THREE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT Dated as of August 9, 2010 among ITT CORPORATION THE LENDERS NAMED HEREIN, JPMORGAN CHASE BANK, N.A., as Administrative Agent and CITIGROUP GLOBAL MARKETS INC., as Syndication...
Exhibit 10.1
EXECUTION COPY
THREE-YEAR COMPETITIVE ADVANCE AND REVOLVING
Dated as of August 9, 2010
among
ITT CORPORATION
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
CITIGROUP GLOBAL MARKETS INC.,
as Syndication Agent
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NY BRANCH
SOCIÉTÉ GÉNÉRALE
XXXXX FARGO BANK, N.A.
BARCLAYS BANK PLC
THE ROYAL BANK OF SCOTLAND PLC and
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agents
X.X. XXXXXX SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms |
1 | |||
SECTION 1.02. Terms Generally |
19 | |||
SECTION 1.03. Accounting Terms; GAAP |
19 | |||
ARTICLE II |
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THE CREDITS |
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SECTION 2.01. Commitments |
19 | |||
SECTION 2.02. Loans |
19 | |||
SECTION 2.03. Competitive Bid Procedure |
21 | |||
SECTION 2.04. Revolving Borrowing Procedure |
24 | |||
SECTION 2.05. Letters of Credit |
24 | |||
SECTION 2.06. Conversion and Continuation of Revolving Loans |
28 | |||
SECTION 2.07. Fees |
29 | |||
SECTION 2.08. Repayment of Loans; Evidence of Debt |
31 | |||
SECTION 2.09. Interest on Loans |
31 | |||
SECTION 2.10. Default Interest |
32 | |||
SECTION 2.11. Alternate Rate of Interest |
32 | |||
SECTION 2.12. Termination, Reduction, Extension and Increase of Commitments |
32 | |||
SECTION 2.13. Prepayment |
35 | |||
SECTION 2.14. Reserve Requirements; Change in Circumstances |
35 | |||
SECTION 2.15. Change in Legality |
36 | |||
SECTION 2.16. Indemnity |
37 | |||
SECTION 2.17. Pro Rata Treatment |
38 | |||
SECTION 2.18. Sharing of Setoffs |
38 | |||
SECTION 2.19. Payments |
39 | |||
SECTION 2.20. Taxes |
40 | |||
SECTION 2.21. Duty to Mitigate; Assignment of Commitments Under Certain Circumstances |
43 | |||
SECTION 2.22. Defaulting Lenders |
44 | |||
ARTICLE III |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 3.01. Organization; Powers |
46 | |||
SECTION 3.02. Authorization |
46 | |||
SECTION 3.03. Enforceability |
46 | |||
SECTION 3.04. Governmental Approvals |
46 |
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SECTION 3.05. Financial Statements |
46 | |||
SECTION 3.06. Litigation; Compliance with Laws |
47 | |||
SECTION 3.07. Federal Reserve Regulations |
47 | |||
SECTION 3.08. Investment Company Act |
47 | |||
SECTION 3.09. Use of Proceeds |
47 | |||
SECTION 3.10. Full Disclosure; No Material Misstatements |
47 | |||
SECTION 3.11. Taxes |
48 | |||
SECTION 3.12. Employee Pension Benefit Plans |
48 | |||
SECTION 3.13. OFAC |
48 | |||
ARTICLE IV |
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CONDITIONS OF LENDING |
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SECTION 4.01. All Extensions of Credit |
49 | |||
SECTION 4.02. Effective Date |
49 | |||
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary |
50 | |||
ARTICLE V |
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COVENANTS |
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SECTION 5.01. Existence |
51 | |||
SECTION 5.02. Business and Properties |
51 | |||
SECTION 5.03. Financial Statements, Reports, etc |
51 | |||
SECTION 5.04. Insurance |
52 | |||
SECTION 5.05. Obligations and Taxes |
52 | |||
SECTION 5.06. Litigation and Other Notices |
53 | |||
SECTION 5.07. Maintaining Records; Access to Properties and Inspections |
53 | |||
SECTION 5.08. Use of Proceeds |
53 | |||
SECTION 5.09. Consolidations, Mergers, and Sales of Assets |
53 | |||
SECTION 5.10. Limitations on Liens |
53 | |||
SECTION 5.11. Limitations on Sale and Leaseback Transactions |
56 | |||
SECTION 5.12. Consolidated EBITDA to Consolidated Interest Expense |
56 | |||
ARTICLE VI |
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EVENTS OF DEFAULT |
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ARTICLE VII |
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GUARANTEE |
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ARTICLE VIII |
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THE ADMINISTRATIVE AGENT |
3
ARTICLE IX |
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MISCELLANEOUS |
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SECTION 9.01. Notices |
62 | |||
SECTION 9.02. Survival of Agreement |
63 | |||
SECTION 9.03. Binding Effect |
63 | |||
SECTION 9.04. Successors and Assigns |
63 | |||
SECTION 9.05. Expenses; Indemnity |
67 | |||
SECTION 9.06. APPLICABLE LAW |
68 | |||
SECTION 9.07. Waivers; Amendment |
68 | |||
SECTION 9.08. Entire Agreement |
69 | |||
SECTION 9.09. Severability |
69 | |||
SECTION 9.10. Counterparts |
69 | |||
SECTION 9.11. Headings |
69 | |||
SECTION 9.12. Right of Setoff |
69 | |||
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS |
69 | |||
SECTION 9.14. WAIVER OF JURY TRIAL |
70 | |||
SECTION 9.15. Addition of Borrowing Subsidiaries |
70 | |||
SECTION 9.16. Conversion of Currencies |
71 | |||
SECTION 9.17. USA PATRIOT Act |
71 | |||
EXHIBITS AND SCHEDULES |
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Exhibit A-1 Form of Competitive Bid Request |
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Exhibit A-2 Form of Notice of Competitive Bid Request |
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Exhibit A-3 Form of Competitive Bid |
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Exhibit A-4 Form of Competitive Bid Accept/Reject Letter |
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Exhibit A-5 Form of Revolving Borrowing Request |
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Exhibit B Form of Assignment and Assumption |
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Exhibit C Form of Opinion of Counsel for ITT Corporation |
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Exhibit D Form of Borrowing Subsidiary Agreement |
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Exhibit E Form of Issuing Bank Agreement |
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Exhibit F Form of Note |
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Exhibit G Form of US Tax Certificate |
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Schedule 2.01 Commitments |
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Schedule 5.10 Existing Liens |
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THREE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (as it may be amended, supplemented or otherwise modified, the
“Agreement”) dated as of August 9, 2010, among ITT CORPORATION, an Indiana
corporation (the “Company”), each Borrowing Subsidiary party hereto, the
lenders listed in Schedule 2.01 (together with their successors and
permitted assigns, the “Lenders”), JPMORGAN CHASE BANK, N.A., a New York
State banking organization, as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”) and CITIGROUP GLOBAL MARKETS
INC., as Syndication Agent for the Lenders.
The Lenders have been requested to extend credit to the Borrowers (such term and each other
capitalized term used but not otherwise defined herein having the meaning assigned to it in Article
I) to enable them to borrow on a standby revolving credit basis on and after the date hereof and at
any time and from time to time prior to the Maturity Date a principal amount not in excess of
$1,500,000,000 at any time outstanding. The Lenders have also been requested to provide procedures
pursuant to which the Borrowers may invite the Lenders to bid on an uncommitted basis on short-term
borrowings by the Borrowers and issuances of letters of credit for the Borrowers. The proceeds of
such borrowings are to be used for working capital and other general corporate purposes (including,
without limitation, commercial paper backup), and to repay any amounts outstanding under the
Existing Credit Agreement. The letters of credit shall support payment obligations incurred in the
ordinary course of business by the Borrowers. The Lenders are willing to extend credit on the
terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
“ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.
“ABR Loan” shall mean any ABR Revolving Loan.
“ABR Revolving Borrowing” shall mean a Revolving Borrowing comprised of ABR Loans.
“ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Article II.
“Accession Agreement” shall have the meaning assigned to such term in Section 2.12(e).
“Administrative Fees” shall have the meaning assigned to such term in Section 2.07(b).
“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing (including any notional
Eurocurrency Borrowing of one month referred to in the definition of the term “Alternate Base
Rate”) for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form supplied
by the Administrative Agent.
“Affiliate” shall mean, when used with respect to a specified Person, another Person that
directly or indirectly controls or is controlled by or is under common control with the Person
specified.
“Aggregate Credit Exposure” shall mean the aggregate amount of all the Lenders’ Credit
Exposures.
“Agreement Currency” shall have the meaning assigned to such term in Section 9.16(b).
“Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted
LIBO Rate (which, for the avoidance of doubt, shall not include the Applicable Percentage with
respect to Eurocurrency Loans) on such day (or if such day is not a Business Day, the immediately
preceding Business Day) for a deposit in dollars with a maturity of one month plus 1%. For
purposes hereof, “Prime Rate” shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such change is publicly
announced as effective. “Federal Funds Effective Rate” shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as released on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so released for any day which is a
Business Day, the arithmetic average (rounded upwards to the next 1/100th of 1%), as determined by
the Administrative Agent, of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate,
or the Adjusted LIBO Rate, respectively.
2
“Applicable Percentage” shall mean on any date, with respect to Eurocurrency Loans, ABR Loans,
the Facility Fee or the L/C Participation Fee, as the case may be, the applicable percentage set
forth below under the caption “Eurocurrency Spread,” “Alternate Base Rate Spread”, “Facility Fee
Percentage” or “L/C Participation Fee Percentage,” as the case may be, based upon the Ratings in
effect on such date:
Eurocurrency | Alternate Base Rate | Facility Fee | L/C Participation | |||||||||||||
Spread | Spread | Percentage | Fee Percentage | |||||||||||||
Category 1 |
||||||||||||||||
A2 or higher by Xxxxx’x; |
1.350 | % | 0.350 | % | 0.150 | % | 1.350 | % | ||||||||
A or higher by S&P;
A or higher by Fitch |
||||||||||||||||
Category 2 |
||||||||||||||||
A3 by Xxxxx’x; |
1.575 | % | 0.575 | % | 0.175 | % | 1.575 | % | ||||||||
A- by S&P;
A- by Fitch |
||||||||||||||||
Category 3 |
||||||||||||||||
Baa1 by Xxxxx’x; |
1.775 | % | 0.775 | % | 0.225 | % | 1.775 | % | ||||||||
BBB+ by S&P;
BBB+ by Fitch |
||||||||||||||||
Category 4 |
||||||||||||||||
Baa2 by Xxxxx’x; |
1.925 | % | 0.925 | % | 0.325 | % | 1.925 | % | ||||||||
BBB by S&P;
BBB by Fitch |
||||||||||||||||
Category 5 |
||||||||||||||||
Baa3 by Xxxxx’x; |
2.050 | % | 1.050 | % | 0.450 | % | 2.050 | % | ||||||||
BBB- by S&P;
BBB- by Fitch |
||||||||||||||||
Category 6 |
||||||||||||||||
Lower than Baa3 by Xxxxx’x; |
2.200 | % | 1.200 | % | 0.550 | % | 2.200 | % | ||||||||
Lower than BBB- by S&P;
Lower than BBB- by Fitch |
||||||||||||||||
For purposes of the foregoing: (i) if any Rating Agency shall merge with or into or be
acquired by another Rating Agency, or shall cease to be in the business of rating corporate debt
obligations, or shall otherwise cease to have a Rating in effect notwithstanding the Company’s use
of commercially reasonable efforts to cause such a Rating to be maintained in effect, then the
Eurocurrency Spread, Alternate Base Rate Spread, Facility Fee Percentage and L/C Participation Fee
Percentage shall be determined by reference to the Rating or Ratings remaining available or deemed
to be available as provided below; (ii) if any Rating Agency shall not have a Rating in effect for
a reason other than one of the reasons set forth in the preceding clause (i), such Rating Agency
shall be deemed to have a Rating available and such Rating shall be deemed to be in Category 6;
(iii) if the Ratings available or deemed to be available shall fall in different Categories, then
(A) if Ratings are available or deemed to be available from all three Rating Agencies, the
Eurocurrency Spread, Alternate Base Rate Spread, Facility Fee Percentage and L/C Participation Fee
Percentage shall be determined by reference to the
3
highest Category achieved or exceeded by at least two of the three Ratings, (B) if Ratings are
available or deemed to be available from only two Rating Agencies, the Eurocurrency Spread,
Alternate Base Rate Spread, Facility Fee Percentage and L/C Participation Fee Percentage shall be
determined by reference to the higher of the two Ratings or, if the Ratings differ by more than one
Category, the Category one level below that corresponding to the higher of the two Ratings and (C)
if a Rating is available or deemed to be available from only one Rating Agency, the Eurocurrency
Spread, Alternate Base Rate Spread, Facility Fee Percentage and L/C Participation Fee Percentage
shall be determined by reference to that Rating; and (iv) if any Rating shall be changed (other
than as a result of a change in the rating system of the applicable Rating Agency), such change
shall be effective as of the date on which it is first announced by the Rating Agency making such
change. Each change in the Applicable Percentage shall apply to all outstanding Eurocurrency Loans
and ABR Loans and to L/C Participation Fees and Facility Fees accruing during the period commencing
on the effective date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of any Rating Agency shall change, the parties
hereto shall negotiate in good faith to amend the references to specific ratings in this definition
to reflect such changed rating system and, pending the effectiveness of any such amendment, the
Applicable Percentage shall be determined by reference to the Rating most recently in effect from
such Rating Agency prior to such change.
“Applicable Share” of any Lender at any time shall mean the percentage of the Total Commitment
represented by such Lender’s Commitment; provided that in the case of Section 2.22 when a
Defaulting Lender shall exist, “Applicable Share” shall mean the percentage of the Total
Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments shall be terminated pursuant to Article VI, the Applicable Shares
of the Lenders shall, subject only to assignments pursuant to Section 9.04, be based upon the
Commitments in effect immediately prior to such termination.
“Approved Fund” means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in commercial loans and similar extensions of credit in the
ordinary course 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.
“Assignment and Assumption” shall mean an Assignment and Assumption entered into by a Lender
and an assignee in the form of Exhibit B.
“Bankruptcy Event” shall mean, with respect to any Person, that such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or in the good faith judgment of
the Administrative Agent has consented to, approved of, or acquiesced in any such proceeding or
appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership
interest or the acquisition of any ownership interest in, or the exercise of control over, such
Person by a Governmental Authority or instrumentality thereof, provided, further, that such
ownership interest does not result in or provide such Person with immunity from the
4
jurisdiction of courts within the United States or from the enforcement of judgments or writs
of attachment on its assets or permit such Person (or such Governmental Authority or
instrumentality) to reject, repudiate, disavow or disaffirm its obligations hereunder.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Board of Directors” shall mean the Board of Directors of a Borrower or any duly authorized
committee thereof.
“Borrower” shall mean the Company or any Borrowing Subsidiary.
“Borrowing” shall mean a group of Loans of a single Type made by the Lenders (or, in the case
of a Competitive Borrowing, by the Lender or Lenders whose Competitive Bids have been accepted
pursuant to Section 2.03) on a single date and as to which a single Interest Period is in effect.
“Borrowing Date” shall mean any date on which a Borrowing is made or a Letter of Credit issued
hereunder.
“Borrowing Subsidiary” shall mean any Subsidiary which shall have executed and delivered to
the Administrative Agent for distribution to each Lender a Borrowing Subsidiary Agreement.
“Borrowing Subsidiary Agreement” shall mean an agreement, in the form of Exhibit D hereto,
duly executed by the Company and a Subsidiary.
“Business Day” shall mean any day (other than a day which is a Saturday, Sunday or legal
holiday in the State of New York) on which banks are open for business in New York City; provided,
however, that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in deposits in the applicable currency in
the London interbank market, and, when used in connection with determining any date on which any
amount is to be paid or made available in a Non-US Currency, the term “Business Day” shall also
exclude any day on which commercial banks and foreign exchange markets are not open for business in
the principal financial center in the country of such Non-US Currency or Frankfurt, Germany if such
Non-US Currency is Euro.
“Capitalized Lease-Back Obligation” shall mean with respect to a Principal Property, at any
date as of which the same is to be determined, the total net rental obligations of the Company or a
Restricted Subsidiary under a lease of such Principal Property, entered into as part of an
arrangement to which the provisions of Section 5.11 are applicable (or would have been applicable
had such Restricted Subsidiary been a Restricted Subsidiary at the time it entered into such
lease), discounted to the date of computation at the rate of interest per annum implicit in the
lease (determined in accordance with GAAP). The amount of the net rental obligation for any
calendar year under any lease shall be the sum of the rental and other payments required to be paid
in such calendar year by the lessee thereunder, not including, however, any amounts required to be
paid by such lessee (whether or not therein designated as rental or
5
additional rental) on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges.
A “Change in Control” shall be deemed to have occurred if (a) any Person or group of Persons
shall have acquired beneficial ownership of more than 30% of the outstanding Voting Shares of the
Company (within the meaning of Section 13(d) or 14(d) of the Exchange Act and the applicable rules
and regulations thereunder), or (b) during any period of 12 consecutive months, commencing after
the Effective Date, individuals who on the first day of such period were directors of the Company
(together with any replacement or additional directors who were nominated or elected by a majority
of directors then in office) cease to constitute a majority of the Board of Directors of the
Company.
“Code” shall mean the Internal Revenue Code of 1986, as the same may be amended from time to
time, and the Treasury regulations promulgated thereunder.
“Commitment” shall mean, with respect to each Lender, the commitment of such Lender hereunder
as set forth as of the Effective Date in Schedule 2.01 under the heading “Commitment” or in an
Assignment and Assumption delivered by such Lender under Section 9.04 as such Lender’s Commitment
may be permanently terminated or reduced from time to time pursuant to Section 2.12 or pursuant to
one or more assignments under Section 9.04. The Commitment of each Lender shall automatically and
permanently terminate on the Maturity Date if not terminated earlier pursuant to the terms hereof.
“Competitive Bid” shall mean an offer by a Lender to make a Competitive Loan pursuant to
Section 2.03.
“Competitive Bid Accept/Reject Letter” shall mean a notification made by a Borrower pursuant
to Section 2.03(d) in the form of Exhibit A-4.
“Competitive Bid Rate” shall mean, as to any Competitive Bid, (i) in the case of a
Eurocurrency Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
“Competitive Bid Request” shall mean a request made pursuant to Section 2.03(a) in the form of
Exhibit A-1.
“Competitive Borrowing” shall mean a Borrowing consisting of a Competitive Loan or concurrent
Competitive Loans from the Lender or Lenders whose Competitive Bids for such Borrowing have been
accepted under the bidding procedure described in Section 2.03.
“Competitive Loan” shall mean a Loan made pursuant to the bidding procedure described in
Section 2.03. Each Competitive Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan
and will be denominated in either Dollars or a Non-US Currency.
6
“Competitive Loan Exposure” shall mean, with respect to any Lender at any time, the sum of (a)
the aggregate principal amount of all outstanding Competitive Loans denominated in Dollars made by
such Lender and (b) the sum of the Dollar Equivalents of the principal amounts of all outstanding
Competitive Loans denominated in Non-US Currencies made by such Lender, determined on the basis of
the applicable Exchange Rates in effect on the respective dates of the Competitive Bid Requests
pursuant to which such Competitive Loans were made.
“Consenting Lender” shall have the meaning assigned to such term in Section 2.12(d).
“Consolidated EBITDA” shall mean, for any period, (a) Consolidated Net Income for such period,
plus (b) provisions for taxes based on income during such period, plus (c) Consolidated Interest
Expense for such period, plus (d) total depreciation expense for such period, plus (e) total
amortization expense for such period, plus (f) restructuring charges recorded during such period
minus (g) cash expenditures during such period that are applied against restructuring charges
recorded during such period or any prior period, all of the foregoing as determined on a
consolidated basis for the Company and the Subsidiaries in accordance with GAAP; provided that
there shall be excluded from such calculation the net gains or losses associated with the sale of
any asset not in the ordinary course of business.
“Consolidated Interest Expense” shall mean, for any period, the gross interest expense of the
Company and the Subsidiaries for such period determined on a consolidated basis in accordance with
GAAP.
“Consolidated Net Income” shall mean, for any period, net income or loss of the Company and
the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Tangible Assets” shall mean the total of all assets appearing on a
consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in accordance
with GAAP (and as of a date not more than 90 days prior to the date as of which Consolidated Net
Tangible Assets are to be determined), less the sum of the following items as shown on said
consolidated balance sheet:
(i) the book amount of all segregated intangible assets, including such items as good
will, trademarks, trademark rights, trade names, trade name rights, copyrights, patents,
patent rights and licenses and unamortized debt discount and expense less unamortized debt
premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other than Preferred Stock) and
surplus of Restricted Subsidiaries of the Company;
7
(v) the investment of the Company and its Restricted Subsidiaries in any Unrestricted
Subsidiary of the Company;
(vi) the total indebtedness of the Company and its Restricted Subsidiaries incurred in
any manner to finance or recover the cost to the Company or any Restricted Subsidiary of
any physical property, real or personal, which prior to or simultaneously with the creation
of such indebtedness shall have been leased by the Company or a Restricted Subsidiary to
the United States of America or a department or agency thereof at an aggregate rental,
payable during that portion of the initial term of such lease (without giving effect to any
options of renewal or extension) which shall be unexpired at the date of the creation of
such indebtedness, sufficient (taken together with any amounts required to be paid by the
lessee to the lessor upon any termination of such lease) to pay in full at the stated
maturity date or dates thereof the principal of and the interest on such indebtedness;
(vii) deferred income and deferred liabilities; and
(viii) other items deductible under GAAP.
“Credit Exposure” shall mean, with respect to any Lender at any time, the Dollar Equivalent of
the aggregate principal amount at such time of all outstanding Loans of such Lender, plus the
aggregate amount at such time of such Lender’s L/C Exposure.
“Credit Party” shall mean the Administrative Agent, the Issuing Bank or any Lender.
“Declining Lender” shall have the meaning assigned to such term in Section 2.12(d).
“Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.
“Defaulting Lender” shall mean any Lender that (a) has failed, within two Business Days of the
date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of
its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of such Lender’s good faith
determination that a condition precedent to funding (specifically identified and including the
particular default, if any) has not been satisfied or, in the case of clause (iii), such payment is
the subject of a good faith dispute, (b) has notified the Company, any other Borrower or any Credit
Party in writing, or has made a public statement to the effect, that it does not intend or expect
to comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular default, if any) to
funding a loan under this Agreement cannot be satisfied) or generally under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after request by the
Administrative Agent made in good faith to provide a
8
certification in writing from an authorized officer of such Lender that it will comply with
its obligations to fund prospective Loans and participations in then outstanding Letters of Credit
under this Agreement, unless such Lender has notified the Administrative Agent in writing that such
failure is the result of such Lender’s good faith determination that a condition precedent to
funding (specifically identified and including the particular default, if any) has not been
satisfied, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon the Administrative Agent’s receipt of such certification in form and substance
satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy
Event.
“Dollar Equivalent” shall mean, on any date of determination, with respect to any amount in
any Non-US Currency, the equivalent in Dollars of such amount, determined using the Exchange Rate
with respect to such Non-US Currency on such date.
“Dollars” or “$” shall mean lawful money of the United States of America.
“Effective Date” shall mean the first date on or after August 9, 2010, on which the conditions
set forth in Section 4.02 are satisfied.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and
(d) any other Person, other than, in each case, a natural person, the Company or any Affiliate of
the Company.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Company, 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” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan other than events for which the 30 days’
notice period has been waived; (b) a failure by any Plan to meet the minimum funding standards (as
defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each
instance, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section
302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence of any liability under Title IV of ERISA with respect to the termination
of any Plan or the withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates
from any Plan or Multiemployer Plan; (e) the receipt by the Company or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans
or to appoint a trustee to administer any Plan; (f) the receipt by the Company or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA
Affiliate of any notice, that Withdrawal Liability is being imposed 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
9
or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or
Section 305 of ERISA); or (g) the occurrence of a “prohibited transaction” with respect to which
the Company or any of its Subsidiaries is a “disqualified person” (within the meaning of Section
4975 of the Code), or with respect to which the Company or any such Subsidiary could otherwise be
liable.
“Euro” shall mean the lawful currency of the member states of the European Union that have
adopted a single currency in accordance with applicable law or treaty.
“Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.
“Eurocurrency Competitive Borrowing” shall mean a Competitive Borrowing comprised of
Eurocurrency Loans.
“Eurocurrency Competitive Loan” shall mean any Competitive Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of Article II.
“Eurocurrency Loan” shall mean any Eurocurrency Competitive Loan or Eurocurrency Revolving
Loan.
“Eurocurrency Revolving Borrowing” shall mean a Revolving Borrowing comprised of Eurocurrency
Loans.
“Eurocurrency Revolving Loan” shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.
“Event of Default” shall have the meaning assigned to such term in Article VI.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Rate” shall mean, with respect to any Non-US Currency on a particular date, the rate
at which such Non-US Currency may be exchanged into Dollars, as set forth on such date on the
applicable Reuters currency page. In the event that such rate does not appear on any Reuters
currency page, the Exchange Rate with respect to such Non-US Currency 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 Company or, in the absence of such agreement, such
Exchange Rate shall instead be the Administrative Agent’s spot rate of exchange in the London
interbank market at or about 10:00 a.m., London time, on such date for the purchase of Dollars with
such Non-US Currency, for delivery two Business Days later; provided, however, 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 applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
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“Excluded Taxes” means, with respect to any Recipient (including any assignee of or successor
to a Recipient and any Participant) and any other recipient of any payment to be made by or on
account of any obligation of a Borrower under this Agreement or any Loan Documents: (a) income or
franchise Taxes imposed on (or measured by) net income or gain (however denominated) by the United
States of America, or by the jurisdiction under the laws of which such Recipient (including any
assignee of or successor to such Recipient and any Participant or other 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 Taxes imposed by any other jurisdiction, (c) any backup withholding Tax imposed by the
United States of America or any similar Taxes imposed by any other jurisdiction, (d) in the case of
a Non-US Lender (other than an assignee pursuant to a request by a Borrower under Section 2.21(b)),
any US Federal withholding Taxes resulting from any law in effect on the date such Non-US Lender
becomes a party to this Agreement (or designates a new lending office) or is attributable to such
Non-US Lender’s failure to comply with Section 2.20(f) (including as a result of any inaccurate or
incomplete documentation), except to the extent that such Non-US Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from a Borrower with respect to such withholding Taxes pursuant to Section
2.20(a), and (e) any Taxes imposed with respect to the requirements of FATCA.
“Existing Credit Agreement” shall mean the Five-Year Competitive Advance and Revolving Credit
Facility Agreement dated as of November 10, 2005, among the Company, certain lenders and JPMorgan
Chase Bank, N.A., as Administrative Agent.
“FATCA” means Sections 1471 through 1474 of the Code (including any regulations that are
issued thereunder) and any official governmental interpretations thereof.
“Existing Maturity Date” shall have the meaning assigned to such term in Section 2.12(d).
“Facility Fee” shall have the meaning assigned to such term in Section 2.07(a).
“Fair Value”, when used with respect to property, shall mean the fair value as determined in
good faith by the board of directors of the Company.
“Fees” shall mean the Facility Fee, the Administrative Fees, the L/C Participation Fees and
the Issuing Bank Fees.
“Financial Officer” of any Person shall mean the chief financial officer, principal accounting
officer, controller, assistant controller, treasurer, associate or assistant treasurer or director
of treasury services of such Person.
“Fitch” shall mean Fitch Ratings, a wholly owned subsidiary of Fimilac, S.A, or any of its
successors.
11
“Fixed Rate Borrowing” shall mean a Borrowing comprised of Fixed Rate Loans.
“Fixed Rate Loan” shall mean any Competitive Loan bearing interest at a fixed percentage rate
per annum (the “Fixed Rate”) (expressed in the form of a decimal to no more than four decimal
places) specified by the Lender making such Loan in its Competitive Bid.
“GAAP” shall mean United States generally accepted accounting principles, applied on a
consistent basis.
“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.
“Guaranteed Obligations” shall mean the principal of and interest on the Loans made to, and
all other obligations, monetary or otherwise (including fee and reimbursement obligations in
respect of Letters of Credit) of, the Borrowing Subsidiaries under any Loan Document.
“Increasing Lender” shall have the meaning assigned to such term in Section 2.12(e).
“Indebtedness” of any Person shall mean all indebtedness representing money borrowed or the
deferred purchase price of property (other than trade accounts payable) or any capitalized lease
obligation, which in any case is created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds to or invest in, others or otherwise). For the avoidance of
doubt, the term Indebtedness shall not include obligations under any swap or hedging agreements
entered into by any Person.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by a Borrower under this Agreement and (b) Other Taxes.
“Interest Payment Date” shall mean (a) with respect to any Loan, the last day of each Interest
Period applicable thereto, and (b) with respect to a Eurocurrency Loan with an Interest Period of
more than three months’ duration or a Fixed Rate Loan with an Interest Period of more than 90 days’
duration, each day that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months’ duration or 90 days’ duration, as the case may be, been
applicable to such Loan and, in addition, the date of any prepayment of each Loan or conversion of
such Loan to a Loan of a different Type.
“Interest Period” shall mean (a) as to any Eurocurrency Borrowing, the period commencing on
the date of such Borrowing or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the
12
applicable Borrower may elect, (b) as to any ABR Borrowing, the period commencing on the date
of such Borrowing or on the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and ending on the earliest of (i) the next succeeding March 31,
June 30, September 30 or December 31, (ii) the Maturity Date, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.06 or repaid or prepaid
in accordance with Section 2.08 or Section 2.13, and (c) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on the date specified in the Competitive
Bids in which the offers to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next succeeding Business
Day unless, in the case of Eurocurrency Loans 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. Interest shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
“IRS” means the United States Internal Revenue Service.
“Issuing Bank” shall mean any of the Administrative Agent, Citibank N.A. and any other Lender
that may become an Issuing Bank pursuant to Section 2.05(i) or 2.05(j).
“Issuing Bank Agreement” shall mean an agreement in substantially the form of Exhibit E.
“Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.07(c).
“Judgment Currency” shall have the meaning assigned to such term in Section 9.16(b).
“L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.
“L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all L/C
Disbursements that have not yet been reimbursed at such time. The L/C Exposure of any Lender at
any time shall mean its Applicable Share of the aggregate L/C Exposure at such time.
“L/C Participation Fee” shall have the meaning assigned to such term in Section 2.07(c).
“Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.05.
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“Lender Parent” shall mean, with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a subsidiary.
“LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest
Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to
or substitute for such service, providing rate quotations comparable to those currently provided on
such screen, as determined by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO Rate” with
respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
“Lien” shall mean, with respect to any property or asset, any mortgage, deed of trust, lien,
pledge, security interest, charge or other encumbrance on, of, or in such property or asset.
“Loan” shall mean a Competitive Loan or a Revolving Loan, whether made as a Eurocurrency Loan,
an ABR Loan or a Fixed Rate Loan, as permitted hereby.
“Loan Documents” shall mean this Agreement, the Letters of Credit, the Borrowing Subsidiary
Agreements, any Issuing Bank Agreements, and promissory notes, if any, issued pursuant to Section
9.04(i).
“Margin” shall mean, as to any Eurocurrency Competitive Loan, the margin (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal places) to be added
to or subtracted from the LIBO Rate in order to determine the interest rate applicable to such
Loan, as specified in the Competitive Bid relating to such Loan.
“Margin Regulations” shall mean Regulations T, U and X of the Board as from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
“Margin Stock” shall have the meaning given such term under Regulation U of the Board.
“Material Adverse Effect” shall mean an event or condition that has resulted in a material
adverse effect on (a) the business, assets, liabilities, operations or financial condition of the
Company and its Subsidiaries, taken as a whole, (b) the ability of any Borrower to perform any of
its material obligations under any Loan Document or (c) the enforceability of the Lenders’ rights
under any Loan Document.
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“Maturity Date” shall mean the third anniversary of the date hereof, as may be extended
pursuant to Section 2.12(d).
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any of its successors.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Non-US Currency” shall mean any currency other than Dollars that is freely transferable and
convertible into Dollars in the London market and as to which an Exchange Rate and LIBO Rates may
be determined.
“Non-US Currency Loan” shall mean any Competitive Loan denominated in a currency other than
Dollars.
“Non-US Lender” means a Lender that is not a US Person.
“Notice of Competitive Bid Request” shall mean a notification made pursuant to Section 2.03(a)
in the form of Exhibit A-2.
“Other Taxes” means any present or future stamp, court, documentary, intangible, recording,
filing or similar excise or property Taxes (other than Excluded Taxes) that arise from any payment
made under, from the execution, delivery, performance, enforcement or registration of, or from the
registration, receipt or perfection of a security interest under this Agreement or any other Loan
Document.
“Participant” shall have the meaning assigned to such term in Section 9.04(f).
“Participant Register” has the meaning assigned to such term in Section 9.04(f).
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Person” shall mean any natural person, corporation, limited liability company, business
trust, joint venture, association, company, partnership or government, or any agency or political
subdivision thereof.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA
sponsored, maintained or contributed to by the Company or any ERISA Affiliate.
“Preferred Stock” shall mean any capital stock entitled by its terms to a preference (a) as to
dividends or (b) upon a distribution of assets.
“Principal Property” shall mean any single manufacturing or processing facility owned by the
Company or any Restricted Subsidiary having a gross book value in
15
excess of the greater of (i) 5% of Consolidated Net Tangible Assets and (ii) $40,000,000,
except any such facility or portion thereof which the board of directors of the Company by
resolution declares is not of material importance to the total business conducted by the Company
and its Restricted Subsidiaries as an entirety.
“Rating Agencies” shall mean Xxxxx’x, S&P and Fitch.
“Ratings” shall mean the ratings from time to time established by the Rating Agencies for
senior, unsecured, non-credit-enhanced long-term debt of the Company.
“Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) the
Issuing Bank.
“Register” shall have the meaning given such term in Section 9.04(d).
“Regulation D” shall mean Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Reportable Event” shall mean any reportable event as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).
“Required Lenders” shall mean, at any time, Lenders having Commitments representing more than
50% of the Total Commitment or, for purposes of acceleration pursuant to Article VI, Lenders
holding Credit Exposures representing more than 50% of the Aggregate Credit Exposure.
“Responsible Officer” of any Person shall mean any executive officer or Financial Officer of
such Person and any other officer or similar official thereof responsible for the administration of
the obligations of such Person in respect of this Agreement.
“Restricted Subsidiary” shall mean any Subsidiary other than an Unrestricted Subsidiary.
“Revolving Borrowing” shall mean a Borrowing consisting of simultaneous Revolving Loans from
each of the Lenders.
“Revolving Borrowing Request” shall mean a request made pursuant to Section 2.04 in the form
of Exhibit A-5.
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such Lender.
“Revolving Loans” shall mean the revolving loans made pursuant to Section 2.01 and 2.04. Each
Revolving Loan shall be in Dollars and shall be a Eurocurrency Revolving Loan or an ABR Loan.
16
“S&P” shall mean Standard and Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. or any of its successors.
“SEC” shall mean the Securities and Exchange Commission.
“Significant Subsidiary” shall mean, at any time, each Borrower and each subsidiary accounting
for more than 5% of the consolidated revenues of the Company for the period of four fiscal quarters
most recently ended or more than 5% of the consolidated total assets of the Company at the end of
such period; provided that if at any time all Subsidiaries that are not Significant Subsidiaries
shall account for more than 10% of the consolidated revenues of the Company for the period of four
fiscal quarters most recently ended or more than 10% of the consolidated total assets of the
Company at the end of such period, the Company shall designate sufficient Subsidiaries as
“Significant Subsidiaries” to eliminate such excess (or if the Company shall have failed to
designate such Subsidiaries within 10 Business Days, Subsidiaries shall automatically be deemed
designated as Significant Subsidiaries in descending order based on the amounts of their
contributions to consolidated total assets until such excess shall have been eliminated), and the
Subsidiaries so designated or deemed designated shall for all purposes of this Agreement constitute
Significant Subsidiaries.
“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 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.
“subsidiary” shall mean, with respect to any Person (the “parent”), any corporation,
association or other business entity of which securities or other ownership interests representing
more than 50% of the ordinary voting power are, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.
“Subsidiary” shall mean a subsidiary of the Company.
“Taxes” means any present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“Total Commitment” shall mean, at any time, the aggregate amount of Commitments of all the
Lenders, as in effect at such time.
17
“Transactions” shall have the meaning assigned to such term in Section 3.02.
“Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, “Rate” shall include the LIBO Rate, the Alternate Base Rate, the Competitive Bid Rate and
the Fixed Rate.
“Unrestricted Subsidiary” shall mean (a) any Subsidiary which has been designated an
Unrestricted Subsidiary by resolution of the board of directors of the Company (which resolution
has been communicated in a notice delivered by the Company to the Administrative Agent for
distribution to the Lenders) as an Unrestricted Subsidiary, other than any such Subsidiary as to
which such a designation has been rescinded by resolution of said board of directors and not
thereafter, or after some subsequent such rescission, restored by resolution of said board, or
(b) any Subsidiary 50% or less of the Voting Shares of which is owned directly by the Company
and/or one or more Restricted Subsidiaries. A Subsidiary may not be designated as (or otherwise
permitted to become) an Unrestricted Subsidiary unless, immediately after such Subsidiary becomes
an Unrestricted Subsidiary, such Subsidiary would not own any capital stock of, or hold any
indebtedness of, any Restricted Subsidiary. A designation as an Unrestricted Subsidiary may not be
rescinded (or an Unrestricted Subsidiary otherwise permitted to become a Restricted Subsidiary)
unless such Subsidiary (i) is not a party to any lease which it would have been prohibited by this
Agreement from entering into had it been a Restricted Subsidiary at the time it entered into such
lease, unless (x) such Subsidiary had not been a Restricted Subsidiary prior to its entering into
such lease, or (y) the property subject to such lease shall be owned by the Company and/or one or
more Subsidiaries, or (z) such Subsidiary would not be prohibited by this Agreement from entering
into such lease immediately after it becomes a Restricted Subsidiary, and (ii) does not have
outstanding upon any of its property any mortgage, pledge or other lien which it would be
prohibited by this Agreement from creating, suffering to be created, or assuming, immediately after
it becomes a Restricted Subsidiary.
“USA PATRIOT Act” shall have the meaning assigned to such term in Section 3.13.
“US Person” means a “United States person” within the meaning of Section 7701(a)(30) of the
Code.
“US Tax Certificate” has the meaning assigned to such term in Section 2.20(f)(ii)(D)(2).
“Voting Shares” shall mean, as to a particular corporation or other Person, outstanding shares
of stock or other equity interests of any class of such Person entitled to vote in the election of
directors, or otherwise to participate in the direction of the management and policies, of such
Person, excluding shares or interests entitled so to vote or participate only upon the happening of
some contingency.
18
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
“Withholding Agent” means a Borrower and the Administrative Agent.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require.
SECTION 1.03. Accounting Terms; GAAP. 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, however, that for purposes of determining compliance with any covenant
set forth in Article V, such terms shall be construed in accordance with GAAP as in effect on the
date hereof applied on a basis consistent with the application used in preparing the Company’s
audited financial statements referred to in Section 3.05; provided that, if the Company notifies
the Administrative Agent that the Company 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 Company
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.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make Revolving Loans in Dollars to the Borrowers, at any time and from time to time on and after
the date hereof and until the earlier of the Maturity Date and the termination of the Commitment of
such Lender, in an amount that will not result in (a) the sum of the Revolving Credit Exposure and
the L/C Exposure of such Lender exceeding such Lender’s Commitment or (b) the Aggregate Credit
Exposure exceeding the Total Commitment then in effect. Within the foregoing limits, the Borrowers
may borrow, pay or prepay and reborrow Revolving Loans hereunder, on and after the Effective Date
and prior to the Maturity Date, subject to the terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in
19
accordance with their respective Commitments; provided, however, that the failure of any
Lender to make any Revolving Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be responsible for the failure
of any other Lender to make any Loan required to be made by such other Lender). Each Competitive
Loan shall be made in accordance with the procedures set forth in Section 2.03. The Loans
comprising any Borrowing shall be (i) in the case of Competitive Loans, in an aggregate principal
amount which is permitted under Section 2.03, and (ii) in the case of Revolving Loans, in an
aggregate principal amount which is an integral multiple of $5,000,000 and not less than
$20,000,000 (or an aggregate principal amount equal to the remaining balance of the Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of Eurocurrency Competitive Loans
or Fixed Rate Loans, and each Revolving Borrowing shall be comprised entirely of Eurocurrency
Revolving Loans or ABR Loans, as the applicable Borrower may request pursuant to Section 2.03
or 2.04, as applicable. Each Lender may at its option make any Loan by causing any domestic or
foreign branch, agency or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement and such branch, agency or Affiliate shall, to the
extent of any such loans made by it, have all the rights of such Lender hereunder. Borrowings of
more than one Type may be outstanding at the same time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
(c) Subject to Section 2.06 and, in the case of any Borrowing denominated in a Non-US
Currency, to any alternative procedures that the applicable Borrower, the applicable Lenders and
the Administrative Agent may agree upon, each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 12:00 noon, New York City time, and the
Administrative Agent shall by 2:00 p.m., New York City time, credit the amounts so received to the
account or accounts specified from time to time in one or more notices delivered by the Company to
the Administrative Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, forthwith return the amounts so received to the
respective Lenders. Competitive Loans shall be made by the Lender or Lenders whose Competitive
Bids therefor are accepted pursuant to Section 2.03 in the amounts so accepted. Revolving Loans
shall be made by the Lenders pro rata in accordance with their Applicable Shares. Unless the
Administrative Agent shall have received notice from a Lender prior to the date (or, in the case of
ABR Borrowings, on the date) of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Administrative Agent may, in reliance upon
such assumption, make available to the applicable Borrower on such date a corresponding amount in
the required currency. If and to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and such Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount
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together with interest thereon in such currency, for each day from the date such amount is
made available to such Borrower until the date such amount is repaid to the Administrative Agent at
(i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight funds. If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount shall constitute such Lender’s Loan as part of such
Borrowing for purposes of this Agreement.
(d) If any Issuing Bank shall not have received from a Borrower the payment required to be
made by Section 2.05(e) within the time period set forth in Section 2.05(e), such Issuing Bank will
promptly notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Lender of such L/C Disbursement and its Applicable Share thereof. Each Lender
shall pay by wire transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Lender shall have received such
notice later than 12:00 (noon), New York City time, on any day, not later than 10:00 a.m., New York
City time, on the immediately following Business Day), an amount equal to such Lender’s Applicable
Share of such L/C Disbursement plus any interim interest accrued thereon pursuant to Section
2.05(h) (it being understood that such amount shall be deemed to constitute an ABR Loan of such
Lender and shall bear interest as provided herein), and the Administrative Agent will promptly pay
to the Issuing Bank any amounts so received by it from the Lenders. The Administrative Agent will
promptly pay to the Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.05(e) prior to the time that any Lender makes any payment pursuant to this paragraph; any
such amounts received by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Lenders that shall have made such payments and to the Issuing Bank, as
their interests may appear. If any Lender shall not have made its Applicable Share of such L/C
Disbursement available to the Administrative Agent as provided above, such Lender and the Borrowers
severally agree to pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but excluding the date such
amount is paid, to the Administrative Agent at (i) in the case of the Borrowers, a rate per annum
equal to the interest rate applicable to Loans pursuant to Section 2.09, and (ii) in the case of
such Lender, for the first such day, the Federal Funds Effective Rate, and for each day thereafter,
the Alternate Base Rate.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request Competitive Bids, a
Borrower shall hand deliver or telecopy to the Administrative Agent a duly completed Competitive
Bid Request in the form of Exhibit A-1 hereto, to be received by the Administrative Agent (i) in
the case of a Eurocurrency Competitive Loan, not later than 10:00 a.m., New York City time, (A)
four Business Days before a proposed Competitive Borrowing in the case of a Competitive Borrowing
denominated in Dollars and (B) five Business Days before a proposed Competitive Borrowing in the
case of a Competitive Borrowing denominated in a Non-US Currency and (ii) in the case of a Fixed
Rate Borrowing, not later than 10:00 a.m., New York City time, (A) one Business Day before a
proposed Competitive Borrowing in the case of a Competitive Borrowing denominated in Dollars and
(B) two Business Days before a proposed Competitive
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Borrowing in the case of a Competitive Borrowing denominated in a Non-US Currency. No ABR
Loan shall be requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent’s sole discretion, and the Administrative Agent shall promptly notify the
applicable Borrower of such rejection by telecopy. Each Competitive Bid Request shall refer to
this Agreement and specify (A) whether the Borrowing then being requested is to be a Eurocurrency
Borrowing or a Fixed Rate Borrowing, (B) the date of such Borrowing (which shall be a Business
Day), (C) the currency of the requested Borrowing (which shall be Dollars or a Non-US Currency),
(D) the aggregate principal amount of the requested Borrowing (which shall be an integral multiple
of 1,000,000 units of the applicable currency with a Dollar Equivalent on the date of the
applicable Competitive Bid Request of at least $10,000,000), and (E) the Interest Period with
respect thereto (which may not end after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative Agent shall telecopy
to the Lenders a Notice of Competitive Bid Request inviting the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion, make one or more Competitive Bids
to the applicable Borrower responsive to such Borrower’s Competitive Bid Request. Each Competitive
Bid by a Lender must be received by the Administrative Agent by telecopy, in the form of
Exhibit A-3 hereto, (i) in the case of a Eurocurrency Competitive Loan, not later than 9:30 a.m.,
New York City time, three Business Days before a proposed Competitive Borrowing and (ii) in the
case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. A Lender may submit multiple bids to the Administrative Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3 may be rejected by
the Administrative Agent, and the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and specify (x) the principal amount (which shall be an integral multiple of
1,000,000 units of the applicable currency and which may equal the entire principal amount of the
Competitive Borrowing requested) of the Competitive Loan or Loans that the Lender is willing to
make, (y) the Competitive Bid Rate or Rates at which the Lender is prepared to make the Competitive
Loan or Loans and (z) the Interest Period and the last day thereof. If any Lender invited to bid
shall elect not to make a Competitive Bid, such Lender shall so notify the Administrative Agent by
telecopy (I) in the case of Eurocurrency Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing, and (II) in the case of Fixed
Rate Loans, not later than 9:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; provided, however, that failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Loan as part of such Competitive Borrowing. A
Competitive Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall as promptly as practicable notify the applicable Borrower,
by telecopy, of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of
each Competitive Loan in respect of which a Competitive Bid was made and the identity of the Lender
that made each bid. The
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Administrative Agent shall send a copy of all Competitive Bids to the applicable Borrower for
its records as soon as practicable after completion of the bidding process set forth in this
Section 2.03.
(d) The applicable Borrower may in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Competitive Bid referred to in paragraph (c)
above. The applicable Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has
decided to accept or reject any or all of the bids referred to in paragraph (c) above not more than
one hour after it shall have been notified of such bids by the Administrative Agent pursuant to
such paragraph (c); provided, however, that (i) the failure of the applicable Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above,
(ii) the applicable Borrower shall not accept a bid made at a particular Competitive Bid Rate if it
has decided to reject a bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the applicable Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (iv) if the applicable Borrower shall accept a bid or
bids made at a particular Competitive Bid Rate but the amount of such bid or bids shall cause the
total amount of bids to be accepted to exceed the amount specified in the Competitive Bid Request,
then the applicable Borrower shall accept a portion of such bid or bids in an amount equal to the
amount specified in the Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which acceptance, in the case of multiple
bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each
such bid at such Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no bid shall
be accepted for a Competitive Loan unless such Competitive Loan is in an amount that is an integral
multiple of 1,000,000 units of the applicable currency, and in calculating the pro rata allocation
of acceptances of portions of multiple bids at a particular Competitive Bid Rate pursuant to
clause (iv) above, the amounts shall be rounded to integral multiples of 1,000,000 units of the
applicable currency in a manner which shall be in the discretion of the applicable Borrower. A
notice given pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender whether or not its
Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by
telecopy, and each successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid has been accepted.
(f) No Competitive Borrowing shall be requested or made hereunder if after giving effect
thereto (i) the Aggregate Credit Exposure would exceed the Total Commitment or (ii) in the event
the Maturity Date shall have been extended as provided in Section 2.12(d), the sum of the LC
Exposures attributable to Letters of Credit expiring after any Existing Maturity Date and the
Competitive Loan Exposures attributable to Competitive Loans maturing after such Existing Maturity
Date would exceed the aggregate Commitments that have been extended to a date after the expiration
date of the last of such Letters of Credit and the maturity of the last of such Competitive Loans.
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(g) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such bid directly to the applicable Borrower one quarter of an hour earlier
than the latest time at which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
SECTION 2.04. Revolving Borrowing Procedure. In order to request a Revolving Borrowing, a
Borrower shall hand deliver or telecopy to the Administrative Agent a duly completed Revolving
Borrowing Request in the form of Exhibit A-5 (i) in the case of a Eurocurrency Revolving Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before such Borrowing, and
(ii) in the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the day of
such Borrowing. No Fixed Rate Loan shall be requested or made pursuant to a Revolving Borrowing
Request. Such notice shall be irrevocable and shall in each case specify (A) whether the Borrowing
then being requested is to be a Eurocurrency Revolving Borrowing or an ABR Borrowing; (B) the date
of such Revolving Borrowing (which shall be a Business Day) and the amount thereof; and (C) if such
Borrowing is to be a Eurocurrency Revolving Borrowing, the Interest Period with respect thereto.
If no election as to the Type of Revolving Borrowing is specified in any such notice, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurocurrency Revolving Borrowing is specified in any such notice, then the applicable Borrower
shall be deemed to have selected an Interest Period of one month’s duration. Notwithstanding any
other provision of this Agreement to the contrary, no Revolving Borrowing shall be requested if the
Interest Period with respect thereto would end after the Maturity Date in effect for any Lender.
The Administrative Agent shall promptly advise each of the Lenders of any notice given pursuant to
this Section 2.04 and of each Lender’s portion of the requested Borrowing.
SECTION 2.05. Letters of Credit. (a) General. The Borrowers may request the issuance of
Letters of Credit, in a form reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, appropriately completed, for the accounts of the Borrowers, at any time and from time
to time while the Commitments remain in effect. All Letters of Credit shall be denominated in
Dollars. This Section shall not be construed to impose an obligation upon any Issuing Bank to
issue any Letter of Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to
request the issuance of a Letter of Credit (or to amend, renew or extend an existing Letter of
Credit), the applicable Borrower shall hand deliver or telecopy to the applicable Issuing Bank and
the Administrative Agent (reasonably in advance of, but not later than 10:00 a.m., New York City
time, five Business Days before, the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount
of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. Following receipt of such
notice and prior to the issuance of the requested Letter of Credit or the applicable amendment,
renewal or extension, the Administrative Agent shall
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notify the Borrowers, each Lender and the applicable Issuing Bank of the amount of the
Aggregate Credit Exposure after giving effect to (i) the issuance, amendment, renewal or extension
of such Letter of Credit, (ii) the issuance or expiration of any other Letter of Credit that is to
be issued or will expire prior to the requested date of issuance of such Letter of Credit and (iii)
the borrowing or repayment of any Loans that (based upon notices delivered to the Administrative
Agent by the Borrowers) are to be borrowed or repaid prior to the requested date of issuance of
such 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 Borrowers shall be
deemed to represent and warrant that, (i) after giving effect to such issuance, amendment, renewal
or extension (A) the L/C Exposure shall not exceed $350,000,000 and (B) the Aggregate Credit
Exposure shall not exceed the Total Commitment, (ii) in the case of a Letter of Credit that will
expire later than the first anniversary of such issuance, amendment, renewal or extension, the
applicable Borrower, the applicable Issuing Bank and the Required Lenders shall have reached
agreement on the fees to be applicable thereto as contemplated by the last sentence of Section
2.07(c) and (iii) in the event the Maturity Date shall have been extended as provided in Section
2.12(d), the sum of the LC Exposures attributable to Letters of Credit expiring after any Existing
Maturity Date (as defined in Section 2.12(d)) and the Competitive Loan Exposures attributable to
Competitive Loans maturing after such Existing Maturity Date shall not exceed the aggregate
Commitments that have been extended to a date after the expiration date of the last of such Letters
of Credit and the maturity of the last of such Competitive Loans.
(c) Expiration Date. Each Letter of Credit shall expire at the close of business on the
earlier of (x) the date one year after the date of the issuance of such Letter of Credit (or, in
the case of any renewal or extension thereof, one year after such renewal or extension) or such
longer period as may be agreed to between the applicable Borrower and the Issuing Bank and (y) the
date that is five Business Days prior to the Maturity Date, unless such Letter of Credit expires by
its terms on an earlier date; provided that any Letter of Credit with a one-year tenor may provide
for renewal thereof under procedures reasonably satisfactory to the applicable Issuing Bank for
additional one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above).
(d) Participations. By the issuance of a Letter of Credit and without any further action on
the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants
to each Lender, and each such Lender hereby acquires from the applicable Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable Share from time to time of
the aggregate amount available to be drawn under such Letter of Credit, effective upon the issuance
of 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
applicable Issuing Bank, such Lender’s Applicable Share from time to time of each L/C Disbursement
made by such Issuing Bank and not reimbursed by the applicable Borrower (or, if applicable, another
party pursuant to its obligations under any other Loan Document) by the time provided in Section
2.02(d). 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 the occurrence and continuance of a
Default or an
25
Event of Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement in respect of a Letter
of Credit, the applicable Borrower shall pay to the Administrative Agent such L/C Disbursement not
later than (i) if such Borrower shall have received notice of such L/C Disbursement prior to 10:00
a.m., New York City time, on any Business Day, 2:00 p.m., New York City time, on such Business Day
or (ii) otherwise, 12:00 noon, New York City time, on the Business Day next following the day on
which the Borrower shall have received notice from such Issuing Bank that payment of such draft
will be made.
(f) Obligations Absolute. The Borrowers’ obligations to reimburse L/C Disbursements as
provided in paragraph (e) above 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 any Loan
Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that the Borrowers,
any other party guaranteeing, or otherwise obligated with, the Borrowers, any Subsidiary or
other Affiliate thereof or any other Person may at any time have against the beneficiary
under any Letter of Credit, any Issuing Bank, the Administrative Agent or any Lender or any
other Person, whether in connection with this Agreement, any other Loan Document or any
other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(v) payment by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such
Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of any Issuing Bank, the
Lenders, the Administrative Agent or any other Person or 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 the Borrowers’
obligations hereunder.
Without limiting the generality of the foregoing, it is expressly understood and agreed that
the absolute and unconditional obligation of the Borrowers hereunder to reimburse L/C Disbursements
will not be excused by the gross negligence or wilful misconduct of any Issuing Bank, the
Administrative Agent or any Lender. However, the
26
foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrowers to
the extent of any direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the
Borrowers that are caused by such Issuing Bank’s gross negligence or wilful misconduct in
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that each Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of Credit (i) an Issuing
Bank’s exclusive reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft presented under
such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such Letter of Credit
proves to be insufficient in any respect, if such document on its face appears to be in order, and
whether or not any other statement or any other document presented pursuant to such Letter of
Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in
any respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents
presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to
constitute wilful misconduct or gross negligence of an Issuing Bank.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a Letter
of Credit. Such Issuing Bank shall as promptly as possible give telephonic notification, confirmed
by telecopy, to the Administrative Agent and the applicable Borrower of such demand for payment and
whether such Issuing Bank has made or will make an L/C Disbursement thereunder; provided that any
failure to give or delay in giving such notice shall not relieve such Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Lender notice thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement in respect of a
Letter of Credit, then, unless the applicable Borrower shall reimburse such L/C Disbursement in
full on such date, the unpaid amount thereof shall bear interest for the account of such Issuing
Bank, for each day from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment or the date on which interest shall commence to accrue on Loans made
to reimburse such L/C Disbursements provided in Section 2.02(d).
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may resign at any time by
giving 180 days’ prior written notice to the Administrative Agent, the Lenders and the Company, and
may be removed at any time by the Company by notice to the Issuing Bank, the Administrative Agent
and the Lenders. Subject to the next succeeding paragraph, upon the acceptance of any appointment
as an Issuing Bank hereunder by a successor Issuing Bank, such successor shall succeed to and
become vested with all the interests, rights and obligations of the retiring Issuing Bank and the
retiring Issuing Bank shall be discharged from its obligations to issue additional Letters of
Credit hereunder. At the time such removal or resignation shall become effective, the
27
Borrowers shall pay all accrued and unpaid fees pursuant to Section 2.07(c)(ii). The
acceptance of any appointment as an Issuing Bank hereunder by a successor Lender shall be evidenced
by an agreement entered into by such successor, in a form satisfactory to the Borrowers and the
Administrative Agent, and, from and after the effective date of such agreement, (i) such successor
Lender shall have all the rights and obligations of the previous Issuing Bank under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan Documents 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 resignation
or removal of an Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under this Agreement and
the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation
or removal, but shall not be required to issue additional Letters of Credit.
(j) Additional Issuing Banks. The Borrowers may, at any time and from time to time with the
consent of the Administrative Agent (which consent shall not be unreasonably withheld) and such
Lender, designate one or more additional Lenders to act as an issuing bank under the terms of this
Agreement. Any Lender designated as an issuing bank pursuant to this paragraph shall, upon
entering into an Issuing Bank Agreement with the Company, be deemed to be an “Issuing Bank” (in
addition to being a Lender) hereunder.
(k) Issuing Bank Reports. Unless otherwise agreed by the Administrative Agent, each Issuing
Bank shall report in writing to the Administrative Agent (i) on or prior to each Business Day on
which such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the aggregate face amount of the Letters of Credit
issued, amended, renewed or extended by it and outstanding after giving effect to such issuance,
amendment, renewal or extension (and whether the amount thereof shall have changed), it being
understood that such Issuing Bank shall not effect any issuance, renewal, extension or amendment
resulting in an increase in the aggregate amount of the Letters of Credit issued by it without
first obtaining written confirmation from the Administrative Agent that such increase is then
permitted under this Agreement, (ii) on each Business Day on which such Issuing Bank makes any L/C
Disbursement, the date and amount of such L/C Disbursement, (iii) on any Business Day on which a
Borrower fails to reimburse an L/C Disbursement required to be reimbursed to such Issuing Bank on
such day, the date of such failure and the amount of such L/C Disbursement and (iv) on any other
Business Day, such other information as the Administrative Agent shall reasonably request as to the
Letters of Credit issued by such Issuing Bank.
SECTION 2.06. Conversion and Continuation of Revolving Loans. Each Borrower shall have the
right at any time upon prior irrevocable notice to the Administrative Agent (i) not later than
10:30 a.m., New York City time, on the day of the conversion, to convert all or any part of any
Eurocurrency Revolving Loan into an ABR Revolving Loan, and (ii) not later than 10:30 a.m.,
New York City time, three Business Days prior to conversion or continuation, to convert any ABR
Revolving Loan into a Eurocurrency Revolving Loan or to continue any Eurocurrency Revolving Loan as
a
28
Eurocurrency Revolving Loan for an additional Interest Period, subject in each case to the
following:
(a) if less than all the outstanding principal amount of any Revolving Borrowing shall be
converted or continued, the aggregate principal amount of the Revolving Borrowing converted or
continued shall be an integral multiple of $5,000,000 and not less than $20,000,000;
(b) accrued interest on a Revolving Borrowing (or portion thereof) being converted shall be
paid by the Borrower at the time of conversion;
(c) if any Eurocurrency Revolving Loan is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the
Lenders pursuant to Section 2.16;
(d) any portion of a Revolving Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurocurrency Revolving Loan;
(e) any portion of a Eurocurrency Revolving Loan which cannot be continued as a Eurocurrency
Revolving Loan by reason of clause (d) above shall be automatically converted at the end of the
Interest Period in effect for such Eurocurrency Revolving Loan into an ABR Borrowing;
(f) no Interest Period may be selected for any Eurocurrency Revolving Borrowing that would end
later than the Maturity Date in effect for any Lender; and
(g) at any time when there shall have occurred and be continuing any Default or Event of
Default, if the Administrative Agent or the Required Lenders shall so notify the Company, no
Revolving Loan may be converted into or continued as a Eurocurrency Revolving Loan.
Each notice pursuant to this Section shall be irrevocable and shall refer to this Agreement
and specify (i) the identity and amount of the Revolving Borrowing to be converted or continued,
(ii) whether such Revolving Borrowing is to be converted to or continued as a Eurocurrency
Revolving Borrowing or an ABR Revolving Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such Revolving Borrowing is to
be converted to or continued as a Eurocurrency Revolving Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with respect to any
conversion to or continuation as a Eurocurrency Revolving Borrowing, the Borrower shall be deemed
to have selected an Interest Period of one month’s duration. If no notice shall have been given in
accordance with this Section 2.06 to convert or continue any Revolving Borrowing, such Revolving
Borrowing shall, at the end of the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be continued into a new Interest Period as an ABR Revolving
Borrowing.
SECTION 2.07. Fees. (a) The Company agrees to pay to each Lender, through the Administrative
Agent, on each March 31, June 30, September 30 and
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December 31 (with the first payment being due on September 30, 2010) and on each date on which
the Commitment of such Lender shall be terminated as provided herein (and any subsequent date on
which such Lender shall cease to have any Revolving Credit Exposure or L/C Exposure), a facility
fee (a “Facility Fee”), at a rate per annum equal to the Applicable Percentage from time to time in
effect, on the amount of the Commitment of such Lender, whether used or unused, during the
preceding quarter (or other period commencing on the date hereof, or ending with the Maturity Date
or any date on which the Commitment of such Lender shall be terminated) or, if such Lender
continues to have any Revolving Credit Exposure or L/C Exposure after its Commitment terminates, on
the daily amount of such Lender’s Revolving Credit Exposure and L/C Exposure. All Facility Fees
shall be computed on the basis of the actual number of days elapsed in a year of 365 or 366 days,
as the case may be. The Facility Fee due to each Lender shall commence to accrue on the date
hereof, and shall cease to accrue on the earlier of the Maturity Date and the termination of the
Commitment of such Lender as provided herein.
(b) The Company agrees to pay the Administrative Agent, for its own account, the
administrative and other fees separately agreed to by the Company and the Administrative Agent (the
“Administrative Fees”).
(c) The Company agrees to pay (i) to each Lender, through the Administrative Agent, on each
March 31, June 30, September 30 and December 31 and on the date on which the Commitment of such
Lender shall be terminated as provided herein, a fee (an “L/C Participation Fee”) calculated on
such Lender’s average daily L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements of such Lender) during the preceding quarter (or shorter period
commencing with the Effective Date or ending with the later of (A) the Maturity Date or the date on
which the Commitment of such Lender shall be terminated and (B) the date on which such Lender shall
cease to have any L/C Exposure) at a rate equal to the Applicable Percentage from time to time, and
(ii) to each Issuing Bank with respect to each Letter of Credit issued by it the fees agreed upon
by the Company and such Issuing Bank in the applicable Issuing Bank Agreement plus, in connection
with the issuance, amendment or transfer of any Letter of Credit or any L/C Disbursement, such
Issuing Bank’s customary documentary and processing charges (collectively, the “Issuing Bank
Fees”). All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days. Notwithstanding the foregoing, in the case of
any Letter of Credit that will expire later than the first anniversary of the issuance, amendment,
renewal or extension thereof, the L/C Participation Fee and Issuing Bank Fees shall be increased by
an amount to be agreed upon prior to such issuance, amendment, renewal or extension by the
applicable Borrower, the applicable Issuing Bank and the Required Lenders.
(d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders except that the
Issuing Bank Fees shall be paid directly to the applicable Issuing Banks and the Administrative
Fees shall be paid pursuant to paragraph (b) above. Once paid, none of the Fees shall be
refundable under any circumstances in the absence of demonstrable error.
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SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby agrees that the
outstanding principal balance of each Revolving Loan shall be payable on the Maturity Date and that
the outstanding principal balance of each Competitive Loan shall be payable on the last day of the
Interest Period applicable thereto. Each Loan shall bear interest on the outstanding principal
balance thereof as set forth in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness to such Lender resulting from each Loan made by such Lender from time
to time, including the amounts of principal and interest payable and paid to such Lender from time
to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the currency of each Loan, the Borrower of each Loan, the Type of each
Loan made and the Interest Period 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) the amount of any sum received by the Administrative Agent hereunder from each Borrower and
each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section shall, to the extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrowers to repay the Loans in accordance with their terms.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions of Section 2.10, the Loans
comprising each Eurocurrency Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i) in the case of
each Eurocurrency Revolving Loan, the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Percentage from time to time in effect, and (ii) in the case of each
Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Margin offered by the Lender making such Loan and accepted by the applicable Borrower
pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.10, the Loans comprising each ABR Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or
366 days, as the case may be, for periods during which the Alternate Base Rate is determined by
reference to the Prime Rate and 360 days for other periods) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage.
(c) Subject to the provisions of Section 2.10, each Fixed Rate Loan shall bear interest at a
rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days)
equal to the fixed rate of interest offered by the Lender making such Loan and accepted by the
applicable Borrower pursuant to Section 2.03.
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(d) Interest on each Loan shall be payable on each Interest Payment Date applicable to such
Loan except as otherwise provided in this Agreement. The applicable Adjusted LIBO Rate, LIBO Rate
or Alternate Base Rate for each Interest Period or day within an Interest Period, as the case may
be, shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.10. Default Interest. If a Borrower shall default in the payment of the principal
of or interest on any Loan or any other amount becoming due hereunder, whether by scheduled
maturity, notice of prepayment, acceleration or otherwise, such Borrower shall on demand from time
to time from the Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum (computed as provided in Section 2.09(b)) equal to the Alternate Base
Rate plus 2%.
SECTION 2.11. Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowing,
the Administrative Agent shall have determined (i) that deposits in the currency and principal
amounts of the Eurocurrency Loans comprising such Borrowing are not generally available in the
London market or (ii) that reasonable means do not exist for ascertaining the Adjusted LIBO Rate,
the Administrative Agent shall, as soon as practicable thereafter, give telecopy notice of such
determination to the Borrowers and the Lenders. In the event of any such determination under
clause (i) or (ii) above, until the Administrative Agent shall have advised the Company and the
Lenders that the circumstances giving rise to such notice no longer exist, (x) any request by a
Borrower for a Eurocurrency Competitive Borrowing pursuant to Section 2.03 shall be of no force and
effect and shall be denied by the Administrative Agent, and (y) any request by a Borrower for a
Eurocurrency Revolving Borrowing pursuant to Section 2.04 shall be deemed to be a request for an
ABR Borrowing. In the event the Required Lenders notify the Administrative Agent that the rates at
which Dollar deposits are being offered will not adequately and fairly reflect the cost to such
Lenders of making or maintaining Eurocurrency Loans in Dollars during such Interest Period, the
Administrative Agent shall notify the applicable Borrower of such notice and until the Required
Lenders shall have advised the Administrative Agent that the circumstances giving rise to such
notice no longer exist, any request by such Borrower for a Eurocurrency Revolving Borrowing shall
be deemed a request for an ABR Borrowing. Each determination by the Administrative Agent hereunder
shall be made in good faith and shall be conclusive absent manifest error.
SECTION 2.12. Termination, Reduction, Extension and Increase of Commitments. (a) The
Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days’ prior irrevocable telecopy notice to the Administrative
Agent, the Company may at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Total Commitment; provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $10,000,000 and (ii) no such termination or
reduction shall be made (A) which would reduce the Total Commitment to an amount less than the
Aggregate
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Credit Exposure or (B) which would reduce any Lender’s Commitment to an amount that is less
than the sum of such Lender’s Revolving Credit Exposure and L/C Exposure.
(c) Each reduction in the Total Commitment hereunder shall be made ratably among the Lenders
in accordance with their respective Commitments. The Borrowers shall pay to the Administrative
Agent for the account of the Lenders, on the date of each reduction or termination of the Total
Commitment, the Facility Fees on the amount of the Commitments terminated accrued through the date
of such termination or reduction.
(d) The Company may, by written notice to the Administrative Agent (which shall promptly
deliver a copy to each of the Lenders) not less than 30 days and not more than 90 days prior to any
anniversary of the date hereof, request that the Lenders extend the Maturity Date and the
Commitments for an additional period of one year. Each Lender shall, by notice to the Company and
the Administrative Agent given not later than the 20th day after the date of the Administrative
Agent’s receipt of the Company’s extension request, advise the Company whether or not it agrees to
the requested extension (each Lender agreeing to a requested extension being called a “Consenting
Lender” and each Lender declining to agree to a requested extension being called a “Declining
Lender”). Any Lender that has not so advised the Company and the Administrative Agent by such day
shall be deemed to have declined to agree to such extension and shall be a Declining Lender. If
Lenders constituting the Required Lenders shall have agreed to an extension request, then the
Maturity Date shall, as to the Consenting Lenders, be extended to the first anniversary of the
Maturity Date theretofore in effect. The decision to agree or withhold agreement to any Maturity
Date extension shall be at the sole discretion of each Lender. The Commitment of any Declining
Lender shall terminate on the Maturity Date in effect prior to giving effect to any such extension
(such Maturity Date being called the “Existing Maturity Date”). The principal amount of any
outstanding Loans made by Declining Lenders, together with any accrued interest thereon and any
accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder,
shall be due and payable on the Existing Maturity Date, and on the Existing Maturity Date, the
Borrowers shall also make such other prepayments of their Loans as shall be required in order that,
after giving effect to the termination of the Commitments of, and all payments to, Declining
Lenders pursuant to this sentence, the Aggregate Credit Exposures shall not exceed the Total
Commitment. Notwithstanding the foregoing provisions of this paragraph, the Company shall have the
right, pursuant to Section 9.04, at any time prior to the Existing Maturity Date, to replace a
Declining Lender with a Lender or other financial institution that will agree to a request for the
extension of the Maturity Date, and any such replacement Lender shall for all purposes constitute a
Consenting Lender. Notwithstanding the foregoing, no extension of the Maturity Date pursuant to
this paragraph shall become effective unless (i) the Administrative Agent shall have received
documents consistent with those delivered with respect to the Company and the Borrowers under
Section 4.02(a) and (b) and Section 4.03(a), giving effect to such extension and (ii) on the
anniversary of the date hereof that immediately follows the date on which the Company delivers the
applicable request for extension of the Maturity Date, the conditions set forth in paragraphs (b)
and (c) of Section 4.01 shall be satisfied (with all references in such paragraphs to a Borrowing
being deemed to be references to such extension and without giving effect to the
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parenthetical in Section 4.01(b)) and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer of the Company.
(e) The Company may, by written notice to the Administrative Agent, executed by the Company
and one or more financial institutions (any such financial institution referred to in this Section
being called an “Increasing Lender”), which may include any Lender, cause Commitments to be
extended by the Increasing Lenders (or cause the Commitments of the Increasing Lenders to be
increased, as the case may be) in an amount for each Increasing Lender set forth in such notice,
provided, however, that (a) the aggregate amount of all new Commitments and increases in existing
Commitments pursuant to this paragraph during the term of this Agreement shall in no event exceed
$500,000,000, (b) each Increasing Lender, if not already a Lender hereunder, (x) shall have a
Commitment, immediately after the effectiveness of such increase, of at least $25,000,000, (y)
shall be subject to the approval of the Administrative Agent and each Issuing Bank (which approval
shall not be unreasonably withheld) and (z) shall become a party to this Agreement by completing
and delivering to the Administrative Agent a duly executed accession agreement in a form
satisfactory to the Administrative Agent and the Company (an “Accession Agreement”) and (c) the
decision of any existing Lender to become an Increasing Lender shall be in the sole discretion of
such Lender, and no existing Lender shall be required to increase its Commitment hereunder. New
Commitments and increases in Commitments pursuant to this Section shall become effective on the
date specified in the applicable notices delivered pursuant to this Section. Upon the
effectiveness of any Accession Agreement to which any Increasing Lender is a party, (i) such
Increasing Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled
to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations
of a Lender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the
Commitment of such Increasing Lender as provided in such Accession Agreement. Upon the
effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a
party hereto, Schedule 2.01 shall be deemed to have been amended to reflect the increased
Commitment of such Lender. Notwithstanding the foregoing, no increase in the aggregate Commitments
(or in the Commitment of any Lender) shall become effective under this Section unless, on the date
of such increase, (i) the Administrative Agent shall have received documents consistent with those
delivered with respect to the Company and the Borrowers under Section 4.02(a) and (b) and Section
4.03(a), giving effect to such increase and (ii) the conditions set forth in paragraphs (b) and (c)
of Section 4.01 shall be satisfied (with all references in such paragraphs to a Borrowing being
deemed to be references to such increase and without giving effect to the parenthetical in Section
4.01(b)) and the Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Company. Following any extension of a new
Commitment or increase of a Lender’s Commitment pursuant to this paragraph, any Revolving Loans
outstanding prior to the effectiveness of such increase or extension shall continue outstanding
until the ends of the respective Interests Periods applicable thereto, and shall then be repaid or
refinanced with new Revolving Loans made pursuant to Section 2.01.
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SECTION 2.13. Prepayment. (a) Each Borrower shall have the right at any time and from time
to time to prepay any Revolving Borrowing, in whole or in part, upon giving telecopy notice (or
telephone notice promptly confirmed by telecopy) to the Administrative Agent: (i) before
10:00 a.m., New York City time, three Business Days prior to prepayment, in the case of
Eurocurrency Revolving Loans, and (ii) before 10:00 a.m., New York City time, one Business Day
prior to prepayment, in the case of ABR Revolving Loans; provided, however, that in the case of any
Revolving Borrowing, each partial prepayment shall be in an amount which is an integral multiple of
$10,000,000 and not less than $50,000,000.
(b) On the date of any termination or reduction of the Commitments pursuant to Section 2.12,
the Borrowers shall pay or prepay so much of the Revolving Borrowings as shall be necessary in
order that the Aggregate Credit Exposure will not exceed the Total Commitment after giving effect
to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
applicable Borrower to prepay such Borrowing (or portion thereof) by the amount stated therein on
the date stated therein. All prepayments under this Section shall be subject to Section 2.16 but
otherwise without premium or penalty. All prepayments under this Section shall be accompanied by
accrued interest on the principal amount being prepaid to the date of payment.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision herein, if after the date of this Agreement any
change in applicable law or regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof (whether or not
having the force of law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender or any Issuing Bank, or shall result in the imposition on any
Lender or the London interbank market of any other condition affecting this Agreement, such
Lender’s Commitment or any Eurocurrency Loan or Fixed Rate Loan made by such Lender or any Letter
of Credit, 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 Fixed Rate Loan or of issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise) by an amount deemed by such
Lender or such Issuing Bank to be material, then such additional amount or amounts as will
compensate such Lender, or such Issuing Bank, as the case may be, for such additional costs or
reduction will be paid by the Borrowers to such Lender, or such Issuing Bank, as the case may be,
upon demand. Notwithstanding the foregoing, no Lender or Issuing Bank shall be entitled to request
compensation under this paragraph with respect to any Competitive Loan or Letter of Credit if the
change giving rise to such request was applicable to such Lender or Issuing Bank at the time of
submission of the Competitive Bid or L/C Competitive Bid pursuant to which such Competitive Loan or
Letter of Credit was made or issued.
(b) If any Lender or any Issuing Bank shall have determined that the adoption after the date
hereof of any applicable law, rule, regulation or guideline
35
regarding capital adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Lender or
Issuing Bank (or any lending office of such Lender or such Issuing Bank) or any Lender’s or Issuing
Bank’s holding company with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the
capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this
Agreement, such Lender’s Commitment or the Loans made or Letters of Credit issued by such Lender or
Issuing Bank pursuant hereto to a level below that which such Lender or Issuing Bank or such
Lender’s or Issuing Bank’s holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of
such Lender’s or Issuing Bank’s holding company with respect to capital adequacy) by an amount
deemed by such Lender or Issuing Bank to be material, then from time to time such additional amount
or amounts as will compensate such Lender or Issuing Bank for such reduction will be paid by the
Borrowers to such Lender or Issuing Bank.
(c) A certificate of any Lender or Issuing Bank setting forth such amount or amounts as shall
be necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) above, as the case may be, shall be delivered to the Company and
shall be conclusive absent manifest error. The Borrowers shall pay such Lender or Issuing Bank the
amount shown as due on any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure on the part of any Lender or Issuing Bank to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on capital with respect
to any period shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand
compensation with respect to such period or any other period; provided, however, that no Lender or
Issuing Bank shall be entitled to compensation under this Section 2.14 for any costs incurred or
reductions suffered with respect to any date unless it shall have notified the Company that it will
demand compensation for such costs or reductions under paragraph (c) above not more than 90 days
after the later of (i) such date and (ii) the date on which it shall have become aware of such
costs or reductions. The protection of this Section shall be available to each Lender and Issuing
Bank regardless of any possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision herein, if any
change in any law or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful for any Lender or
any of its Affiliates to make or maintain any Eurocurrency Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurocurrency Loan, then, by written notice
to the Company and to the Administrative Agent, such Lender may:
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(i) declare that Eurocurrency Loans will not thereafter be made by such Lender
hereunder, whereupon such Lender shall not submit a Competitive Bid in response to a
request for a Eurocurrency Competitive Borrowing, and any request for a Eurocurrency
Revolving Borrowing shall, as to such Lender only, be deemed a request for an ABR Loan,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurocurrency Loans denominated in Dollars made by it
be converted to ABR Loans and that all outstanding Eurocurrency Loans denominated in the
affected Non-US Currency be promptly prepaid, in which event all such Eurocurrency Loans in
Dollars shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below and all such Non-US Currency Loans shall be
promptly prepaid.
In the event any Lender shall exercise its rights under (i) or (ii) above with respect to
Eurocurrency Loans, all payments and prepayments of principal which would otherwise have been
applied to repay the Eurocurrency Loans that would have been made by such Lender or the converted
Eurocurrency Loans, of such Lender shall instead be applied to repay the ABR Loans made by such
Lender in lieu of, or resulting from the conversion of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice by any Lender shall be effective as to each
Eurocurrency Loan, if lawful, on the last day of the Interest Period currently applicable to such
Eurocurrency Loan; in all other cases such notice shall be effective on the date of receipt.
SECTION 2.16. Indemnity. The Borrowers shall indemnify each Lender against any out-of-pocket
loss or reasonable expense which such Lender may sustain or incur as a consequence of (a) any
failure to borrow or to refinance, convert or continue any Loan hereunder after irrevocable notice
of such borrowing, refinancing, conversion or continuation has been given pursuant to Section 2.03,
2.04 or 2.06, (b) any payment, prepayment or conversion, or assignment required under Section 2.21,
of a Eurocurrency Loan required by any other provision of this Agreement or otherwise made or
deemed made on a date other than the last day of the Interest Period, if any, applicable thereto,
(c) any default in payment or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise) or (d) the
occurrence of any Event of Default, including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing deposits from
third parties acquired to effect or maintain such Loan or any part thereof as a Eurocurrency Loan.
Such loss or reasonable expense shall include an amount equal to the excess, if any, as reasonably
determined by such Lender, of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
refinanced or not borrowed (assumed to be the Adjusted LIBO Rate applicable thereto) for the period
from the date of such payment, prepayment, refinancing or failure to borrow or refinance to the
last day of the Interest Period for such Loan (or, in the case of a failure to borrow or refinance
the Interest Period for such Loan which would have commenced on the date of such failure) over (ii)
the amount of interest (as reasonably determined by such Lender)
37
that would be realized by such Lender in reemploying the funds so paid, prepaid or not
borrowed or refinanced for such period or Interest Period, as the case may be. A certificate of
any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to
this Section as a result of any loss shall be delivered to such Borrower and shall be conclusive
absent manifest error; provided that any expenses related to any such loss that are incurred by
such Lender and reported under such certificate shall be required to be reasonably documented.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections 2.15 and 2.21, each
payment of the Facility Fees and each reduction of the Commitments shall be allocated pro rata
among the Lenders in accordance with their respective Commitments (or, if such Commitments shall
have expired or been terminated, in accordance with the respective principal amounts of their
outstanding Revolving Loans). Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in accordance with the
respective principal amounts of their outstanding Competitive Loans comprising such Borrowing.
Except as required under Section 2.15, each payment or repayment of principal of any Revolving
Borrowing and each refinancing or conversion of any Revolving Borrowing shall be allocated pro rata
among the Lenders in accordance with the respective principal amounts of their outstanding
Revolving Loans comprising such Borrowing, and each payment of interest on any Revolving Borrowing
shall be allocated pro rata among the Lenders in accordance with the respective amounts of accrued
and unpaid interest on their outstanding Revolving Loans comprising such Borrowing. Each payment
of principal of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders participating in such Borrowing
in accordance with the respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the Commitments of the
Lenders at any time, each outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with their respective Commitments. Each Lender
agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to
the next higher or lower whole Dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means (other than pursuant to Sections 2.14, 2.16
or 2.20), obtain payment (voluntary or involuntary) in respect of any Revolving Loans or amounts
owed to it in respect of L/C Disbursements as a result of which the unpaid principal portion of its
Revolving Loans and the amounts owed to it in respect of L/C Disbursements shall be proportionately
less than the unpaid principal portion of the Revolving Loans and amounts owed in respect of
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L/C Disbursements of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Revolving Loans and amounts owed in respect of L/C Disbursements
of such other Lender, so that the aggregate unpaid principal amount of the Revolving Loans and
participations in the Revolving Loans and amounts owed in respect of L/C Disbursements of each
Lender shall be in the same proportion to the aggregate unpaid principal amount of all Revolving
Loans and amounts owed in respect of L/C Disbursements then outstanding as the principal amount of
its Revolving Loans and the amounts owed to it in respect of L/C Disbursements prior to such
exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all
Revolving Loans and amounts owed in respect of L/C Disbursements outstanding prior to such exercise
of banker’s lien, setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored
without interest. Any Lender holding a participation in a Revolving Loan or amount owed in respect
of an L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s
lien, setoff or counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Revolving Loan in the amount of such participation.
SECTION 2.19. Payments. (a) Except to the extent that any Tax is required to be withheld or
deducted under applicable law or regulation, but subject to the provisions of Section 2.20, the
Borrowers shall make each payment (including principal of or interest on any Borrowing or any L/C
Disbursement and any Fees or other amounts) hereunder without deduction, counter-claim or setoff in
immediately available funds from an account in the United States not later than 12:00 noon, local
time at the place of payment, on the date when due in immediately available funds to the
Administrative Agent at its offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Each such payment
(other than principal of and interest on Non-US Currency Loans, which shall be made in the
applicable Non-US Currencies) shall be made in Dollars.
(b) Whenever any payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or Fees, if applicable.
(c) Notwithstanding any contrary provision hereof, if any Lender shall fail to make any
payment required to be made by it hereunder to or for the account of the Administrative Agent or
any Issuing Bank, the Administrative Agent may, in its discretion, until such time as all such
unsatisfied obligations of such Lender have been fully paid, (i) apply any amounts received by the
Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or
the applicable Issuing Bank to satisfy such Lender’s obligations to it under each such Section
and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application
to, any future
39
funding obligations of such Lender under any such Section, in each case in any order as
determined by the Administrative Agent in its discretion.
SECTION 2.20. Taxes. (a) Each payment by each applicable Borrower under this Agreement shall
be made without withholding for any Taxes, unless such withholding is required by any law. If any
Withholding Agent determines, in its sole discretion exercised in good faith, that it is so
required to withhold Taxes, then such Withholding Agent may so withhold and shall timely pay the
full amount of withheld Taxes to the relevant Governmental Authority in accordance with applicable
law. If such Taxes are Indemnified Taxes, then the amount payable by the applicable Borrower shall
be increased as necessary so that, net of such withholding (including such withholding applicable
to additional amounts payable under this Section), the applicable Recipient receives the amount it
would have received had no such withholding been made.
(b) Each applicable Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) As soon as practicable after any payment of Indemnified 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 or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Each Borrower shall indemnify each Recipient for any Indemnified Taxes that are paid or
payable by such Recipient in connection with this Agreement (including amounts paid or payable
under this Section 2.20(d)) and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority, except to the extent that such Borrower has paid additional amounts with
respect to such Taxes pursuant to Section 2.20(a) of this Agreement. The indemnity under this
Section 2.20(d) shall be paid within 10 days after the Recipient delivers to the applicable
Borrower a certificate stating the amount of any Indemnified Taxes so paid or payable by such
Recipient. Such certificate shall be conclusive of the amount so paid or payable absent manifest
error. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.
(e) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes, only to the extent that the Borrowers have not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of any
Borrower to do so) attributable to such Lender that are paid or payable by the Administrative Agent
in connection with this Agreement and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.20(e) shall be paid within 10 days after
the Administrative Agent delivers to the applicable Lender a certificate stating the amount of
Taxes or expenses so paid or payable by the Administrative Agent. Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
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(f) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under this Agreement or the Loan Documents shall
deliver to the Borrowers and the Administrative Agent, on or prior to the date such Lender becomes
a party to this Agreement and at the time or times reasonably requested by any Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by
such Borrower or the Administrative Agent as will permit such payments to be made without, or at a
reduced rate of, withholding. In addition, any Lender, shall on or prior to the date such Lender
becomes a party to this Agreement and at the time or times reasonably requested by any Borrower or
the Administrative Agent, deliver such other documentation prescribed by law or reasonably
requested by such Borrower or the Administrative Agent as will enable such Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Upon the reasonable request of any Borrower or the
Administrative Agent, any Lender shall update any form or certification previously delivered
pursuant to this Section 2.20(f). If any form or certification previously delivered pursuant to
this Section expires or becomes obsolete or inaccurate in any respect with respect to a Lender,
such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or
inaccuracy) notify such Borrower and the Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.
(ii) Without limiting the generality of the foregoing, if any Borrower is a US Person,
any Lender with respect to such Borrower shall, if it is legally eligible to do so, deliver
to such Borrower and the Administrative Agent (in such number of copies reasonably
requested by such Borrower and the Administrative Agent) on or prior to the date on which
such Lender becomes a party hereto, duly completed and executed copies of whichever of the
following is applicable (including any applicable substitute or successor forms):
(A) in the case of a Lender that is a US Person, IRS Form W-9 certifying
that such Lender is exempt from US Federal backup withholding tax;
(B) in the case of a Non-US Lender claiming the benefits of an income tax
treaty to which the United States is a party (1) with respect to payments of
interest under this Agreement, IRS Form W-8BEN establishing an exemption from,
or reduction of, US Federal withholding Tax pursuant to the “interest” article
of such tax treaty and (2) with respect to any other applicable payments under
this Agreement or the Loan Documents, IRS Form W-8BEN establishing an exemption
from, or reduction of, US Federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(C) in the case of a Non-US Lender for whom payments under this Agreement
constitute income that is effectively connected with such Lender’s conduct of a
trade or business in the United States, IRS Form W-8ECI;
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(D) in the case of a Non-US Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code both (1) IRS Form
W-8BEN and (2) a certificate substantially in the form of Exhibit G (a “US Tax
Certificate”) to the effect that such Lender is not (a) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of
such Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
and (d) conducting a trade or business in the United States with which the
relevant interest payments are effectively connected;
(E) in the case of a Non-US Lender that is not the beneficial owner of
payments made under this Agreement (including a partnership or a participating
Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms
prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that
would be required of each such beneficial owner or partner of such partnership
if such beneficial owner or partner were a Lender; provided, however, that if
the Lender is a partnership and one or more of its partners are claiming the
exemption for portfolio interest under Section 881(c) of the Code, such Lender
may provide a US Tax Certificate on behalf of such partners; or
(F) any other form prescribed by law as a basis for claiming exemption
from, or a reduction of, US Federal withholding Tax together with such
supplementary documentation necessary to enable such Borrower or the
Administrative Agent to determine the amount of Tax (if any) required by law to
be withheld.
(iii) Each Lender shall deliver to the Withholding Agent, at the time or times
prescribed by law (including as prescribed as a result of any change in law or the taking
effect of any law occurring after the date hereof) and at such time or times reasonably
requested by the Withholding Agent, such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code and as prescribed by any
change in law or the taking effect of any law occurring after the date hereof) and such
additional documentation reasonably requested by the Withholding Agent as may be necessary
for the Withholding Agent (A) to comply with its obligations under FATCA, (B) to determine
that such Lender has complied with such Lender’s obligations under FATCA and (C) to
determine the amount to deduct and withhold from such payment. For purposes of this Section
2.20(f)(iii), FATCA shall include any regulations or official interpretations thereof.
(g) If any party determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20
(including additional amounts paid pursuant to this Section 2.20), it shall pay to the indemnifying
party an amount equal to such refund (but only to the extent of indemnity payments made and
additional amounts paid under this Section with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without
interest (other than any interest paid by the
42
relevant Governmental Authority with respect to such refund). Such indemnifying party, upon
the request of such indemnified party, shall repay to such indemnified party the amount paid to
such indemnified party pursuant to the previous sentence (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) in the event such indemnified party is
required to repay such refund to such Governmental Authority. This Section 2.20(g) shall not be
construed to require any party to make available its Tax returns (or any other information relating
to its Taxes which it deems confidential) to any other party or any other Person.
(h) Each Lender shall severally indemnify the Administrative Agent and each Borrower for any
Taxes incurred or asserted against the Administrative Agent or such Borrower by any Governmental
Authority and any reasonable expenses arising therefrom as a result of the failure by such Lender
to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation
required to be delivered by such Lender to the Administrative Agent or such Borrower pursuant to
Section 2.20(f). The indemnity under this Section 2.20(h) shall be paid within 10 days after the
Administrative Agent or such Borrower delivers to the applicable Lender a certificate stating the
amount of Taxes or expenses so paid or payable by the Administrative Agent or such Borrower. Such
certificate shall be conclusive of the amount so paid or payable absent manifest error.
(i) Each party’s obligations under this Section 2.20 shall survive any assignment of rights
by, or the replacement of, a Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all other obligations under this Agreement.
(j) For purposes of Sections 2.20(e), (f), (h) and (i), the term “Lender” includes any (i)
Issuing Bank and (ii) assignee and Participant under Section 9.04.
SECTION 2.21. Duty to Mitigate; Assignment of Commitments Under Certain Circumstances. (a)
Any Lender (including any assignee and any Lender for the benefit of a Participant) or Issuing Bank
claiming any additional amounts payable pursuant to Section 2.14 or Section 2.20 or exercising its
rights under Section 2.15 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to change the
jurisdiction of its applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may thereafter accrue or
avoid the circumstances giving rise to such exercise and would not, in the sole determination of
such Lender (including any assignee and any Lender for the benefit of a Participant) or Issuing
Bank, be otherwise disadvantageous to such Lender (including any assignee and any Lender for the
benefit of a Participant) or Issuing Bank.
(b) In the event that any Lender (including any assignee and any Lender for the benefit of a
Participant) or Issuing Bank shall have delivered a notice or certificate pursuant to Section 2.14
or 2.15, or any Borrower shall be required to make additional payments to any Lender (including any
assignee and any Lender for the benefit of a Participant) or Issuing Bank under Section 2.20, the
Company shall have the right, at its own expense, upon notice to such Lender (including any
assignee and any Lender for the benefit of a Participant) or Issuing Bank and the Administrative
Agent, to require such
43
Lender (including any assignee and any Lender for the benefit of a Participant) or Issuing
Bank to transfer and assign without recourse, representation or warranty (in accordance with and
subject to the restrictions contained in Section 9.04) all interests, rights and obligations
contained hereunder to another financial institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) which shall assume such obligations; provided that
(i) no such assignment shall conflict with any law, rule or regulation or order of any Governmental
Authority and (ii) the assignee or the Company, as the case may be, shall pay to the affected
Lender (including any assignee and any Lender for the benefit of a Participant) or Issuing Bank in
immediately available funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans and L/C Disbursements made by it hereunder and all other amounts
accrued for its account or owed to it hereunder and shall cause all Letters of Credit issued by it
to be canceled on such date.
SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for
so long as such Lender is a Defaulting Lender:
(a) Facility Fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.07(a);
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 9.07);
provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an
amendment, waiver or other modification requiring the consent of such Lender or each Lender
affected thereby;
(c) if any L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) unless a Default or an Event of Default shall have occurred and be continuing, all
or any part of the L/C Exposure of such Defaulting Lender shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Applicable Shares, but only to
the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such
Defaulting Lender’s L/C Exposure does not exceed the total of all non-Defaulting Lenders’
Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, each Borrower shall within two Business Days following notice by the
Administrative Agent cash collateralize for the benefit of the applicable Issuing Bank only
such Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after
giving effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Article VI for so long as such L/C Exposure is outstanding;
(iii) if a Borrower cash collateralizes any portion of such Defaulting Lender’s L/C
Exposure pursuant to clause (ii) above, such Borrower shall not be required to pay any L/C
Participation Fees to such Defaulting Lender pursuant to
44
Section 2.07(c) with respect to such Defaulting Lender’s L/C Exposure during the
period such Defaulting Lender’s L/C Exposure is cash collateralized;
(iv) if the L/C Exposure of the Defaulting Lender is reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Section 2.07(a) and Section
2.07(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable
Shares; and
(v) if all or any portion of such Defaulting Lender’s L/C Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of the applicable Issuing Bank or any other Lender
hereunder, all Facility Fees that otherwise would have been payable to such Defaulting
Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was
utilized by such L/C Exposure) and L/C Participation Fees payable under Section 2.07(c)
with respect to such Defaulting Lender’s L/C Exposure shall be payable to such Issuing Bank
until and to the extent that such L/C Exposure is reallocated and/or cash collateralized;
and
(d) so long as such Lender is a Defaulting Lender, each Issuing Bank shall not be required to
issue, amend or increase any Letter of Credit unless it is satisfied that the related exposure and
the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Commitments of
the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrowers in
accordance with Section 2.22(c), and participating interests in any newly issued or increased
Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with
Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following
the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has a good
faith belief that any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into
arrangements with the applicable Borrowers or such Lender satisfactory to such Issuing Bank to
defease any risk to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrowers and each Issuing Bank each agree
that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a
Defaulting Lender, then the L/C Exposure of the Lenders shall be readjusted to reflect the
inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of
the Loans of the other Lenders (other than Competitive Loans) as the Administrative Agent shall
determine may be necessary in order for such Lender to hold such Loans in accordance with its
Applicable Share.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each of the Lenders as follows (it being agreed that
each Borrower other than the Company makes the following representations only as to itself, but
that the Company makes such representations as to all the Borrowers):
SECTION 3.01. Organization; Powers. Each Borrower and each of the Significant Subsidiaries
(a) is a corporation duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is required, except where
the failure so to qualify would not result in a Material Adverse Effect, and (d) in the case of
each Borrower, has the corporate power and authority to execute, deliver and perform its
obligations under the Loan Documents and to borrow hereunder and thereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by each Borrower of each
Loan Document to which it is or will be a party and the Borrowings hereunder (collectively, the
“Transactions”) (a) have been or, upon execution and delivery thereof, will be duly authorized by
all requisite corporate action and (b) will not (i) violate (A) any provision of any law, statute,
rule or regulation (including the Margin Regulations) or of the certificate of incorporation or
other constitutive documents or by-laws of such Borrower, (B) any order of any Governmental
Authority or (C) any provision of any indenture, material agreement or other instrument to which
any Borrower is a party or by which it or any of its property is or may be bound, where such
violation is reasonably likely to result in a Material Adverse Effect, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, material agreement or other instrument, where such default is reasonably likely
to result in a Material Adverse Effect or (iii) result in the creation or imposition of any lien
upon any property or assets of any Borrower.
SECTION 3.03. Enforceability. This Agreement and each other Loan Document to which any
Borrower is a party constitutes a legal, valid and binding obligation of such Borrower enforceable
in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or other action by any Governmental Authority, other than those which have been taken,
given or made, as the case may be, is or will be required with respect to any Borrower in
connection with the Transactions.
SECTION 3.05. Financial Statements. (a) The Company has heretofore furnished to the
Administrative Agent and the Lenders copies of its consolidated balance sheet and statements of
income, cash flow and retained earnings as of and for the year ended December 31, 2009, and the six
months ended June 30, 2010. Such financial statements present fairly, in all material respects,
the consolidated combined financial
46
condition and the results of operations of the Company and the
Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b) There has been no material adverse change in the consolidated financial condition of the
Company and the Subsidiaries taken as a whole from the financial condition reported in the
financial statements referenced in paragraph (a) of this Section 3.05.
SECTION 3.06. Litigation; Compliance with Laws. (a) There are no actions, proceedings or
investigations filed or (to the knowledge of any Borrower) threatened or affecting any Borrower or
any Subsidiary in any court or before any Governmental Authority or arbitration board or tribunal
which question the validity or legality of this Agreement, the Transactions or any action taken or
to be taken pursuant to this Agreement and no order or judgment has been issued or entered
restraining or
enjoining any Borrower or any Subsidiary from the execution, delivery or performance of this
Agreement nor is there any other action, proceeding or investigation filed or (to the knowledge of
any Borrower or any Subsidiary) threatened against any Borrower or any Subsidiary in any court or
before any Governmental Authority or arbitration board or tribunal which would be reasonably likely
to result in a Material Adverse Effect or materially restrict the ability of any Borrower to comply
with its obligations under the Loan Documents.
(b) Neither any Borrower nor any Subsidiary is in violation of any law, rule or regulation
(including any law, rule or regulation relating to the protection of the environment or to employee
health or safety), or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would be reasonably likely to result in a
Material Adverse Effect.
SECTION 3.07. Federal Reserve Regulations. (a) Neither any Borrower nor any Subsidiary that
will receive proceeds of the Loans hereunder is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry Margin Stock or to refund
indebtedness originally incurred for such purpose, or for any other purpose which entails a
violation of, or which is inconsistent with, the provisions of the Margin Regulations.
SECTION 3.08. Investment Company Act. No Borrower is an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940 (the “1940 Act”).
SECTION 3.09. Use of Proceeds. All proceeds of the Loans and Letters of Credit shall be used
for the purposes referred to in the recitals to this Agreement and in accordance with the
provisions of Section 3.07.
SECTION 3.10. Full Disclosure; No Material Misstatements. None of the representations or
warranties made by any Borrower in connection with this
47
Agreement as of the date such
representations and warranties are made or deemed made, and no report, financial statement or other
information furnished by or on behalf of any Borrower to the Administrative Agent or any Lender
pursuant to or in connection with this Agreement or the credit facilities established hereby,
contains or will contain any material misstatement of fact or omits or will omit to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were or will be made, not misleading.
SECTION 3.11. Taxes. Each Borrower and each of the Significant Subsidiaries have filed or
caused to be filed all Federal, state and local tax returns which are required to be filed by them,
and have paid or caused to be paid all taxes shown to be due and payable on such returns or on any
assessments received by any of them, other than any taxes or assessments the validity of which is
being contested in good faith by
appropriate proceedings, and with respect to which appropriate accounting reserves have to the
extent required by GAAP been set aside.
SECTION 3.12. Employee Pension Benefit Plans. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.
The present value of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of FASB ASC Topic 715) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an
amount that could reasonably be expected to result in a Material Adverse Effect, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions
used for purposes of FASB ASC Topic 715) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by an amount that could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.13. OFAC. None of the Borrowers, nor any of their respective Affiliates, is in
violation of (i) any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto, (ii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the
President of the United States (Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit or Support Terrorism) or (iii) the anti-money laundering
provisions of the USA PATRIOT Act (Title III of Pub. L. 107-56) (the “USA PATRIOT Act”) amending
the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq and any other laws relating to terrorism or
money laundering.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of
Credit hereunder are subject to the satisfaction of the following conditions:
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SECTION 4.01. All Extensions of Credit. On the date of each Borrowing and on the date of each
issuance of a Letter of Credit:
(a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03 or Section 2.04, as applicable, or, in the case of the issuance of a Letter of Credit,
the applicable Issuing Bank shall have been selected to issue such Letter of Credit as contemplated
by Section 2.05.
(b) The representations and warranties set forth in Article III hereof (except those contained
in Sections 3.05(b) and 3.06(a)) shall be true and correct in all material respects on and as of
the date of such Borrowing or issuance of a Letter of Credit with the same effect as though made on
and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which case on and as of
such earlier date.
(c) At the time of and immediately after such Borrowing or issuance of a Letter of Credit no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing and issuance of a Letter of Credit shall be deemed to constitute a representation
and warranty by each Borrower on the date of such Borrowing or issuance of a Letter of Credit as to
the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effective Date. On the Effective Date:
(a) The Administrative Agent shall have received a favorable written opinion of Xxxxx X.
Xxxxxxx, Esq., dated the Effective Date and addressed to the Lenders and satisfactory to the
Lenders, the Administrative Agent and Cravath, Swaine & Xxxxx LLP, counsel for the Administrative
Agent, to the effect set forth in Exhibit C hereto.
(b) The Administrative Agent shall have received (i) a copy of the certificate of
incorporation, including all amendments thereto, of the Company, certified as of a recent date by
the Secretary of State of its state of incorporation, and a certificate as to the existence of the
Company as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an
Assistant Secretary of the Company dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of the Company as in effect on the Effective
Date and at all times since a date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of the Company authorizing the execution, delivery and performance of this
Agreement and the Borrowings hereunder, and that such resolutions have not been modified, rescinded
or amended and are in full force and effect, (C) that the certificate of incorporation referred to
in clause (i) above has not been amended since the date of the last amendment thereto shown on the
certificate of existence furnished pursuant to such clause (i) and (D) as to the incumbency and
specimen signature of each officer executing this Agreement or any other document delivered in
connection herewith on behalf of the Company; and (iii) a certificate of another officer of the
Company as to the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above.
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(c) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by a Financial Officer of the Company, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01 (without giving effect to the parenthetical in
such paragraph (b)).
(d) The principal of and accrued and unpaid interest on any loans outstanding under the
Existing Credit Agreement shall have been paid in full, all other amounts due under the Existing
Credit Agreement shall have been paid in full, all letters of credit issued under the Existing
Credit Agreement shall have been terminated and the commitments of the lenders and issuing banks
under the Existing Credit Agreement shall have been permanently terminated.
(e) The Administrative Agent shall have received any Fees or other amounts due and payable in
connection with the credit facility established hereby on or prior to the Effective Date.
(f) The Lenders and any Issuing Bank shall have received all documentation and other
information required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT Act.
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. On or prior to the first date on
which Loans are made to or Letters of Credit are issued for the benefit of any Borrowing
Subsidiary:
(a) The Lenders and any Issuing Banks shall have received the favorable written opinion of
counsel satisfactory to the Administrative Agent, addressed to the Lenders and satisfactory to the
Lenders, the Administrative Agent and Cravath, Swaine & Xxxxx LLP, counsel for the Administrative
Agent, to the effect set forth in Exhibit C hereto.
(b) Each Lender and any Issuing Banks shall have received a copy of the Borrowing Subsidiary
Agreement executed by such Borrowing Subsidiary.
(c) It shall not be unlawful for such Subsidiary to become a Borrower hereunder or for any
Lender to make Loans or otherwise extend credit to such Subsidiary as provided herein or for any
Issuing Bank to issue Letters of Credit for the account of such Subsidiary.
(d) The Lenders and any Issuing Bank shall have received (i) all documentation and other
information required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) such documents
and certificates as the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of such Borrowing Subsidiary, the authorization of the
Transactions insofar as they relate to such Borrowing Subsidiary and any other legal matters
relating to such Borrowing Subsidiary, its Borrowing Subsidiary Agreement or such Transactions, all
in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
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ARTICLE V
COVENANTS
A. Affirmative Covenants. Each Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other amounts payable hereunder shall be unpaid or any
Letters of Credit have not been canceled or have not expired or any amounts drawn thereunder have
not been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, it
will, and will cause each of the Significant Subsidiaries to:
SECTION 5.01. Existence. Do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises, except as expressly permitted
under Section 5.09; provided, however, that nothing in this Section shall prevent the abandonment
or termination of the existence, rights or franchises of any Significant Subsidiary or any rights
or franchises of any Borrower if such abandonment or termination is in the best interests of the
Borrowers and is not disadvantageous in any material respect to the Lenders.
SECTION 5.02. Business and Properties. Comply in all material respects with all applicable
laws, rules, regulations and orders of any Governmental Authority (including any of the foregoing
relating to the protection of the environment or to employee health and safety), whether now in
effect or hereafter enacted; and at all times maintain and preserve all property material to the
conduct of its business and keep such property in good repair, working order and condition and from
time to time make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business carried on in connection
therewith may be properly conducted at all times.
SECTION 5.03. Financial Statements, Reports, etc. In the case of the Company, furnish to the
Administrative Agent for distribution to each Lender:
(a) within 120 days after the end of each fiscal year, its consolidated balance sheet and the
related consolidated statements of income and cash flows showing its consolidated financial
condition as of the close of such fiscal year and the consolidated results of its operations during
such year, all audited by Deloitte & Touche LLP or other independent certified public accountants
of recognized national standing selected by the Company and accompanied by an opinion of such
accountants to the effect that such consolidated financial statements fairly present its financial
condition and results of operations on a consolidated basis in accordance with GAAP (it being
agreed that the requirements of this paragraph may be satisfied by the delivery pursuant to
paragraph (d) below of an annual report on Form 10-K containing the foregoing);
(b) within 90 days after the end of each of the first three fiscal quarters of each fiscal
year, its consolidated balance sheet and related consolidated statements of income, cash flow and
stockholders’ equity, showing its consolidated financial condition as of the close of such fiscal
quarter and the consolidated results of its operations during such fiscal quarter and the then
elapsed portion of the fiscal year, all certified by one of
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its Financial Officers as fairly
presenting its financial condition and results of operations on a consolidated basis in accordance
with GAAP, subject to normal year-end audit adjustments (it being agreed that the requirements of
this paragraph may be satisfied by the delivery pursuant to paragraph (d) below of a quarterly
report on Form 10-Q containing the foregoing);
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Financial Officer certifying that, to the best of such Financial Officer’s
knowledge, no Event of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective action taken or proposed
to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of all reports on forms 10-K,
10-Q and 8-K filed by it with the SEC, or any Governmental Authority succeeding to any of or all
the functions of the SEC, or, in the case of the Company, copies of all reports distributed to its
shareholders, as the case may be;
(e) promptly, from time to time, such other information as any Lender shall reasonably request
through the Administrative Agent; and
(f) concurrently with any delivery of financial statements under paragraph (a) or (b) above,
calculations of the financial test referred to in Section 5.12.
Information required to be delivered to the Administrative Agent pursuant to this Section 5.03
shall be deemed to have been distributed to the Lenders if such information, or one or more annual
or quarterly reports containing such information, shall have been posted by the Administrative
Agent on an IntraLinks or similar site to which the Lenders have been granted access or shall be
available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx (and a
confirming electronic correspondence shall have been delivered or caused to be delivered to the
Lenders providing notice of such posting or availability). Information required to be delivered
pursuant to this Section 5.03 may also be delivered by electronic communications pursuant to
procedures approved by the Administrative Agent.
SECTION 5.04. Insurance. Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, and maintain such other insurance, to such extent and
against such risks, including fire and other risks insured against by extended coverage, as is
customary with companies similarly situated and in the same or similar businesses (it being
understood that the Borrowers and their Significant Subsidiaries may self-insure to the extent
customary with companies similarly situated and in the same or similar businesses).
SECTION 5.05. Obligations and Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges imposed upon it or upon its income or profits or in respect of
its property, as well as all other material liabilities, in each case before the same shall become
delinquent or in default and before penalties accrue thereon, unless and to the extent that the
same are being contested in good faith by appropriate proceedings and adequate reserves with
respect thereto shall, to the extent required by GAAP, have been set aside.
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SECTION 5.06. Litigation and Other Notices. Give the Administrative Agent prompt written
notice of the following (which the Administrative Agent shall promptly provide to the Lenders):
(a) the filing or commencement of, or any written threat or written notice of intention of any
Person to file or commence, any action, suit or proceeding which is reasonably likely to result in
a Material Adverse Effect;
(b) any Event of Default or Default, specifying the nature and extent thereof and the action
(if any) which is proposed to be taken with respect thereto; and
(c) any change in any of the Ratings.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Maintain financial
records in accordance with GAAP and, upon reasonable notice, at all reasonable times, permit any
authorized representative designated by the Administrative Agent to visit and inspect the
properties of the Company and of any Significant Subsidiary and to discuss the affairs, finances
and condition of the Company and any Significant Subsidiary with a Financial Officer of the Company
and such other officers as the Company shall deem appropriate.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for the purposes set forth
in the recitals to this Agreement.
B. Negative Covenants. Each Borrower covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or the principal of or
interest on any Loan, any Fees or any other amounts payable hereunder shall be unpaid or any
Letters of Credit have not been canceled or have not expired or any amounts drawn thereunder have
not been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, it
will not, and will not cause or permit any of the Subsidiaries to:
SECTION 5.09. Consolidations, Mergers, and Sales of Assets. Consolidate or merge with or into
any other Person or sell, lease or transfer all or substantially all of its property and assets, or
agree to do any of the foregoing, unless (a) no Default or Event of Default has occurred and is
continuing or would have occurred immediately after giving effect thereto, and (b) in the case of a
consolidation or merger involving the Company and in which the Company is not the surviving
corporation or, in the case where the Company sells, leases or transfers all or substantially all
of its property and assets, the surviving corporation or Person purchasing, leasing or receiving
such property and assets is organized in the United States of America or a state thereof and agrees
to be bound by the terms and provisions applicable to the Company hereunder.
SECTION 5.10. Limitations on Liens. In the case of the Company, create, suffer to be created,
or assume (directly or indirectly) any mortgage, pledge or other lien upon any Principal Property,
or permit any Restricted Subsidiary to create, suffer to be created, or assume (directly or
indirectly) any mortgage, pledge or other lien upon any Principal Property; provided, however, that
this covenant shall not apply to any of the following:
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(a) any mortgage, pledge or other lien on any Principal Property hereafter acquired,
constructed or improved by the Company or any Restricted Subsidiary which is created or assumed to
secure or provide for the payment of any part of the purchase price of such property or the cost of
such construction or improvement, or any mortgage, pledge or other lien on any Principal Property
existing at the time of acquisition thereof; provided, however, that the mortgage, pledge or other
lien shall not extend to any Principal Property theretofore owned by the Company or any Restricted
Subsidiary;
(b) any mortgage, pledge or other lien on any Principal Property existing on the date of this
Agreement as described in Schedule 5.10;
(c) any mortgage, pledge or other lien existing upon any property of a company which is merged
with or into or is consolidated into, or substantially all the assets or shares of capital stock of
which are acquired by, the Company or a Restricted Subsidiary, at the time of such merger,
consolidation or acquisition; provided that such mortgage, pledge or other lien does not extend to
any other Principal Property, other than improvements to the property subject to such mortgage,
pledge or other lien;
(d) any pledge or deposit to secure payment of workers’ compensation or insurance premiums, or
in connection with tenders, bids, contracts (other than contracts for the payment of money) or
leases;
(e) any pledge of, or other lien upon, any assets as security for the payment of any tax,
assessment or other similar charge by any Governmental Authority or public body, or as security
required by law or governmental regulation as a condition to the transaction of any business or the
exercise of any privilege or right;
(f) any pledge or lien necessary to secure a stay of any legal or equitable process in a
proceeding to enforce a liability or obligation contested in good faith by the Company or a
Restricted Subsidiary or required in connection with the institution by the Company or a Restricted
Subsidiary of any legal or equitable proceeding to enforce a right or to obtain a remedy claimed in
good faith by the Company or a Restricted Subsidiary, or required in connection with any order or
decree in any such proceeding or in connection with any contest of any tax or other governmental
charge; or the making of any deposit with or the giving of any form of security to any governmental
agency or any body created or approved by law or governmental regulation in order to entitle the
Company or a Restricted Subsidiary to maintain self-insurance or to participate in any fund in
connection with workers’ compensation, unemployment insurance, old age pensions or other social
security or to share in any provisions or other benefits provided for companies participating in
any such arrangement or for liability on insurance of credits or other risks;
(g) any mechanics’, carriers’, workmen’s, repairmen’s, or other like liens, if arising in the
ordinary course of business, in respect of obligations which are not overdue or liability for which
is being contested in good faith by appropriate proceedings;
(h) any lien or encumbrance on property in favor of the United States of America, or of any
agency, department or other instrumentality thereof, to secure partial, progress or advance
payments pursuant to the provisions of any contract;
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(i) any mortgage, pledge or other lien securing any indebtedness incurred in any manner to
finance or recover the cost to the Company or any Restricted Subsidiary of any physical property,
real or personal, which prior to or simultaneously with the creation of such indebtedness shall
have been leased by the Company or a Restricted Subsidiary to the United States of America or a
department or agency thereof at an aggregate rental, payable during that portion of the initial
term of such lease (without giving effect to any options of renewal or extension) which shall be
unexpired at the date of the creation of such indebtedness, sufficient (taken together with any
amounts required to be paid by the lessee to the lessor upon any termination of such lease) to pay
in full at
the stated maturity date or dates thereof the principal of and the interest on such
indebtedness;
(j) any mortgage, pledge or other lien securing indebtedness of a Restricted Subsidiary to the
Company or a Restricted Subsidiary, provided that in the case of any sale or other disposition of
such indebtedness by the Company or such Restricted Subsidiary, such sale or other disposition
shall be deemed to constitute the creation of another mortgage, pledge or other lien not permitted
by this clause (j);
(k) any mortgage, pledge or other lien affecting property of the Company or any Restricted
Subsidiary securing indebtedness of the United States of America or a State thereof (or any
instrumentality or agency of either thereof) issued in connection with a pollution control or
abatement program required in the opinion of the Company to meet environmental criteria with
respect to manufacturing or processing operations of the Company or any Restricted Subsidiary and
the proceeds of which indebtedness have financed the cost of acquisition of such program;
(l) the renewal, extension, replacement or refunding of any mortgage, pledge, lien, deposit,
charge or other encumbrance permitted by the foregoing provisions of this covenant upon the same
property theretofore subject thereto, or the renewal, extension, replacement or refunding of the
amount secured thereby, provided that in each case such amount outstanding at that time shall not
be increased; or
(m) any other mortgage, pledge or other lien, provided that immediately after the creation or
assumption of such mortgage, pledge or other lien, the total of (x) the aggregate principal amount
of indebtedness of the Company and all Restricted Subsidiaries secured by all mortgages, pledges
and other liens created or assumed under the provisions of this clause (m), plus (y) the aggregate
amount of Capitalized Lease-Back Obligations of the Company and Restricted Subsidiaries under the
entire unexpired terms of all leases entered into in connection with sale and lease-back
transactions which would have been precluded by the provisions of Section 5.11 but for the
satisfaction of the condition set forth in clause (b) thereof, shall not exceed an amount equal to
5% of Consolidated Net Tangible Assets.
The lease of any property by the Company or a Restricted Subsidiary and rental obligations with
respect thereto (whether or not arising out of a sale and lease-back of properties and whether or
not in accordance with GAAP such property is carried as an asset and such rental obligations are
carried as indebtedness on the Company’s or a Restricted Subsidiary’s balance sheet) shall not in
any event be deemed to be the creation of a mortgage, pledge or other lien.
55
SECTION 5.11. Limitations on Sale and Leaseback Transactions. In the case of the Company or
any Restricted Subsidiary, enter into any arrangement with any Person providing for the leasing by
the Company or any Restricted Subsidiary of any Principal Property (except for temporary leases for
a term of not more than three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person more than 120 days after
the acquisition thereof or the completion of construction and commencement of full
operation thereof, unless either (a) the Company shall apply an amount equal to the greater of
the Fair Value of such property or the net proceeds of such sale, within 120 days of the effective
date of any such arrangement, to the retirement (other than any mandatory retirement or by way of
payment at maturity) of Indebtedness or to the acquisition, construction, development or
improvement of properties, facilities or equipment used for operating purposes which are, or upon
such acquisition, construction, development or improvement will be, a Principal Property or a part
thereof; or (b) at the time of entering into such arrangement, such Principal Property could have
been subjected to a mortgage, pledge or other lien securing indebtedness of the Company or a
Restricted Subsidiary in a principal amount equal to the Capitalized Lease-Back Obligations with
respect to such Principal Property under paragraph (m) of Section 5.10.
SECTION 5.12. Consolidated EBITDA to Consolidated Interest Expense. Permit the ratio of (a)
Consolidated EBITDA to (b) Consolidated Interest Expense, each as calculated for any period of the
four prior consecutive fiscal quarters, to be less than 3.5 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each an “Event of Default”):
(a) any representation or warranty made or deemed made in or in connection with the execution
and delivery of this Agreement or the Borrowings or issuances of Letters of Credit hereunder shall
prove to have been false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan or the reimbursement
with respect to any L/C Disbursement when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan or L/C Disbursement or
any Fee or any other amount (other than an amount referred to in paragraph (b) above) due
hereunder, when and as the same shall become due and payable, and such default shall continue
unremedied for a period of ten days;
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(d) default shall be made in the due observance or performance of any covenant,
condition or agreement contained in Section 5.01, 5.09, 5.10, 5.11 or 5.12, and, in the case of any
default under Section 5.10, such default shall continue for 30 days;
(e) default shall be made in the due observance or performance of any covenant, condition or
agreement contained herein or in any other Loan Document (other than those specified in clauses
(b), (c) or (d) above) and such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or any Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any principal or interest, regardless
of amount, due in respect of any Indebtedness in a principal amount in excess of $50,000,000,
beyond the period of grace, if any, provided in the agreement or instrument under which such
Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or governing any such Indebtedness,
or any other event shall occur or condition shall exist, beyond the period of grace, if any,
provided in such agreement or instrument, if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or
their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior
to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of the Company, or of a substantial
part of the property or assets of the Company or any Subsidiary with assets having gross book value
in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or for a substantial part of the property or assets of the Company or any
Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or
liquidation of the Company; and 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;
(h) the Company or any Subsidiary with assets having a gross book value in excess of
$25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or for a substantial part
of the property or assets of the Company, (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, (vi) become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
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(i) one or more final judgments shall be entered by any court against the Company or any of
the Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such
judgment or judgments shall not have been paid,
covered by insurance, discharged or stayed for a period of 60 days, or a warrant of attachment
or execution or similar process shall have been issued or levied against property of the Company or
any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other such ERISA Events, could reasonably be expected to result in a
Material Adverse Effect; or
(k) a Change in Control shall occur;
then, and in every such event (other than an event with respect to any Borrower described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice to the Company, take
any or all of the following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued
hereunder, without presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived anything contained herein to the contrary notwithstanding, (iii) require
the Borrowers to deposit with the Administrative Agent cash collateral in an amount equal to the
aggregate L/C Exposures to secure the Borrowers’ reimbursement obligations under Section 2.05; and,
in the case of any event with respect to any Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived anything
contained herein to the contrary notwithstanding, and the Borrowers shall deposit with the
Administrative Agent cash collateral in an amount equal to the aggregate L/C Exposure to secure the
Borrowers’ reimbursement obligations under Section 2.05.
ARTICLE VII
GUARANTEE
The Company unconditionally and irrevocably guarantees the due and punctual payment and
performance, when and as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, of the Guaranteed Obligations. The Company further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further
assent from it and that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Guaranteed Obligations.
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The Company waives presentment to, demand of payment from and protest to the Borrowing
Subsidiaries of any of the Guaranteed Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. The obligations of the Company hereunder shall not
be affected by (a) the failure of any
Lender to assert any claim or demand or to enforce any right or remedy against the Borrowing
Subsidiaries under the provisions of any Loan Document or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of any Loan Document, any guarantee or
any other agreement; or (c) the failure of any Lender to exercise any right or remedy against any
other guarantor of the Guaranteed Obligations.
The Company further agrees that its guarantee constitutes a guarantee of payment when due and
not of collection, and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any security, if any, held for payment of the Guaranteed Obligations or to
any balance of any deposit account or credit on its books, in favor of the Borrowing Subsidiaries
or any other Person.
Except to the extent that any Tax is required to be withheld or deducted under applicable law
or regulation, but subject to the provisions of Section 2.20, the obligations of the Company
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of the Company hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or
any Lender to assert any claim or demand or to enforce any remedy under any Loan Document, any
guarantee or any other agreement, by any waiver or modification of any provision thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the Guaranteed Obligations,
or by any other act or omission which may or might in any manner or to any extent vary the risk of
the Company or otherwise operate as a discharge of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives any defense based on or arising
out of any defense available to the Borrowing Subsidiaries, including any defense based on or
arising out of any disability of the Borrowing Subsidiaries, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrowing Subsidiaries, other than final payment in full of the Guaranteed
Obligations. The Administrative Agent and the Lenders may, at their election, foreclose on any
security held by one or more of them by one or more judicial or non-judicial sales, or exercise any
other right or remedy available to them against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company hereunder except to the extent the
Guaranteed Obligations have been fully, finally and indefeasibly paid. The Company waives any
defense arising out of any such election even though such election operates to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of the Company
against the Borrowing Subsidiaries or any security.
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The Company further agrees that its guarantee shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any Lender upon the bankruptcy
or reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the
Administrative Agent or any Lender may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrowing Subsidiary to pay any Guaranteed Obligation when and as
the same shall become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent or any Lender, forthwith pay or cause to be paid to the Administrative Agent
or such Lender in cash the amount of such unpaid Guaranteed Obligation.
The Company hereby irrevocably waives and releases any and all rights of subrogation,
indemnification, reimbursement and similar rights which it may have against or in respect of the
Borrowing Subsidiaries at any time relating to the Guaranteed Obligations, including all rights
that would result in its being deemed a “creditor” of the Borrowing Subsidiaries under the United
States Code as now in effect or hereafter amended, or any comparable provision of any successor
statute.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental thereto.
Any bank serving as Administrative Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.07), and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall not have any
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duty to
disclose, and shall not be liable for the failure to disclose, any information relating to the
Company or any of its Subsidiaries that is communicated to or obtained by any bank serving as
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.07) or
in the absence of its own gross negligence or wilful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent, by the Company or a Lender, and the Administrative Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by them to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to them orally or by telephone and
believed by them to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by them, and shall not be liable for
any action taken or not taken by them in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all of its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Affiliates of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities the Administrative
Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Company. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Company, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a commercial bank with an office in New York, New York, having a
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combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to the successor Administrative Agent shall be the same
as those payable to
its predecessor unless otherwise agreed between the Company and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Affiliates in respect of any actions taken or omitted to be taken by any of them while
it was acting as Administrative Agent or sub-agent, as the case may be.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other 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, any other Loan Document or related agreement or any document furnished
hereunder or thereunder.
It is agreed that the Syndication Agents and Documentation Agent shall, in their capacities as
such, have no duties or responsibilities under this Agreement or liability in connection with this
Agreement. None of the Syndication Agents and Documentation Agent, in their capacities as such,
has or is deemed to have any fiduciary relationship with any Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy, or
delivered by electronic communications, as follows:
(a) if to any Borrower, to ITT Corporation, 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000, Attention of Xxxxxx X. Xxxxx, Senior Vice President and Chief Financial Officer (Telecopy
No. 000-000-0000; E-mail: xxxxxx.xxxxx@xxx.xxx), as agent for such Borrower;
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and Agency Services Group,
0000 Xxxxxx Xxxxxx, Xxxxx 00, Xxxxxxx, XX 00000, Attention of Xxxxxx Xxxx (Telecopy No.
000-000-0000; E-mail: xxxxxx.x.xxxx@xxxxx.xxx), with a copy to JPMorgan Chase Bank at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No. 000-000-0000; E-mail:
xxxxxxx.x.xxxxxxx@xxxxxxxx.xxx) and JPMorgan Chase Bank, Loan and Agency Group (London) at 000
Xxxxxx Xxxx, Xxxxx 0, Xxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx, Attention
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of Xxxxx Xxxxxx (Telecopy No. x00
000 000 0000; Email: xxx.x.xxxxxx@xxxxxxxx.xxx), Re: ITT Corporation; and
(c) if to a Lender, to it at its address (or telecopy number or e-mail address) set forth in
the Administrative Questionnaire provided by it to the Administrative Agent.
All notices and other communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given (i) on the date of receipt if delivered by hand
or overnight courier service or (ii) when sent if delivered by fax or other electronic transmission
(it being agreed that that if any such delivery shall not be effected during normal business hours
for the recipient, delivery shall be deemed to have been made at the opening of business on the
next business day for the recipient), in each case as provided in this Section or in accordance
with the latest unrevoked direction from such party given in accordance with this Section. Notices
and other communications pursuant to Article II and other communications under this Agreement that
require the signature of the sender may not be delivered or furnished by electronic communications,
and shall only be delivered by any of the other methods set forth above; provided, however, that a
signed notice or communication that is sent as an attachment to an electronic communication shall
be deemed to have been sent by telecopy.
SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered to have been relied
upon by the Lenders and the Issuing Banks and shall survive the making by the Lenders of the Loans
and issuance of Letters of Credit regardless of any investigation made by the Lenders or the
Issuing Banks or on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount payable under this
Agreement is outstanding and unpaid, any Letter of Credit is outstanding or the Commitments have
not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of any Letter of Credit, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement, or any investigation made by or on
behalf of the Administrative Agent or any Lender.
SECTION 9.03. Binding Effect. This Agreement shall become effective on the Effective Date
and when it shall have been executed by the Company and the Administrative Agent and when the
Administrative Agent shall have received copies hereof (telecopied or otherwise) which, when taken
together, bear the signature of each Lender, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, except that the
Borrowers shall not have the right to assign any rights hereunder or any interest herein without
the prior consent of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to
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include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of any party that are contained
in this Agreement shall bind and inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided, however, that
(i) such assignment shall be subject to the prior written consent (not to be unreasonably
withheld or delayed) of: (1) the Company, unless (x) the assignee is a Lender, an Affiliate of a
Lender or an Approved Fund, or (y) an Event of Default has occurred and is continuing, (2) the
Administrative Agent, and (3) each Issuing Bank, (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, and a processing and
recordation fee of $3,500, (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire, (iv) the amount of the Commitment assigned
(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, except in the event that
the amount of the Commitment of such assigning Lender remaining after such assignment shall be zero
and (v) without providing (1) prior notice to the Administrative Agent and (2) information
reasonably requested by the Administrative Agent so that it may comply with information reporting
requirements under the Code, no assignment shall be made to a prospective assignee that bears a
relationship to any Borrower described in Section 108(e)(4) of the Code. Upon acceptance and
recording pursuant to paragraph (e) of this Section, from and after the effective date specified in
each Assignment and Assumption, which effective date shall be at least five Business Days after the
execution thereof, (A) 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 (B) 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 or the remaining portion of an
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, 2.16, 2.20 and
9.05, as well as to any Fees accrued for its account hereunder and not yet paid)). Notwithstanding
the foregoing, any Lender assigning its rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in such case shall retain its rights
hereunder in respect of any Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) By executing and delivering an Assignment and Assumption, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document furnished pursuant
hereto
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or the financial condition of the Borrowers or the performance or observance by the
Borrowers of any obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Assumption; (iv) such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial statements delivered pursuant to
Section 5.03 and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to
enter into such Assignment and Assumption; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in The City of New York 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 the principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive in the absence of manifest error and the Borrowers, the
Administrative Agent, the Issuing Banks 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. The Register shall be available for inspection by each party hereto, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee together with an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and the written consent of the Company to such assignment
(if required under paragraph (a) above), the Administrative Agent shall (i) accept such Assignment
and Assumption and (ii) record the information contained therein in the Register. Each assignee,
by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented
to the assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee.
(f) Each Lender may sell participations to one or more banks or other entities (each, a
“Participant”) in all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations, (iii) each
Participant shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16 and 2.20 to the same extent as if it were the selling Lender (and limited to
the amount that could have been
65
claimed by the selling Lender had it continued to hold the interest
of such Participant), except that all claims made pursuant to such Sections shall be made through
such selling Lender, (iv) the Borrowers, the Administrative Agent, the Issuing Banks and the other
Lenders shall continue to deal solely and directly with such selling Lender in connection with such
Lender’s rights and obligations under this Agreement and (v) without providing (1) prior notice to
the Administrative Agent and (2) information reasonably requested by the Administrative Agent so
that it may comply with information reporting
requirements under the Code, no participation shall be made to a prospective Participant that
bears a relationship to any Borrower described in Section 108(e)(4) of the Code. In no event shall
a Lender that sells a participation agree with the Participant to take or refrain from taking any
action hereunder except that such Lender may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase or extend the term of such Lender’s
Commitment, or extend the time or waive any requirement for the reduction or termination, of such
Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the
related Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the
amount of any such payment of principal or (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers (solely for tax
purposes), maintain a register on which it enters the name and address of each Participant and the
principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of the Participant Register to any Person (including
the identity of any Participant or any information relating to a Participant’s interest in any
Commitments, Loans, Letters of Credit or its other obligations under this Agreement) except to the
extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit
or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and
such Lender shall treat each person whose name is recorded in the Participant Register as the owner
of such participation for all purposes of this Agreement notwithstanding any notice to the
contrary.
(g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrowers furnished
to such Lender; provided that, prior to any such disclosure, each such assignee or participant or
proposed assignee or participant shall execute an agreement for the benefit of the Company whereby
such assignee or participant shall agree (subject to customary exceptions) to preserve the
confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and duties hereunder without the
prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of its rights under this Agreement to
a Federal Reserve Bank or any central bank; provided that no
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such pledge shall release any Lender
from its obligations hereunder or substitute any such Bank for such Lender as a party hereto. In
order to facilitate such an assignment to a Federal Reserve Bank, each Borrower shall, at the
request of the assigning Lender, duly execute and deliver to the assigning Lender a promissory note
or notes evidencing the Loans made to such Borrower by the assigning Lender hereunder in the form
of Exhibit F.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the Joint Lead Arrangers and Joint
Bookrunners named on the cover of this Agreement and their Affiliates in connection with the
arrangement and syndication of the credit facility established hereby and the preparation,
negotiation, execution and delivery of the Loan Documents (and all related commitment or fee
letters) or in connection with any amendments, modifications or waivers of the provisions hereof or
thereof, or incurred by the Administrative Agent or any Lender in connection with the
administration, enforcement or protection of their rights in connection with the Loan Documents
(including all such out-of pocket expenses incurred during any workout or restructuring) or in
connection with the Loans made or Letters of Credit issued hereunder, including the reasonable fees
and disbursements of counsel for the Administrative Agent and each Joint Lead Arranger and Joint
Bookrunner or, in the case of enforcement or protection of their rights, the Lenders (which, in the
case of preparation, negotiation, execution, delivery and administration of the Loan Documents, but
not the enforcement or protection of rights thereunder, shall be limited to a single counsel for
the Administrative Agent, the Joint Lead Arrangers and the Joint Bookrunners).
(b) The Borrowers agree to indemnify the Administrative Agent, the Joint Lead Arrangers and
Joint Bookrunners named on the cover of this Agreement, the Syndication Agent, the Issuing Banks,
each Lender, each of their Affiliates and the directors, officers, employees and agents of the
foregoing (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related reasonable expenses,
including reasonable counsel fees and expenses, incurred by or asserted against any Indemnitee
arising out of (i) the arrangement and syndication of the credit facility established hereby and
the preparation, negotiation, execution and delivery of the Loan Documents (and all related
commitment or fee letters) or consummation of the transactions contemplated thereby, (ii) the use
of the proceeds of the Loans or issuance of Letters of Credit or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, regardless of whether initiated by
any third party or by any Borrower and whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a final and non-appealable
judgment of a court of competent jurisdiction to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any investigation made
by or on behalf of the
67
Administrative Agent, the Issuing Banks or any Lender. All amounts due
under this Section shall be payable on written demand therefor.
(d) Notwithstanding any other provision, this Section 9.05 shall not apply with respect to any
matters, liabilities or obligations relating to Taxes.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Issuing Banks or any Lender in exercising any power or right 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 Administrative
Agent, the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision of this Agreement
or consent to any departure therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on any Borrower or any
Subsidiary in any case shall entitle such party to any other or further notice or demand in similar
or other circumstances.
(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; provided that no such agreement shall (i) increase the Commitment or L/C Exposure of any
Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or
L/C Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the date of any
scheduled payment of the principal amount of any Loan or L/C 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 affected thereby, (iv) change Section 2.17 or change any other provision of any Loan
Document in a manner that would alter the pro rata sharing of payments required thereby, without
the written consent of each Lender, (v) change Section 9.04(h), (vi) limit or release the guarantee
set forth in Article VII, or (vii) 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; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent
or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be. Notwithstanding the foregoing, any provision of this Agreement
may be amended by an agreement in writing entered into by the Borrowers, the Required Lenders and
the Administrative Agent (and,
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if its rights or obligations are affected thereby, the Issuing Bank)
if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time
such amendment becomes effective, each Lender not consenting thereto receives payment in full of
the principal of and interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
SECTION 9.08. Entire Agreement. This Agreement and the agreements referenced in Section
2.07(b) constitute the entire contract among the parties relative to the subject matter hereof.
Any previous agreement among the parties with respect to the subject matter hereof is superseded by
this Agreement. Nothing in this Agreement, expressed or implied, is intended to confer upon any
party other than the parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
SECTION 9.09. Severability. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.10. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall constitute an original but all of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 9.03.
SECTION 9.11. 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 are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Lender to or for the
credit or obligations of the Company and any Borrowing Subsidiary now or hereafter existing under
any Loan Document held by such Lender, irrespective of whether or not such Lender shall have made
any demand thereunder and although such obligations may be unmatured. Each Lender agrees promptly
to notify the Company and the Administrative Agent after such setoff and application made by such
Lender, but the failure to give such notice shall not affect the validity of such setoff and
application. 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 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (A) EACH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
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EXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK COUNTY, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY LETTER OF CREDIT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW.
(B) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR THEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN ANY NEW
YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(C) 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 9.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATION
IN THIS SECTION.
SECTION 9.15. Addition of Borrowing Subsidiaries. Within two Business Days after the receipt
by the Administrative Agent of a Borrowing Subsidiary
70
Agreement executed by a Subsidiary and the
Company, the Administrative Agent shall deliver to each Lender a notice of such request to become a
Borrowing Subsidiary under this Agreement. If the designation of such Borrowing Subsidiary
obligates the Administrative Agent or a Lender to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is not already available
to it, the Administrative Agent or such Lender shall deliver to the Company, within four Business
Days after the receipt of such Borrowing Subsidiary Agreement, a
request to that effect, and the Company shall, promptly upon receipt of such request, supply
such documentation and other evidence as is reasonably requested by the Administrative Agent or
such Lender in order for the Administrative Agent or such Lender to carry out and comply with the
requirements of the USA PATRIOT Act or any other applicable laws and regulations, and, unless the
results of such inquiry conflict with the requirements of such laws and regulations, or if no such
request by the Administrative Agent or any Lender is made within the time period set forth above,
such Borrowing Subsidiary shall become a party hereto and a Borrower hereunder with the same effect
as if it had been an original party to this Agreement. Notwithstanding the foregoing, no
Subsidiary shall become a Borrower Subsidiary if it shall be unlawful for such Subsidiary to become
a Borrower hereunder or for any Lender to make Loans or otherwise extend credit to such Subsidiary
as provided herein or for any Issuing Bank to issue Letters of Credit for the account of such
Subsidiary.
SECTION 9.16. 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 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 the Borrowers 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, the Borrowers agree, 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 9.16 shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.
SECTION 9.17. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that pursuant to
the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information
that identifies the Borrowers, which information
71
includes the name and address of each Borrower and
other information that will allow such Lender to identify the Borrowers in accordance with its
requirements.
72
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.
ITT CORPORATION, as Borrower, |
||||
by | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Senior Vice President and Chief Financial Officer |
|||
[Signature Page to Credit Agreement]
JPMORGAN CHASE BANK, NA., individually and as Administrative Agent, |
||||
by | /s/ Xxxx X. Xxxxxx | |||
Name: | XXXX X. XXXXXX | |||
Title: | MANAGING DIRECTOR | |||
[Signature Page to Credit Agreement]
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Citibank N.A. |
|||||
by | /s/ Xxxxxx Xxxxxxx | ||||
Name: | Xxxxxx Xxxxxxx | ||||
Title: | Vice President | ||||
For any Lender requiring a second signature block: |
|||||
by | |||||
Name: | |||||
Title: |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Barclays Bank PLC |
|||||
by | /s/ Xxxxx Xxxxxx | ||||
Name: | Xxxxx Xxxxxx | ||||
Title: | Director | ||||
For any Lender requiring a second signature block: |
|||||
by | |||||
Name: | |||||
Title: |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT OF
ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT OF
ITT CORPORATION
Name of Institution: Société Générale |
|||||
by | /s/ Xxx Xxxx | ||||
Name: | Xxx Xxxx | ||||
Title: | Vice President | ||||
For any Lender requiring a second signature block: |
|||||
by | |||||
Name: | |||||
Title: |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: THE BANK OF TOKYO- MITSUBISHI UFJ, LTD., NEW YORK BRANCH |
|||||
by | /s/ Xxxxxxx X. Xxxxx | ||||
Name: | Xxxxxxx X. Xxxxx | ||||
Title: | Authorized Signatory | ||||
For any Lender requiring a second signature block: |
|||||
by | |||||
Name: | |||||
Title: | |||||
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: The Royal Bank of Scotland, plc
by | /s/ L. Xxxxx Xxxxxx | |||
Name: | L. Xxxxx Xxxxxx | |||
Title: | SVP |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: U.S. Bank N.A.
by | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Vice President U.S. Bank, N.A. |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Xxxxx Fargo Bank, N.A.
by | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxx | |||
Title: | Vice President | |||
For any Lender requiring a second signature block:
by | ||||
Name: | ||||
Title: |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: BNP PARIBAS
by | /s/ Xxxxxxxxx Xxxxx | |||
Name: | Xxxxxxxxx Xxxxx | |||
Title: | Vice President | |||
For any Lender requiring a second signature block:
by | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Vice President |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Svenska Handelsbanken AB (publ)
New York Branch
New York Branch
by | /s/ Xxxx Xxxxxx | |||
Name: | XXXX XXXXXX | |||
Title: | Senior Vice President | |||
by | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: The Northern Trust Company
by | /s/ Xxxxxx X Xxxxx | |||
Name: | Xxxxxx X Xxxxx | |||
Title: | Senior Vice President | |||
For any Lender requiring a second signature block:
by | ||||
Name: | ||||
Title: |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: UBS Loan Finance LLC
by | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director | |||
For any Lender requiring a second signature block:
by | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Associate Director |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: ING Bank N.V. Dublin Branch
by | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Vice President | |||
For any Lender requiring a second signature block:
by | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Director |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Intesa Sanpaolo S.p.A. — New York
by | /s/ Xxxx Xxxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxxx | |||
Title: | First Vice President | |||
by | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Mizuho Corporate Bank (USA)
by | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Deputy General Manager |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Australia and New Zealand Banking Group Limited
by | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Deputy General Manager Head of Operations and Infrastructure |
|||
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: Crédit Industriel et Commercial
by | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | Vice President |
For any Lender requiring a second signature block:
by | /s/ Xxxxxx XxXxxx | |||
Name: | Xxxxxx XxXxxx | |||
Title: | Vice President |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: SEB AG
By | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: |
For any Lender requiring a second signature block:
By | /s/ Michaela Kalteier | |||
Name: | Michaela Kalteier | |||
Title: | ||||
![(STAMP)](https://www.sec.gov/Archives/edgar/data/216228/000095012310076219/y86093y8609300.gif)
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: The Bank of Nova Scotia
by | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: The Governor and Company of the Bank of Ireland
by | /s/ Ford Young | |||
Name: | Ford Young | |||
Title: | Director |
For any Lender requiring a second signature block:
by | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Managing Director | |||
SIGNATURE PAGE TO THE THREE-YEAR
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
OF ITT CORPORATION
Name of Institution: The Bank of New York Mellon
by | /s/ Xxxxxxx X. Xxxxxxx, Xx. | |||
Name: | Xxxxxxx X. Xxxxxxx, Xx. | |||
Title: | Vice President | |||