which it is a party and to
authorize the execution, delivery and performance of the Credit Agreement and
the other Loan Documents to which it is a party.
3. Except for consents, authorizations, approvals, notices and filings
described on an attached schedule, all of which have been obtained, made or
waived and are in full force and effect, no consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
governmental authority is required in connection with the borrowings by the
Foreign Subsidiary Borrower under the Credit Agreement or with the execution,
delivery, performance, validity or enforceability of the Credit Agreement or any
other Loan Document.
4. The Credit Agreement and each other Loan Document to which it is a party
have been duly executed and delivered on behalf of the Foreign Subsidiary
Borrower.
5. The execution and delivery of the Credit Agreement and each other Loan
Document to which it is a party by the Foreign Subsidiary Borrower, the
performance of its obligations thereunder, the consummation of the transactions
contemplated thereby, the compliance by the Foreign Subsidiary Borrower with any
of the provisions thereof, the borrowings under the Credit Agreement and the use
of proceeds thereof, all as provided therein, (a) will not violate, or
constitute a default under, any law, rule, regulation or governmental order
applicable to the Foreign Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such law, rule, regulation or governmental order.
6. There are no taxes imposed by the Jurisdiction (a) based on or by virtue
of the execution, delivery, enforcement or performance of the Credit Agreement
or any other Loan Document to which it is a party or (b) on any payment to be
made by any Obligor pursuant to the Credit Agreement or any other Loan Document
to which it is a party.
7. To ensure the legality, validity, enforceability or admissibility in
evidence of the Credit Agreement and each other Loan Document to which it is a
party, it is not necessary that the Credit Agreement or any other Loan Document
or any other document be filed, registered or recorded with, or executed or
notarized before, any court of other authority of the Jurisdiction or that any
registration charge or stamp or similar tax be paid on or in respect of the
Credit Agreement or any other Loan Document to which it is a party.
8. The Credit Agreement and each other Loan Document to which it is a party
are in proper legal form under the laws of the Jurisdiction for the enforcement
thereof against the Foreign Subsidiary Borrower under the laws of the
Jurisdiction.
9. In any action or proceeding arising out of or relating to the Credit
Agreement or any other Loan Document to which any Obligor is a party in any
court in the Jurisdiction, such court would recognize and give effect to the
choice of law provisions in the Credit Agreement and each other Loan Document to
which it is a party.
10. It is not necessary under the laws of the Jurisdiction (a) in order to
enable the Agents and the Lenders or any of them to enforce their respective
rights of the Credit Agreement and each other Loan Document to which it is a
party or (b) by reason of the execution of the Credit Agreement or any other
Loan Document to which any Obligor is a party or the performance of the Credit
Agreement or any other Loan Document to which any Obligor is a party that any of
them should be licensed, qualified or entitled to carry on business in the
Jurisdiction.
11. Neither any Agent nor any of the Lenders will be deemed to be resident,
domiciled, carrying on business or subject to taxation in the Jurisdiction
merely by reason of the execution of the Credit Agreement or any other Loan
Document to which or any Obligor is a party is a party or the performance or
enforcement of any thereof. The performance by the Agents and the Lenders or any
of them of any action required or permitted under the Credit Agreement or any
other Loan Document to which it is a party will not violate any law or
regulation, or be contrary to the public policy, of the Jurisdiction.
12. If any judgment of a competent court outside the Jurisdiction were
rendered against any Obligor in connection with any action arising out of or
relating to the Credit Agreement or any other Loan Document to which it is a
party, such judgment would be recognized and could be sued upon in the courts of
the Jurisdiction, and such courts could grant a judgment which would be
enforceable against the Foreign Subsidiary Borrower in the Jurisdiction without
any retrial unless it is shown that (a) the foreign
2
court did not have jurisdiction in accordance with its jurisdictional rules, (b)
the party against whom the judgment of such foreign court was obtained had no
notice of the proceedings or (c) the judgment of such foreign court was obtained
through collusion or fraud or was based upon clear mistake of fact or law.
This opinion may be relied upon by the Agents, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
----------------------------------------
3
